NO. 12-02-00096-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
ELIZABETH JARRELL,§ APPEAL FROM THE
APPELLANT
V.§ COUNTY COURT AT LAW OF
BROOKSHIRE GROCERY COMPANY,
APPELLEE§ KAUFMAN COUNTY, TEXAS
Elizabeth Jarrell appeals from a summary judgment based on limitations entered in favor of Brookshire Grocery Company ("Brookshire") in her personal injury suit. In two issues, Appellant contends the trial court erred in granting Brookshire's motion for summary judgment because she provided an excuse for the delay in serving Brookshire and because the issue of diligence in obtaining issuance of citations and service on a defendant is a question of fact. We affirm.
On May 28, 1997, Appellant tripped on a rug at a Brookshire's store. She filed her original petition on May 18, 1999 alleging she suffered personal injury due to Brookshire's negligence. Brookshire filed a motion for summary judgment alleging that, although citation was originally requested on May 18, 1999, it was not served with citation until July 9, 2001, nearly two years and two months after the statute of limitations expired. It asserted that the delay constituted a lack of due diligence as a matter of law and therefore Appellant's suit is barred by limitations.
Appellant filed a response to the motion alleging that her summary judgment evidence, the affidavits of Ra-Lyn Baker and Robert Huckabee, provides an explanation for the delay in service of process precluding summary judgment. She asserted that the presentation of an explanation for the delay created a fact issue on the question of diligence.
Ms. Baker is a paralegal with the Law Firm of Patrick Short. At the time Appellant's petition was filed, the lead counsel on her case was Robert Huckabee, an associate at the firm. Approximately four months later, in September 1999, Mr. Huckabee left the firm. Some of his clients requested that he continue to handle their cases. Ms. Baker sent those files to Mr. Huckabee. She stated that, based on Appellant's request for Mr. Huckabee to remain as her attorney, she sent Appellant's file to Mr. Huckabee. On May 10, 2001, the Law Firm of Patrick Short received notice that Appellant's case had been placed on the dismissal docket. Ms. Baker forwarded that notice to Mr. Huckabee who then called her and told her he did not have Appellant's file. Mr. Huckabee appeared at the dismissal hearing in late May 2001 and explained the situation to the trial court. The case was retained on the docket. Citation was requested by the Law Firm of Patrick Short on July 3, 2001 and service was made upon Brookshire on July 9, 2001.
In his affidavit, Mr. Huckabee stated that he had no record or knowledge of receiving Appellant's file and did not know it was to have been sent to him. He had no knowledge of any action on her case until he received the forwarded notice that the case had been placed on the dismissal docket. Neither Mr. Huckabee nor Ms. Baker was able to locate Appellant's file. Accordingly, Mr. Huckabee asserted, as the firm thought Mr. Huckabee was handling the case, and Mr. Huckabee thought the firm was handling the case, the lack of service was due to mistake and not a lack of diligence.
In her first issue, Appellant asserts the trial court erred in granting summary judgment for Brookshire because she provided an excuse for the delay in effecting process. She argues that the affidavits of Ms. Baker and Mr. Huckabee provide a reasonable explanation for the delay in serving Brookshire and, therefore, should preclude summary judgment. In her second issue, she contends the issue of diligence is a question of fact.
To obtain a summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). In 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. Property Management 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 resolved in its favor. Id.
When the plaintiff files her petition within the limitations period, but does not serve the defendant until after the statutory period has run, her suit is time barred unless it is shown that she exercised diligence in effecting service. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990). The existence of due diligence is usually a fact question determined by a two-prong test: 1) whether the plaintiff acted as an ordinarily prudent person would have acted under the same or similar circumstances; and 2) whether the plaintiff acted diligently up until the time the defendant was served. Rodriguez v. Tinsman & Houser, Inc., 13 S.W.3d 47, 49 (Tex. App.- San Antonio 1999, pet. denied). A lack of diligence will be found as a matter of law, however, if no valid excuse for lack of service is offered, or if the lapse of time and the plaintiff's acts, or inaction conclusively negate diligence. Perry v. Kroger Stores, Store No. 119, 741 S.W.2d 533, 534 (Tex. App.- Dallas 1987, no writ) (on reh'g). Accordingly, to obtain summary judgment on the basis that an action was not served within the applicable limitations period, the movant must show that, as a matter of law, diligence was not used to effectuate service. Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975). We consider the time taken to procure citation and/or service and the type of effort or lack of effort the plaintiff expended in procuring service. Webster v. Thomas, 5 S.W.3d 287, 290 (Tex. App.- Houston [14th Dist.] 1999, no pet.). Lack of diligence can be found even in the face of an offered explanation, if that explanation affirmatively established lack of reasonable diligence. Rodriguez, 13 S.W.3d at 49.
