In The
Court of Appeals
For The
First District of Texas
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NO. 01-01-00021-CV
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CLIFFORD L. RAY, WILLIE J. RAY, ZELMA L. RAY, JOHN W. POWELL, & SOCCORA POWELL, Appellants
V.
BIRDWELL CONSTRUCTION & PASADENA TANK CORPORATION, Appellees
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 99-03278
O P I N I O N
This is a suit for property damage caused by a release of water from a water plant. The trial court granted appellees' motion for summary judgment, and appellants appeal that order. We affirm.
Background
Appellees, Birdwell Construction (Birdwell) and Pasadena Tank Corporation (Pasadena), performed services on a City of Houston water plant. On or around October 25, 1997, while Birdwell and Pasadena were working on the plant, a large amount of water was released, which allegedly caused property damage to the homes of appellants, Clifford Ray, Willie J. Ray, Zelma L. Ray, John W. Powell, & Soccora Powell (Ray). On January 22, 1999, Ray filed suit against the City of Houston for negligence. On October 8, 1999, Ray amended his petition and added Birdwell and Pasadena as defendants. Birdwell was served on March 13, 2000, four months and nineteen days after the statute of limitations had run. Pasadena was served on March 15, 2000, four months and twenty-one days after the statute of limitations had run.
On July 25, 2000, Birdwell and Pasadena filed a motion for summary judgment based on the statute of limitations. On August 18, 2000, the trial court granted Birdwell and Pasadena's motion for summary judgment. (1)
In one point of error, Ray argues that the trial court erred when it granted Birdwell's motion for summary judgment because: (1) Birdwell did not meet its burden of proof and (2) Ray raised genuine issues of fact about whether he exercised due diligence in effecting service.
Summary Judgment
When a defendant moves for summary judgment on an affirmative defense, he must conclusively prove all the essential elements of his defense as a matter of law. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984).
In determining whether a disputed issue of material fact exists, thereby precluding summary judgment, the court must review the proof in the light most favorable to the non-movant by making all reasonable inferences and resolving all doubts in favor of the non-movant. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
Service
In his sole point of error, Ray argues that Birdwell did not satisfy his burden of proof in the summary judgment proceedings, and that he raised genuine issues of fact about due diligence.
In order to "bring suit" within the applicable two-year limitations period, a plaintiff must both file suit within the two-year period and use due diligence to have the defendant served with process. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990). If the petition is filed within the limitations period, but the defendant is not served until the statutory period has expired, the date of service relates back to the date of filing, if the plaintiff exercises due diligence in obtaining service. Id. at 259-60. The party requesting service must ensure service is properly accomplished. Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167, 168 (Tex. App.--Texarkana 1997, no writ).
Birdwell moved for summary judgment based on its having been served beyond the statute of limitations. In its motion, it noted that the cause of action accrued on October 25, 1997. Ray filed suit against Birdwell on October 8, 1999, within the two-year statute of limitations. Ray requested issuance of citation on January 20, 2000, and the clerk's office had the citation ready for pick-up on February 11, 2000. Service was finally accomplished on March 10, 2000. Birdwell argued that the four- and-a-half month delay between the expiration of the statute of limitations and service entitled it to judgment as a matter of law.
Due Diligence
Because Birdwell was not served within the statute of limitations, the burden shifted to Ray to raise a fact issue on Birdwell's affirmative defense of lack of diligence. Holstein v. Federal Debt Management, Inc. 902 S.W.2d 31, 35 (Tex. App. [1st Dist.] 1995, no writ). Due diligence requires that the plaintiff exercise "that diligence to procure service which an ordinarily prudent person would have used under the same or similar circumstances." Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 590 (Tex. App.--Corpus Christi 1994, no writ). It also requires that the plaintiff diligently pursue service on the defendant. Hodge v. Smith, 856 S.W.2d 212, 215 (Tex. App.--Houston [1st Dist.] 1993, writ denied). Generally, the question of diligence is a question of fact, but if no excuse is offered for a delay in the service of citation, "or if the lapse of time and the plaintiff's acts are such as conclusively negate diligence, a lack of diligence will be found as a matter of law." Webster v. Thomas, 5 S.W.3d 287, 289 (Tex. App.--Houston [14th Dist.] 1999, no pet.). Due diligence can be determined in the defendant's favor as a matter of law if the plaintiff provides no valid excuse for its failure to timely serve process. Holstein, 902 S.W.2d at 35-36 (emphasis added).
In Ray's response to Birdwell's motion for summary judgment, he gave three reasons for the delay of service: (1) there were errors in the citation; (2) there was uncertainty as to the proper party and registered agent of appellees; and (3) the delay was partially caused by the clerk's office. We address these in turn.
a. Errors in Citation
In his affidavit attached to the response to the motion for summary judgment, Ray's counsel stated that he ordered citations from the clerk's office on October 25, 1999, and they were prepared on October 27, 1999. At some point, Ray determined that the citations referred to the second amended petition instead of the third amended petition. Therefore, Ray had to correct the citations to refer to the third amended petition. The citations were ordered for the second time on January 20, 2000.
The evidence shows that the second and third amended petitions were both filed on October 25, 1999. Even though both petitions were filed on the same day, the citations were not corrected until January 20, 2000, nearly three months later. Thus, Ray could have requested citation on October 25, 1999, if not for his own mistake. We conclude that Ray's failure to request issuance of citation after filing the third amended petition was not a valid excuse.
b. Uncertain Identity of Birdwell or its Agent
Ray's affidavit states that the delay in requesting citation occurred because Ray's counsel had difficulty identifying Birdwell and its agent. Specifically, there was confusion because there were various construction companies named Birdwell, each with different agents.
However, in Ray's second amended petition, the following line is included: "Defendant, Birdwell Construction, is a Texas company and may be served with citation in care of Brad Birdwell, at 9720 Derrington, Houston, Texas 77064." Birdwell's summary judgment evidence shows that this was the correct address and the proper agent to serve. Thus, it is apparent that Ray had knowledge of the proper party and its registered agent on October 25, 1999. We conclude that the evidence offered by Ray does not amount to a valid excuse.
c. Delay by Clerk's Office
Ray ordered citations on January 20, 2000, and the citations were ready on February 11, 2000. Ray attributes this 22-day delay on printer problems at the clerk's office. The next delay occurred because Ray did not pick up the citations until March 10, 2000. He attributes this 29-day delay on the clerk's office having trouble locating the citations.
In Webster v. Thomas, the court was faced with a situation where service was not obtained until four months and ten days after suit was filed. 5 S.W.3d 287, 290 (Tex. App.--Houston [14th Dist.] 1999, no pet.). In addressing whether due diligence was used, the court stated that there was no summary judgment evidence to show what counsel said to the clerk's office when he called to see if the citation was ready. Id. Similarly, Ray has not presented summary judgment evidence which shows whether he told the clerk that the case was old, to whom he spoke, or whether he just asked to see if the papers were ready. This evidence does not raise a material issue of fact regarding Ray's due diligence to serve Birdwell during this delay.
Ray has not proffered a valid excuse for the nearly three-month delay between October 25, 1999 and January 20, 2000. Accordingly, we conclude that the trial court properly granted Birdwell's summary judgment because Ray did not raise a material issue of fact on whether he used due diligence in serving Birdwell.
We overrule Ray's sole point of error.
Conclusion
We affirm the judgment of the trial court.
Adele Hedges
Justice
Panel consists of Chief Justice Schneider and Justices Hedges and Nuchia.
Do not publish. Tex. R. App. P. 47.4.
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