Opinion
NO. 02-15-00257-CV
05-26-2016
NICOLE WASHKO APPELLANT v. SIMON PROPERTY GROUP, INC. AND SIMON PROPERTY GROUP (TEXAS), L.P. APPELLEES
FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 236-272988-14 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
The question in this summary judgment appeal is whether Appellant Nicole Washko failed to exercise diligence in serving Appellees Simon Property Group, Inc. (SPGI) and Simon Property Group (Texas), L.P. (SPGT) as a matter of law. She did. We will affirm.
On July 10, 2012, Washko tripped and fell while walking in the parking lot of Grapevine Mills Mall. Just under two years later, on July 7, 2014, she electronically filed her original petition against Appellees, alleging premises liability and negligent activity claims. A few weeks later, on July 31, 2014, Washko electronically requested that citation be issued for SPGI and that it be served via certified mail. The clerk's office "accepted" the electronic filing and charged her attorney's firm credit card for the citation fee and the service fee. Washko's attorney "assumed that since service was to be mailed to CT Corporation System, a service agent used by many businesses, if there were any issues with service, [his] office would be notified accordingly." However, approximately eight months later, on March 30, 2015, Washko's attorney was conducting a case review and realized that SPGI had not filed an answer. Further inquiry revealed that SPGI had not been served because the fee for the service copy had not been paid. Washko's attorney paid the copy fee the following day, and SPGI was served on April 8, 2015. A citation issued for SPGT on April 17, 2015, and it was served on April 20, 2015.
Washko named several other defendants, but she later nonsuited the claims against them.
Appellees each timely filed answers and pleaded and moved for summary judgment on the affirmative defense of limitations. The trial court granted Appellees' motions and denied Washko's motion for new trial.
Washko argues in her only issue that the trial court erred by granting summary judgment for Appellees because she raised a fact issue regarding the diligence that she exercised in serving Appellees. Specifically, Washko claims that service was delayed because of a miscommunication between her attorney and the clerk's office:
[T]he [electronic] filing was "accepted" by the clerk's office. It is [Washko's] contention that if issuance and delivery of the citation via certified mail was to be contingent on payment of the $2.10 copy fee, then the request should have been "rejected," immediately alerting counsel's office to this deficiency. By "accepting" the filing instead of "rejecting" it, the clerk's office communicated to counsel's staff that the request was accomplished. [footnote omitted]
This text is taken from Washko's responses to Appellees' motions for summary judgment. --------
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). A defendant is entitled to summary judgment on an affirmative defense if it conclusively proves all the elements of the affirmative defense. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508-09 (Tex. 2010), cert. denied, 562 U.S. 1180 (2011); see Tex. R. Civ. P. 166a(b), (c).
When a plaintiff files a petition within the limitations period but does not serve the defendant until after the statutory period has expired, the date of service relates back to the date of filing if the plaintiff exercised diligence in effecting service. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990). Once a defendant has affirmatively pleaded the defense of limitations and shown that service was obtained after limitations expired, the burden shifts to the plaintiff to explain the delay. Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007). Diligence is determined by asking whether the plaintiff acted as an ordinarily prudent person would have acted under the same or similar circumstances and was diligent in effecting service up until the time the defendant was served. Id. Although a fact question, a plaintiff's explanation may demonstrate a lack of diligence as a matter of law when one or more lapses between service efforts are unexplained or patently unreasonable. Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009).
As to SPGI, Washko's explanation about a miscommunication does nothing to clarify why she waited until late March 2015 to perform a case review and inquire into why SPGI had not filed an answer. See Proulx, 235 S.W.3d at 216 (requiring diligence up until the time of service). Indeed, if Washko thought that SPGI had been served after she requested citation and service on July 31, 2014, then SPGI's answer would have been due "on or before 10:00 a.m. on the Monday next after the expiration of twenty days after the date of service"—sometime most likely in late August 2014 or by early September 2014, not months later in March 2015. Tex. R. Civ. P. 99(b). Thus, even if Washko relied upon the clerk's notification that her filing had been "accepted" and thought that SPGI had been served, she nonetheless failed to check on the status of the case and question why SPGI had not filed an answer until some six or seven months after SPGI's answer would have been due, and she offered no summary-judgment evidence to explain the lengthy delay between when SPGI's answer would have been due and when she actually reviewed the case. See Ashley, 293 S.W.3d at 179; Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167, 169 (Tex. App.—Texarkana 1997, no writ) ("It is the responsibility of the party requesting service to ensure that service is properly accomplished.").
