Opinion issued May 6, 2010
In The
Court of Appeals
For The
First District of Texas
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NO. 01-09-00733-CV
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Vascola Stoney, Appellant
V.
Alice Gurmatakis, Appellee
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Case No. 2008-76239
MEMORANDUM OPINION
Appellant, Vascola Stoney, challenges the trial court’s rendition of summary judgment in favor of appellee, Alice Gurmatakis, in Stoney’s suit against Gurmatakis for negligence and negligence per se. In a single issue, Stoney contends that the trial court erred in granting Gurmatakis’s summary judgment motion on limitations grounds.[1]
We affirm.
Background
In her petition, filed on December 9, 2008, Stoney alleged that on December 23, 2006, Gurmatakis negligently caused an automobile collision, damaging Stoney’s car and causing Stoney personal injuries. Gurmatakis generally denied Stoney’s claims and asserted the affirmative defense of limitations. Gurmatakis subsequently filed her summary judgment motion, asserting that although Stoney timely filed her petition within two years from the date of the collision, Stoney “did not use due diligence” in serving her because citation was not issued until April 2, 2009 and she was not served until May 9, 2009. Gurmatakis attached to her motion a copy of the citation, which included handwritten notations indicating that the process server had received it on April 20, 2009 and had served Gurmatakis on May 9, 2009. Gurmatakis asserted that there is no evidence that Stoney made any request to issue citation between December 9, 2008 and April 2, 2009 nor of any attempt to serve her between December 9, 2008 and May 9, 2009. Gurmatakis argued that because there is no evidence of any valid excuse for the delay during these periods, Stoney’s claims are barred as a matter of law by limitations.
In her response, Stoney asserted that on December 5, 2008,[2] she sent her petition by mail to the Harris County District Clerk’s office, and, on December 9, 2008, the district clerk received and filed the petition. In response to Gurmatakis’s assertion that she had not used diligence in procuring service, Stoney attached the affidavit of paralegal LaKeisha Mayes, who worked in the office of Stoney’s counsel. Mayes testified that on December 9, 2008, the district clerk received the “petition and requisite filing fees.” On February 13, 2009, Mayes “called the firm’s process server regarding the status of service,” and she “was informed that they had not received citation from the court.” Mayes “then contacted the clerk’s office, and was informed that citation should have been mailed back to the law firm’s office.” Mayes noted that “[a]fter several weeks of investigation and numerous telephone calls with the clerk’s office, in March 2009, [she] was informed . . . [by] the district clerk’s office that an additional eight dollar fee was needed in order to issue citation.” Accordingly, on March 12, 2009, Stoney’s counsel “sent in the eight dollar fee,” this fee “was accepted by the district clerk’s office on March 31, 2009,” and “soon thereafter, the petition and citation were mailed to the law firm’s office.” On April 6, 2009, Stoney’s petition and citation were mailed to the process server, Mayes was “thereafter” informed that “a new service address was needed” for Gurmatakis, and, “[a]fter providing a new service address,” Gurmatakis was served on May 9, 2009. Stoney also attached to her response documents establishing that the process server received the citation on April 17, 2009 and completed service on May 9, 2009. Stoney argued, thus, that she had exercised due diligence in serving Gurmatakis and that the date of service should relate back to the date of filing.
In her reply, Gurmatakis asserted that the evidence demonstrated lack of diligence as a matter of law because Stoney had failed to request issuance of citation until March 2009 and explain the two month delay in investigating the status of service after the expiration of the limitations period.
Standard of Review
To prevail on a summary judgment motion, a movant has the burden of proving that it is entitled to judgment as a matter of law and that there is no genuine issue of material fact. Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). When a defendant moves for summary judgment, it must either (1) disprove at least one essential element of the plaintiff’s cause of action or (2) plead and conclusively establish each essential element of its affirmative defense, thereby defeating the plaintiff’s cause of action. Cathey, 900 S.W.2d at 341; Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d 399, 404 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). When deciding whether there is a disputed, material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). Every reasonable inference must be indulged in favor of the non-movant and any doubts must be resolved in its favor. Id. at 549.
Diligence in Service
In a single issue, Stoney argues that the trial court erred in granting Gurmatakis’s summary judgment motion on limitations grounds because she presented “competent, controverting summary judgment evidence that she exercised due diligence in serving Gurmatakis.”
