ACCEPTED
12-15-00029-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
7/30/2015 2:18:43 PM
CATHY LUSK
CLERK
Cause No. 12-15-00029-CV
IN THE COURT OF APPEALS,
FILED IN
TWELFTH JUDICAL DISTRICT OF TEXAS, TYLER 12thTEXAS
COURT OF APPEALS
TYLER, TEXAS
_________________________________________________
7/30/2015 2:18:43 PM
CATHY S. LUSK
TONYA ALLEN, D.D.S., P.A., Clerk
Appellant,
v.
SMITH COUNTY APPRAISAL DISTRICT,
Appellee.
_________________________________________________
Appealed from the 114th Judicial District Court of Smith County, Texas
Trial Court No. 14-1121-B
The Honorable Christi Kennedy, Presiding
BRIEF OF APPELLEE
Vernique R. Hutchinson Sandra M. Griffin
Texas Bar No. 24066905 Texas Bar No. 00721980
PERDUE, BRANDON, FIELDER, Christopher S. Jackson
COLLINS & MOTT, L.L.P. Texas Bar No. 00796816
1235 North Loop West, Suite 600 PERDUE, BRANDON, FIELDER,
Houston, TX 77009 COLLINS & MOTT, L.L.P
Telephone: 713.862.1860 3301 Northland Dr., Suite 505
Facsimile: 713.862.1429 Austin, TX 78731
Email: vhutchinson@pbfcm.com Telephone: 512.302.0190
Facsimile: 512.323.6963
Email: sgriffin@pbfcm.com
Email: cjackson@pbfcm.com
COUNSEL FOR APPELLEE,
SMITH COUNTY APPRAISAL DISTRICT
ORAL ARGUMENT WAIVED
IDENTITY OF PARTIES & COUNSEL
Pursuant to Texas Rules of Appellate Procedure 38.1(a) and 38.2(a)(1)(A),
the appellee adopts the identities of parties and counsel as listed by the appellant,
Tonya Allen, D.D.S., P.A., and adds the following:
Smith County Christopher S. Jackson
Appraisal District Texas Bar No. 00796816
Defendant / Appellee PERDUE, BRANDON FIELDER, COLLINS &
MOTT L.L.P.
3301 Northland Dr., Suite 505
Austin, TX 78731
Telephone: 512.302.0190
Facsimile: 512.323.6963
Email: cjackson@pbfcm.com
Vernique R. Hutchinson
Texas Bar No. 24066905
PERDUE, BRANDON, FIELDER,
COLLINS & MOTT, L.L.P.
1235 North Loop West, Suite 600
Houston, TX 77009
Telephone: 713.862.1860
Facsimile: 713.862.1429
Email: vhutchinson@pbfcm.com
Appellate Counsel for Smith County
Appraisal District
TABLE OF CONTENTS
Identity of Parties, Counsel & Trial Court ............................................................ i
Table of Contents .................................................................................................... ii
Index of Authorities ............................................................................................... iv
Statement of the Case ............................................................................................ ix
Statement Regarding Oral Argument ................................................................. xi
Party and Record References ............................................................................. xii
Issue Presented ..................................................................................................... xiii
Standard of Review .............................................................................................. xiii
I. Introduction .................................................................................................... 1
II. Statement of Facts .......................................................................................... 2
III. Standard of Review ....................................................................................... 5
IV. Burden ........................................................................................................... 6
V. Summary of the Argument............................................................................ 8
VI. Argument & Authorities ............................................................................. 9
A. Because the District has plead limitations and shown Allen …..9
effected service after the limitations period had expired, Allen
has the burden to show it acted diligently.
ii
B. Allen’s explanation and the facts in this matter when ….11
applied to Texas case law prove a lack of diligence in
effecting service as a matter of law.
C. Allen’s actions were not diligent under the plain meaning ….17
of the term.