As for SPGT, it was named in Washko's original petition, but unlike with SPGI, Washko did not request citation and service until mid-April 2015. Her unexplained delay in service is no more convincing as to SPGT than it is for SPGI.
Washko argues that this case is like Valdez v. Charles Orsinger Buick Company, 715 S.W.2d 126 (Tex. App.—Texarkana 1986, no writ), and Saenz v. Keller Industries of Texas, Inc., 951 F.2d 665 (5th Cir. 1992). Neither case persuades us that Washko raised a fact issue on diligence.
In Valdez, the plaintiff's law firm sued two defendants on August 1, 1984. 715 S.W.2d at 127. The firm issued a check that its messenger assumed was sufficient to cover the citation fee for both defendants, but the clerk's office assumed that only one citation was supposed to issue because the check covered the cost to serve only one defendant. Id. at 128. The law clerk for Valdez's attorney handled the case until he left the firm in late 1984. Id. Valdez's attorney then took over the case, and in January 1985, he discovered that Orsinger Buick had not been served, so he paid the citation fee and had it served. Id. Considering the miscommunication regarding the citation fee and that Valdez's attorney had Orsinger Buick served soon after taking over the case from his law clerk, the court of appeals concluded that Valdez's explanation for the delay in serving Orsinger Buick was sufficient to raise a fact issue as to diligence. Id. at 128. Valdez is factually distinguishable. Not only is there no evidence of an actual miscommunication between Washko's attorney and the clerk's office—Washko's attorney simply did not pay the copy fee—but there is no evidence that someone other than Washko's attorney had previously been assigned the case and that Washko's attorney discovered that Appellees had not been served upon assuming responsibility for the case.
In Saenz, when the plaintiff's law firm filed suit in February 1989, it relied upon the clerk's representation that all of the appropriate forms had been submitted. 951 F.2d at 666. As it turns out, the summons request form required by the local rules was not attached, and summons did not issue for service upon the defendants. Id. The secretary for Plaintiff's firm thereafter called the clerk's office and inquired about service "several times," and each time the clerk said that service had not yet been accomplished. Id. at 666-67. Finally, on May 8, 1989, the clerk told the secretary that no summons was on file. Id. at 667. The plaintiff's attorney then submitted a summons request form, and the defendants were served on May 24, 1989. Id. The appellate court expressly relied upon Valdez and concluded that "the explanation for delay offered by the Plaintiffs in this case—reliance on a miscommunication with the district clerk's office coupled with a failure to observe local rules—does not conclusively negate due diligence." Id. at 668. Like Valdez, Saenz is distinguishable. Notwithstanding the absence of a miscommunication between Washko's attorney and the clerk's office, significantly, there is no evidence that Washko's attorney or someone in his office made repeated inquiries into the status of the case until it was discovered on March 30, 2015, that SPGI had not been served.
Washko offered no evidence to explain the months-long lapses in service upon both SPGI and SPGT. Therefore, she failed to raise a fact issue demonstrating that she exercised diligence in serving Appellees. See Ashley, 293 S.W.3d at 179; Proulx, 235 S.W.3d at 216. We hold that the trial court did not err by granting summary judgment in favor of Appellees. We overrule Washko's sole issue and affirm the trial court's judgments.
/s/ Bill Meier
BILL MEIER
JUSTICE PANEL: DAUPHINOT, GARDNER, and MEIER, JJ. DELIVERED: May 26, 2016