If a plaintiff files her petition within the limitations period, but obtains service on the defendant outside of the limitations period, such service is valid only if the plaintiff exercised “diligence” in procuring service. Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009); see also Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007) (explaining that “a timely filed suit will not interrupt the running of limitations unless the plaintiff exercises due diligence in the issuance and service of citation”). If a plaintiff diligently effects service after the expiration of the statute of limitations, the date of service relates back to the date of filing. Proulx, 235 S.W.3d at 215. If a defendant affirmatively pleads the defense of limitations and shows that service has occurred after the limitations deadline, the burden shifts to the plaintiff to prove diligence. Ashley, 293 S.W.3d at 179; Proulx, 235 S.W.3d at 216. The plaintiff then must present evidence regarding the efforts made to serve the defendant and “explain every lapse in effort or period of delay.” Proulx, 235 S.W.3d at 216. The issue is “whether the plaintiff acted as an ordinarily prudent person would have acted under the same or similar circumstances and was diligent up until the time the defendant was served.” Ashley, 293 S.W.3d at 179 (citations omitted). Thus, the question of the plaintiff’s diligence in obtaining service is generally “one of fact” to be “determined by examining the time it took to secure citation, service, or both, and the type of effort or lack of effort the plaintiff expended in procuring service.” Proulx, 235 S.W.3d at 216. However, a plaintiff’s explanation of its efforts to obtain service may demonstrate a lack of diligence “as a matter of law” when “one or more lapses between service efforts are unexplained or patently unreasonable.” Id.
A plaintiff must bring a suit for personal injuries within two years from the time the cause of action accrued. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (Vernon Supp. 2009). The collision occurred on December 23, 2006; Stoney mailed her petition to the district clerk’s office on December 5, 2008; and the clerk’s office received her petition on December 9, 2008, before the expiration of the two year limitations period, which expired on December 23, 2008. However, Gurmatakis established that she was not served until May 9, 2009, which was approximately four and one-half months after the expiration of the limitations period. Thus, the burden shifted to Stoney to explain her diligence in procuring service on Gurmatakis.
Our focus in this case is on the diligence, or lack of diligence, used by Stoney’s counsel in procuring the issuance of citation. Proulx, 235 S.W.3d at 216. More specifically, our focus is on the period spanning the filing of Stoney’s petition, the expiration of the limitations period fourteen days later, and Mayes’s calls to the process server and clerk about the status of the citation, which Mayes made approximately sixty five days after filing Stoney’s petition and fifty one days after the limitations period had expired.[3]
In support of her explanation of the delay in procuring the citation and as evidence of diligence, Stoney relies upon the affidavit of Mayes. However, Mayes, in her testimony, did not provide an explanation for the approximately two month delay in contacting the clerk’s office on February 13, 2009 to inquire about the issuance of citation. Although Mayes testified that “several weeks of investigation and numerous telephone calls with the clerk’s office” followed her initial inquiry, she did not explain why neither she nor anyone else working on Stoney’s behalf made an attempt to determine the status of citation and service. Rather than provide some evidence that might create a fact issue on limitations, Mayes actually established that Stoney’s counsel failed to exercise diligence as a matter of law in procuring citation and service. First, Mayes did not reference the period of time that passed from the filing of the petition, the expiration of the limitations period, and her initial inquiry with the process server and clerk’s office. Second, she did establish that Stoney’s counsel had failed to provide the clerk’s office with the necessary fees for the issuance of citation. Third, she offered no evidence that the delay during this period in procuring citation and service was in any way attributable to the clerk or a third party like a process server or constable.
As noted above, in determining diligence, we examine “the time it took to secure citation, service, or both, and the type of effort or lack of effort the plaintiff expended in procuring service.” Proulx, 235 S.W.3d at 216 (emphasis added); see also Mauricio v. Castro, 287 S.W.3d 476, 479 (Tex. App.—Dallas 2009, no pet.) (“Texas courts have consistently held that lack of diligence may be shown based on unexplained lapses of time between the filing of the suit, issuance of the citation, and service of process.”). The record before us establishes that Stoney’s counsel failed to exercise diligence in securing the citation by waiting approximately two months after filing suit to inquire with the clerk’s office as to whether citation had even been issued. See Webster v. Thomas, 5 S.W.3d 287, 289–90 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (holding plaintiff failed to use due diligence as matter of law, in part, because evidence showed that during three month period from filing of petition to issuance of citation, plaintiff called wrong clerk’s office when inquiring about issuance of citation); Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 590 (Tex. App.—Corpus Christi 1994, no writ) (holding that “mere reliance on a process server and a delay of five months after the expiration of the statute of limitations do not, as a matter of law, constitute due diligence in procuring issuance and service of citation”); Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex. App.—Corpus Christi 1991, no writ) (stating that record was void of any evidence showing due diligence in issuing service of citation, and holding that unexplained delay in procuring citation of until five months after expiration of statute of limitations was not due diligence as matter of law). Moreover, when Mayes finally called the process server and, subsequently, the clerk’s office to inquire after waiting two months, Mayes initially learned that the citation should have been mailed back to the law firm and ultimately that the clerk’s office required an additional eight dollar fee to issue citation.
