Opinion
No. 05-02-01157-CV.
Opinion Filed March 27, 2003.
Appeal from the 191st District Court, Dallas County, Texas, Trial Court Cause No. 00-10215-J.
AFFIRM.
Before Justices JAMES, BRIDGES and RICHTER.
MEMORANDUM OPINION
Appellant Sanderson appeals a summary judgment granted in favor of appellee Vela in a personal injury suit stemming from a motor vehicle accident. In his summary judgment motion, Vela asserted that the suit was barred by the affirmative defense of limitations because of a lack of due diligence in service of process. In one issue, appellant claims the trial court erred in granting summary judgment because there is a material issue of fact as to whether or not she exercised due diligence in effectuating service. We affirm the trial court's judgment.
Background
On December 28, 1998, appellant's automobile was allegedly struck by appellee causing appellant injuries. On December 27, 2000, appellant filed suit. Citation issued the next day. On January 12, 2001, appellant's private process server picked up the citation from the courthouse. That process server delegated the act of service to another court approved process server. Appellant's attorney alleged in an affidavit that he called the original process server a few times in February 2001 to ascertain the status of service, but only learned that the original process server would "check" with the server to whom service had been delegated. Thereafter, on April 2, 2001, appellant received notice from the court of a final disposition hearing. By late July 2001, Appellant determined that the process server delegated to effectuate service could not be located. On July 30, 2001, citation was re-issued and another process server was dispatched to effectuate service. Appellant's affidavit evidence asserts that the appellee's family concealed him in these latter attempts at service. Appellant ultimately had to resort to substituted service on January 3, 2002.
Standard of Review
The standards for reviewing a summary judgment are well established: (1) the movant for summary judgment has the burden of showing there is no genuine issue of material fact and it is entitled to summary judgment as a matter of law; (2) in deciding whether there is a disputed fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nat'l. Cas. Co. v. Lane Exp., Inc., 998 S.W.2d 256, 259 (Tex.App.-Dallas 1999, pet. denied)(citing Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985)). A defendant is entitled to summary judgment when each element of an affirmative defense to plaintiff's cause of action has been established as a matter of law. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990); Holt v. D'Hanis State Bank, 993 S.W.2d 237, 240 (Tex.App.-San Antonio 1999, no pet.).
Applicable Law
A plaintiff must file suit within the applicable limitations period and use diligence to have the defendant served. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (per curiam)(citing Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180, 182 (Tex. 1970)). The date of service relates back to the date of filing of the petition only if the plaintiff exercised diligence in effecting service. Id. (citing Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 890 (Tex. 1975) (per curiam)). The mere filing of suit will not interrupt the running of limitations unless a plaintiff exercises due diligence in the issuance and service of citation. Rigo Mfg. Co., 458 S.W.2d at 182; Perkins v. Groff, 936 S.W.2d 661, 667-68 (Tex.App.-Dallas 1996, writ denied). A party who files suit, but does not effect service until after limitations has run must show a bonafide immediate intention to serve the defendant. See Buie v. Couch, 126 S.W.2d 565, 566 (Tex.Civ.App.-Waco 1939, writ ref'd). The party requesting service, not the process server, is responsible for properly accomplishing service. Tex.R.Civ.P. 99(a); Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994); Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 590 (Tex.App.-Corpus Christi 1994, no writ).
A defendant who seeks summary judgment because the plaintiff was not diligent in serving process must show plaintiff was not diligent in effecting service as a matter of law. Gant, 786 S.W.2d at 260 (citing Zale Corp, 520 S.W.2d at 890); Boyattia v. Hinojosa, 18 S.W.3d 729, 733 (Tex.App.-Dallas 2002, pet. denied); Broom v. MacMaster, 992 S.W.2d 659, 664 (Tex.App.-Dallas 1999, no pet.). Whether the plaintiff exercised diligence in obtaining service is generally a question of fact. But if no valid excuse is offered or the time lapses and the plaintiff's acts conclusively negate diligence, a lack of diligence will be found as a matter of law. Gonzalez, 884 S.W.2d at 590 (citing Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex.App.-Corpus Christi 1991, no writ)).
An offered explanation must involve diligence to seek service of process. Keeton v. Carrasco, 53 S.W.3d 13, 18 (Tex.App.-San Antonio 2001, pet. denied); Rodriguez v. Tinsman Houser, Inc., 13 S.W.3d 47, 49 (Tex.App.-San Antonio 1999, pet. denied). Not every offered explanation raises a fact question about due diligence. Keeton at 18; Rodriguez at 50. Lack of diligence can be found even in the face of an offered explanation if that explanation affirmatively establishes lack of reasonable diligence. Keeton at 18; Rodriguez at 49. A fact issue exists if the offered explanation is reasonable or valid. Keeton at 18; Rodriguez at 50.
Application of Law to Facts
After requesting service of citation by a process server, appellant took no other steps to insure that service was effectuated, other than a few phone calls, until notified of the final disposition hearing. After waiting for four months and then receiving notice of the final disposition hearing, appellant did nothing further to effectuate service for an additional two months. We conclude that this relative inaction constitutes a lack of due diligence as a matter of law.
Furthermore, we conclude that appellant has not offered any reasonable or valid excuse for his delay. A party may not abdicate responsibility for timely service to a process server. Gonzalez, 884 S.W.2d at 590. Further, merely speaking to the process server on several occasions to ascertain the status of service is not due diligence. See id.
Even though appellant took some affirmative steps to obtain service of process after the six month period had elapsed, these latter actions do not cure the initial six months lack of due diligence. Even a three month unexplained delay can constitute a lack of due diligence. Boyattia, 18 S.W.3d at 734; Holt, 993 S.W.2d at 241.
We affirm the trial court's judgment.