VII. Conclusion & Prayer ............................................................................... 18
Certificate of Compliance .................................................................................... 21
Certificate of Service............................................................................................. 22
iii
INDEX OF AUTHORITIES
TEXAS STATUTES
Tex. Tax Code Ann. § 25.25(d) (West 2013) .......................................................... 2
Tex. Tax Code Ann. § 42.21(a) (West 2013) .......................................... 2, 3, 10, 14
Tex. Tax Code Ann. § 42.21(d) (West 2013) ........................................................ 15
TEXAS RULES & REGULATIONS
Tex. R. App. P. 38.1(e) ........................................................................................... xi
Tex. R. App. P. 38.2(a)(1)(B) ............................................................................... xiii
Tex. R. App. P. 39.1 ................................................................................................ xi
Tex. R. App. P. 39.1(b) ........................................................................................... xi
Tex. R. App. P. 39.1(c) ........................................................................................... xi
Tex. R. App. P. 39.1(d) ........................................................................................... xi
Tex. R. App. P. 39.7 ................................................................................................ xi
Tex. R. Civ. P. 103 ................................................................................................. 15
Tex. R. Civ. P. 106 ................................................................................................. 15
Tex. R. Civ. P. 166a(c) ............................................................................................ 5
iv
TEXAS SUPREME COURT CASES
Amedisys, Inc. v. Kingwood Home Health Care, LLC,
437 S.W.3d 507 (Tex. 2014) .................................................................................... 5
City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005) .................................................................................... 6
Cockrell v. Estevez,
737 S.W.2d 138 (Tex. 2002) .................................................................................. 12
Delgado v. Burns,
656 S.W.2d 428 (Tex. 1983) .................................................................................... 6
Gant v. DeLeon,
786 S.W.2d 259 (Tex. 1990) .................................................................... 7, 9, 10, 19
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding.,
289 S.W.3d 844 (Tex. 2009) ................................................................................. xiii
Murray v. San Jacinto Agency, Inc.,
800 S.W.2d 826 (Tex. 1990) .................................................................................... 9
Nixon v. Mr. Prop. Mgmt. Co.,
690 S.W.2d 546 (Tex. 1985) .................................................................................... 5
Primate Constr. Inc. v. Silver,
884 S.W.2d 151 (Tex. 1994) .................................................................................. 12
Proulx v. Wells,
235 S.W.3d 213 (Tex. 2007) ................................................................ 6, 7, 9, 10, 19
Rigo Mfg. Co. v. Thomas,
458 S.W.2d 180 (Tex. 1970) .................................................................................... 9
Roark v. Stallworth Oil & Gas, Inc.,
813 S.W.2d 492 (Tex. 1991) .................................................................................... 6
v
Valence Operating Co. v. Dorsett,
164 S.W.3d 656 (Tex. 2005) ............................................................................. xiii, 5
Zale Corp. v. Rosenbaum,
520 S.W.2d 889 (Tex. 1975) .................................................................................... 9
12TH DISTRICT COURT OF APPEAL CASES
Pitula v. Valera,
No. 12-01-00302-CV, 2002 WL 1065971
(Tex. App.—Tyler May 22, 2002, no pet.)
(not designated for publication) ........................................................................... 7, 9
Valerus Compression Serv. v. Gregg Cnty. Appraisal Dist.,
457 S.W.3d 520 (Tex. App.—Tyler 2015, no pet) .................................................. 5
OTHER TEXAS COURTS OF APPEAL CASES
Bilinsco Inc. v. Harris Cnty. Appraisal Dist.,
321 S.W.3d 648 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) .................. 7, 9
Boyattia v. Hinojosa,
18 S.W.3d 729 (Tex. App.—Dallas 2000, pet. denied) ......................................... 12
Broom v. MacMaster,
992 S.W.2d 659 (Tex. App.—Dallas 1999, no pet.) .......................................... 9, 10
Brown v. Shores,
77 S.W.3d 884 (Tex. App.—Houston [14th Dist.] 2002, no pet.) ............................ 7
Butler v. Ross,