To the extent that Stoney might argue that the district clerk’s office failed to either properly mail the citation back to the law firm or timely communicate that additional fees were needed to issue citation, we find instructive the Dallas Court of Appeals opinion in Boyattia v. Hinojosa. 18 S.W.3d 729 (Tex. App.—Dallas 2000, pet. denied). In Boyattia, the plaintiff filed her petition the day before the limitations period expired. Id. at 732. Although citations were issued the same day, a citation to one of the defendants was not delivered to the constable for service until three months later. Id. The plaintiff failed to provide any explanation for this delay. Id. at 733. The court recognized that it is the duty of the clerk to issue citations and “deliver them as directed by the party requesting issuance” and that a plaintiff “may ordinarily rely on the clerk to perform his duty within a reasonable time.” Id. at 733–34. However, the court concluded that “when a party learns, or by the exercise of diligence should have learned, that the clerk has failed to fulfill his duty . . . , it is incumbent upon the party to ensure that the job is done.” Id. at 734. The court explained that a plaintiff “who wholly ignores her duty to have the citation served on the defendant during a lengthy period of time [in which] the citation remains with the clerk does not manifest a bona fide intention to have process served.” Id. The court held that the plaintiff’s failure to take any action during the clerk’s three-month delay in delivering the citation constituted a lack of diligence as a matter of law. Id.
Similarly, Stoney failed to provide any explanation for her approximately two month delay in inquiring with the clerk’s office about procuring a citation, and her counsel ultimately learned that the failure to issue the citation was attributable to the lack of payment of requisite fees.[4] We conclude that the evidence presented to the trial court established, as a matter of law, that Stoney failed to use diligence in procuring the citation and effecting service on Gurmatakis. Accordingly, we hold that the trial court did not err in granting summary judgment in favor of Gurmatakis.
We overrule Stoney’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Bland, and Wilson.[5]
[1] Stoney actually identifies four issues in her briefing, but all issues concern whether the trial court erred in granting summary judgment on limitations grounds.
[2] Stoney presented evidence that she had previously filed her original petition with the “Harris County Clerk” on November 21, 2008 and she had received a letter from the clerk’s office on December 3, 2008 informing her that it would not process her petition. This evidence is not necessary to our analysis because the evidence shows, and the parties agree, that Stoney timely filed her petition with the Harris County District Clerk by December 9, 2008.
[3] In her affidavit, Mayes does not specifically identify the actual date on which she called the clerk after learning from her firm’s process server that it had not received citation. Nevertheless, resolving any doubt in Stoney’s favor, we construe Mayes’s affidavit to provide some evidence that she called the clerk either on February 13, 2009 or shortly thereafter.
[4] We recognize that other courts have held that “[t]wo weeks is not an unreasonable amount of time to allow a clerk to perform his duties” in issuing a requested citation. See Boyattia v. Hinojosa, 18 S.W.3d 729, 734 (Tex. App.—Dallas 2000, pet. denied); see also Harrell v. Alvarez, 46 S.W.3d 483, 486 (Tex. App.—El Paso 2001, no pet.) (stating that “clerk must be given a reasonable time to fulfill her obligations” and that “a delay of three weeks in issuing citation, which included [the Thanksgiving] holiday, did not entail any inaction by the clerk obligating plaintiffs’ recognition and correction”). We need not consider the specific number of days that a clerk should be given to issue a properly requested citation before a diligent party should inquire about the status of procuring the citation. Rather, we simply hold that, on these facts, Stoney’s unexplained delay in waiting to inquire about the status of the citation shows lack of diligence as a matter of law.
[5] The Honorable Randy Wilson, State District Judge of the 157th Judicial District, Harris County, Texas, sitting by assignment.