Opinion
No. 04-05-00244-CV
Delivered and Filed: February 15, 2006.
Appeal from the 224th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CI-08600, Honorable Barbara Nellermoe, Judge Presiding.
Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Otto Imming, Jr. appeals the trial court's summary judgment in favor of Bexar County Sheriff Ralph Lopez on Imming's claim for breach of a constitutionally-protected fiduciary duty Imming alleges was owed him by Lopez. We affirm the trial court's judgment.
It is well-settled that "[m]ere filing of suit . . . will not interrupt the running of limitations unless due diligence is exercised in the issuance and service of citation." Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990). Imming argues he was diligent in effecting service because he requested the issuance of a citation in his petition, wrote the clerk numerous times for status updates, and ultimately served Lopez. However, because Imming failed to respond to Lopez's summary judgment motion in the trial court, his appellate challenge is limited to the legal sufficiency of Lopez's summary judgment motion and proof. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).
To obtain a summary judgment on limitations, the movant must establish that he was not served within the limitations period. See Murray, 800 S.W.2d at 830; Tranter v. Duemling, 129 S.W.3d 257, 260 (Tex.App.-El Paso 2004, no pet.). The respondent may then file a response raising a genuine issue of material fact on whether he exercised diligence in attempting to effectuate service and shift the burden to the movant to negate diligence as a matter of law. See Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990).
Here the record establishes that Imming's cause of action accrued on July 19, 1999 and he filed suit less than four years later on June 3, 2003. However, Lopez was not served until July 9, 2004 and July 13, 2004, more than four years after Imming's cause of action accrued and approximately one year after the limitations period had run. Lopez's motion and proof are thus legally sufficient to establish that Imming failed to timely serve Lopez. And this fact is established as a matter of law since Imming did not file a response to Lopez's motion for summary judgment. We therefore affirm the trial court's summary judgment.
Lopez also moved for summary judgment on the basis that Imming's "state-law claims" and "constitutional claims" were barred by the applicable two-year statute of limitations. Although Imming argues the trial court erred in applying the two-year statute of limitations period, he does so only in the context of his breach of fiduciary claim. Thus, the breach of fiduciary claim is our sole focus.