836 S.W.2d 833 (Tex. App.—Houston [1st Dist.] 1992, no writ) .......................... 13
vi
Hansler v. Mainka,
807 S.W.2d 3 (Tex. App.—Corpus Christi 1991, no writ) .............................. 13, 16
Hodge v. Smith,
856 S.W.2d 212 (Tex. App.—Houston [1st Dist.] 1993, writ denied) ..................... 7
Holt v. D’Hanis State Bank,
993 S.W.3d 237 (Tex. App.—San Antonio 1999, no pet.) ........................ 13, 14, 19
In re Buggs,
166 S.W.3d 506 (Tex. App.—Texarkana 2005 orig. proceeding) ......................... 12
Li v. Univ. of Tex. Health Sci. Ctr.,
984 S.W.2d 647 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) ................. 13
Martinez v. Becerra,
797 S.W.2d 283 (Tex. App.—Corpus Christi 1990, no writ) .................................. 9
Mauricio v. Castro,
287 S.W.3d 476 (Tex. App.—Dallas 2009, no pet.) .............................................. 13
Perkins v. Groff,
936 S.W.2d 661 (Tex. App.—Dallas 1996, writ denied) ...................................... 13
Perry v. Kroger Stores, Store No. 119,
741 S.W.2d 533 (Tex. App.—Dallas 1987, no writ) ............................................... 7
Reynolds v. Alcorn,
601 S.W.2d 785 (Tex. App.—Amarillo 1980, no writ) ........................................... 8
Rodriguez v. Tinsman & Houser, Inc.,
13 S.W.3d 47 (Tex. App.—San Antonio 1999, pet. denied) ............................. 7, 13
Slagle v. Prickett,
345 S.W.3d 693 (Tex. App.—El Paso 2011, no pet.) .......................... 13, 14, 16, 19
vii
Tarrant Cnty. v. Vandigriff,
71 S.W.3d 921 (Tex. App.—Fort Worth 2002, pet. denied) ................................... 7
Tate v. Beal,
119 S.W.3d 378 (Tex. App.—Fort Worth 2003, pet. denied) ................................. 7
Valdez v. Charles Orsinger Buick Co.,
715 S.W.2d 126 (Tex. App.—Texarkana 1986, no writ) ........................................ 7
Webster v. Thomas,
5 S.W. 3d 287 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ..... 12, 13, 14, 15, 16
Zacharie v. U.S. Nat’l Res., Inc.,
94 S.W.3d 748 (Tex. App.—San Antonio 2002, no pet.) .................................. 7, 19
OTHER
Diligence Definition, Merriam-Webster.com,
http://www.merriam-webster.com/dictionary/diligence
(last visited July 28, 2015) ..................................................................................... 17
viii
STATEMENT OF THE CASE
Pursuant to Texas Rules of Appellate Procedure 38.1(d) and
38.2(a)(1)(B), the District states as follows:
Nature of This is an ad valorem tax case. Allen filed suit against
The Case: the District within limitations but served the District 3
months after the limitations period expired. The issue is
whether Allen’s service of citation was diligent as a
matter of law for it to relate back and her suit to be
timely.
Trial Court: Cause No. 14-1121-B
114th Judicial District, Smith County, Texas
The Honorable Christi Kennedy, presiding
Course of On November 26, 2013, the property owner filed a
Proceedings: motion to correct the appraised value for the 2013 tax
year. CR 47. A hearing was held on January 23, 2014.
CR 49. The Smith County Appraisal Review Board
issued an adverse determination on March 12, 2014. CR
49, 51. Allen received the order on March 14, 2014. CR
51. On April 28, 2014, Allen timely filed a petition for a
trial de novo in the 114th District Court, Smith County,
Texas, the Honorable Christi Kennedy, presiding. CR 49,
1-3. The limitations period expired on May 13, 2014.
Allen requested and paid for service on the District on
August 6, 2014, approximately 3 months after the
limitations period had run. CR 60, 68, 93. The District
was served on August 11, 2014. CR 18, 20.
ix
The District answered on August 13, 2014. CR 6-16, 93.
The District on November 20, 2014 filed a first amended
answer asserting the affirmative defense of limitations.
CR 32-35. On December 30, 3014, Allen filed a
response. CR 54-60. A hearing on the District’s motion
for summary judgment was held on January 8, 2015. CR
52.
Trial On January 14, 2015, the 114th District Court, the
Court’s Honorable Christi Kennedy, presiding, granted the
Disposition: District’s motion for summary judgment where it had
asserted limitations. CR 75.
x
STATEMENT REGARDING ORAL ARGUMENT
This case presents an important, but not unusually complex, question.
This case would extend the jurisprudence on the issue of diligent service in
Texas as applied to the arena of ad valorem taxation and in the jurisdiction
of the Twelfth Court.
The District contends that this case is limited to a pure question of law
concerning limitations when the appellant requested and effected service
three months after the limitations period expired. The issue presented
requires review of relatively simple statutes and cases from the Texas
Supreme Court, this Honorable Court and its sister courts of appeal. As a
result, Tex. R. App. P. 39.1(b), (c) or (d) may be applicable to this case.
