Opinion
No. 04-04-00178-CV
Delivered and Filed: February 16, 2005.
Appeal from the 45th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CI-09820, Honorable Barbara Hanson Nellermoe, Judge Presiding.
Affirmed.
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Diego Vasquez appeals the summary judgment rendered in favor of Manuel Pelaez-Prada for injuries he suffered due to Pelaez's alleged negligence and legal malpractice arising out of the attorney-client relationship. Pelaez filed his motion for summary judgment on the ground that he was not served with process within the time period prescribed by the statute of limitations, which the trial court granted. On appeal, Vasquez argues that the trial court erred in granting summary judgment. We overrule this issue and affirm the judgment of the trial court.
BACKGROUND
Pelaez is an attorney licensed in the State of Texas. On June 28, 2001, Vasquez retained Pelaez's services in connection with a personal injury claim. In that case, Pelaez failed to file suit on behalf of Vasquez within the applicable statute of limitations, which expired on July 22, 2001. Consequently, Vasquez filed an Original Petition against Pelaez on June 26, 2003, alleging injuries resulting from negligence and legal malpractice arising out of their attorney-client relationship. After filing his petition, Vasquez delayed approximately five months before requesting issuance of citation on November 18, 2003.
Pelaez moved for summary judgment on the basis that Vasquez's suit was barred by limitations because he failed to exercise due diligence in obtaining issuance and service of citation. Vasquez presented no written response to Pelaez's motion for summary judgment. On January 14, 2004, the trial court granted summary judgment in favor of Pelaez. Vasquez appeals from this summary judgment.
DISCUSSION
Vasquez argues that the trial court erred in granting Pelaez's motion for summary judgment. In his motion for summary judgment, Pelaez asserted that Vasquez's claim was barred by limitations because he did not procure issuance and service of citation within the two-year time limit. See TEX. CIV. PRAC. REM. CODE ANN. § 16.003 (Vernon 1997 Supp. 2004-05). On appeal, Vasquez contends that because he exercised due diligence in serving the citation, the date of service relates back to the date of filing. We disagree.
A plaintiff must "bring suit" within the applicable statute of limitations period. See Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990). "Bringing suit" within a limitations period involves both filing a petition within the applicable time period and exercising due diligence in serving the defendant with citation. See id.; Rodriguez v. Tinsman Houser, Inc., 13 S.W.3d 47, 49 (Tex.App.-San Antonio 1999, pet. denied). Therefore, when the plaintiff files a petition within the limitations period, but fails to serve the defendant until after the statutory period has run, the suit is time-barred unless it is shown that the plaintiff exercised diligence in effecting service. See Gant, 786 S.W.2d at 260 (holding that date of service relates back to date of filing if plaintiff exercised due diligence); Rodriguez, 13 S.W.3d at 49.
A defendant seeking summary judgment because the plaintiff was not diligent in serving process must show that the plaintiff was not diligent in effecting service as a matter of law. See Gant, 786 S.W.2d at 260. In general, whether the plaintiff exercised diligence in obtaining service is a question of fact. See Rodriguez, 13 S.W.3d at 49. However, when no valid excuse for the delay is offered or when the time lapses and the plaintiff's acts or inaction conclusively negate diligence, a lack of diligence will be found as a matter of law. Id.
Looking at the totality of the record, the summary judgment evidence shows that Vasquez did not diligently seek service of process. Vasquez's cause of action accrued on July 22, 2001. See Anderson v. Sneed, 615 S.W.2d 898, 899-900 (Tex.App.-El Paso 1981, no writ) (when attorney's negligence consists of failing to perform a particular act in a timely manner, the cause of action accrues when the deadline for performing that act occurs). Vasquez filed his original petition on June 26, 2003, which was within the limitations period. See Apex Towing Co. v. Tolin, 41 S.W.3d 118, 120 (Tex. 2001) ("two-year statute of limitations governs legal malpractice claims, whether they sound in tort, contract, or other theory"). Vasquez did not request issuance of citation, however, until November 18, 2003. On appeal, Vasquez concedes that he did not serve Pelaez within the limitations period, but contends that this delay was reasonable due to his inability to locate Pelaez. This evidence, however, is outside of the record. Here, an unexplained lapse of approximately five (5) months exists between the time Vasquez filed suit and his request for issuance of citation. This lapse of time, together with his inaction, is evidence that Vasquez lacked due diligence as a matter of law. Consequently, we hold that the trial court did not err in determining that limitations barred Vasquez's negligence claims as a matter of law.
Vasquez did not file a response to Pelaez's motion for summary judgment. Therefore, the only ground for reversal the non-movant may assert on appeal is the legal insufficiency of the motion for summary judgment and the supporting proof. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Holt v. D'Hanis State Bank, 993 S.W.2d 237, 241 (Tex.App.-San Antonio 1999, no pet.).
Texas courts have consistently held that unexplained delays of five and six months in procuring issuance and service of citation constitute a lack of due diligence as a matter of law. See Keeton v. Carrasco, 53 S.W.3d 13, 18 (Tex.App.-San Antonio 2001, pet. denied); see also Southern County Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 462 (Tex.App.-Corpus Christi 2000, no pet.) (citing six cases in which five or six months delays held to constitute lack of due diligence as a matter of law).
CONCLUSION
Because Vasquez failed to serve Pelaez until after the limitations period had expired and lacked due diligence as a matter of law, the date of service does not relate back to the date of filing. Therefore, we hold that the trial court did not err in determining that limitations barred Vasquez's negligence claims as a matter of law. We affirm the judgment of the trial court.