Appellant contends that her failure to serve Brookshire before limitations ran was the result of a mistake and not the lack of diligence. We conclude it was both a mistake and a lack of diligence. Appellant's explanation of the failure to timely serve Brookshire, that it was the result of mistake, simply does not involve diligence to seek service of process. See id. at 50. Rather, Appellant's proffered explanation explained the absence of diligence between September 1999 and May 2001 that was due to miscommunications between the law firm and Mr. Huckabee. Thus, it is not a valid explanation. An invalid explanation of delay constitutes lack of diligence as a matter of law. Id. Because Appellant's proffered excuse does not involve diligence in attempting to effectuate service, and her explanation is not valid, it fails to raise a fact issue on diligence.
Appellant's duty to use diligence remained constant from May 18, 1999 until Brookshire was served. Although citation was requested on May 18, 1999, nothing in the record shows any attempt to follow up on that request or any attempt to seek service of process again until well after expiration of the limitations period. Appellant provided no explanation whatsoever regarding the failure to attempt service from May 19, 1999 to September 1999 and from May 2001 to July 3, 2001, the date citation was finally requested. Therefore, it cannot be said that Appellant exercised continual diligence in attempting to serve Brookshire from the time suit was filed until service was accomplished. Id. at 49. The summary judgment proof establishes due diligence was lacking as a matter of law on the unexplained time periods. See Gant, 786 S.W.2d at 260.
Of the two year, two month delay, Appellant provided an invalid explanation for one year and nine months and provided no explanation whatsoever for a three month period and a two month period. We conclude the trial court correctly determined as a matter of law that Appellant did not exercise diligence in effecting service and therefore her suit is time barred. We overrule Appellant's first and second issues.
We affirm the trial court's judgment.
LOUIS B. GOHMERT, JR.
Chief Justice
Opinion delivered August 21, 2002.
Panel consisted of Gohmert, Jr., C.J., Worthen, J., and Griffith, J.
DO NOT PUBLISH
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
August 21, in the Year of our Lord 2002
NO. 12-02-00096-CV
ELIZABETH JARRELL,
Appellant
V.
BROOKSHIRE GROCERY COMPANY,
Appellee
Appeal from the County Court at Law
of Kaufman County, Texas. (Tr.Ct.No. 55131CC)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this Court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below Be In All Things Affirmed and that all costs of this appeal are hereby adjudged against the appellant, Elizabeth Jarrell, and that this decision be certified to the court below for observance.
Louis B. Gohmert, Jr., Chief Justice.
Panel consisted of Gohmert, Jr., C.J., Worthen, J., and Griffith, J.
THE STATE OF TEXAS
M A N D A T E
TO THE COUNTY COURT AT LAW OF KAUFMAN COUNTY, GREETINGS:
Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 21st day of August, in the Year of our Lord 2002, the cause upon appeal to revise or reverse your judgment between
ELIZABETH JARRELL, Appellant
NO. 12-02-00096-CV and Tr. Ct. Case Number 55131CC
Opinion by Chief Justice Louis B. Gohmert, Jr.
BROOKSHIRE GROCERY COMPANY, Appellee
was determined; and therein our said Court made its order in these words:
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being inspected, it is the opinion of this Court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below Be In All Things Affirmed and that all costs of this appeal are hereby adjudged against the appellant, Elizabeth Jarrell, and that this decision be certified to the court below for observance.
WHEREAS, YOU ARE HEREBY COMMANDED to observe the foregoing order of said Court of Appeals for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly recognized, obeyed, and executed.
WITNESS, THE HONORABLE LOUIS B. GOHMERT, JR., Chief Justice of said Court of Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of Tyler, this the ______ day of __________________, in the Year of our Lord 200_.
CATHY S. LUSK, CLERK
By:_______________________________
Deputy Clerk