The appellant did not request, and therefore has waived, oral
argument. Tex. R. App. P. 38.1(e), 39.1. The District believes that its
briefing herein is sufficient to establish the appellant’s lack of diligence in
effecting service as a matter of law. Therefore, in accordance with Tex. R.
App. P. 39.7, this is notice that the District also waives oral argument, unless
the Court would find argument helpful.
xi
PARTY & RECORD REFERENCES
In this brief, the appellant, Tonya Allen, D.D.S., P.A., will be referred to as
“appellant” or “Allen.”
The appellee, Smith County Appraisal District, will be referred to as
“appellee” or “the District.”
In this brief, the following record citation forms will be used:
•! Clerk’s Record will be cited as “CR [page].”
xii
ISSUE PRESENTED
Pursuant to Tex. R. App. P. 38.2(a)(1)(B), the appellee is dissatisfied with
the issue presented by the appellant.
The issue for this Court to resolve is: When the appellant filed suit within the
period of limitation but did not request or pay for the issuance and service of
citation until three-months after limitations expired, as a matter of law, did the
appellant continuously exercise diligence in procuring the issuance and service of
citation on the District, so that service relates back to the date her lawsuit was filed
and would be within the limitations period?
STANDARD OF REVIEW
This Court reviews a trial court’s ruling on a motion for summary judgment
de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005);
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009).
xiii
NO. 12-15-00029-CV
IN THE TWELFTH COURT OF APPEALS
TYLER, TEXAS
TONYA ALLEN, D.D.S., P.A.,
Appellant,
v.
SMITH COUNTY APPRAISAL DISTRICT,
Appellee.
APPELLEE’S BRIEF
TO THE HONORABALE JUSTICES OF THE TWELFTH COURT OF
APPEALS:
NOW COMES the appellee, Smith County Appraisal District (hereinafter the
“District”), and submits its Brief as follows:
I. INTRODUCTION
The appellant, Tonya Allen (“Allen”), appeals a summary judgment in favor
of the District in a dispute over an ad valorem tax matter. Following the receipt of
an order determining her administrative protest to the Smith County Appraisal
Review Board (hereinafter “ARB”), Allen had sixty (60) days to file her lawsuit.
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 1
!
Tex. Tax Code Ann. § 42.21(a) (West 2013). Although Allen filed her lawsuit during
the limitations period, she failed to serve the District until 105 days after her petition
was filed in district court, which was three-months after the limitations period
expired. The issue presented in this appeal is, as a matter of law, did Allen
continuously exercise diligence in procuring the issuance and service of citation on
the District, so that service relates back to the date her lawsuit was filed and would
be within the limitations period? The Court should affirm the trial court’s judgment
that the appellant’s actions in effecting service were not diligent and therefore her
suit was not filed timely as a matter of law.
II. STATEMENT OF FACTS
Allen’s property is located in Smith County, Texas. It is described as ABST
A1118 J Sanders Tract 2X.2 (PT of 4.07 AC/SEE TR 2X) and is known to the
District as Account Number 100000111800002242. CR 44 at ¶ 3, CR 47, 49.
The Tax Code allows property owners to file a protest if they disagree with
their appraised value. For the 2013 tax year, Allen failed to timely file a protest for
relief under Chapter 41 of the Texas Property Tax Code on the subject property. On
November 26, 2013, Allen filed a motion to correct the appraised value, a later and
stricter form of relief, pursuant to Tax Code § 25.25(d), to contest the value placed
on her property. CR 47. The ARB heard Allen’s motion to correct on January 23,
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 2
!
2014. CR 49. The ARB ruled against Allen by deciding that the appraisal records
were correct and no changes were to be made. CR 49. The ARB issued its final order
on March 12, 2014. CR 49, 51. Allen received the ARB’s order on March 14, 2014.
CR 51. The limitations deadline for Allen to file her suit was Tuesday, May 13, 2014,
which is sixty (60) days after receipt of the ARB’s order. Tex. Tax Code Ann. §
42.21(a) (West 2013).
Allen appealed the ARB’s order to the trial court by electronically filing an
original petition on April 28, 2014. CR1-3. Several months went by with no action
in the case. The record shows that Allen did not request or pay for citation and its
service until August 6, 2014. CR 4-5, 68, 93.
After the request and payment were made, the Smith County District Clerk
issued citation. CR 93, 4. The citation was finally served 105 days after Allen filed
her original petition. The petition was served on the District at its office, through a
manager, Carol Dixon, on August 11, 2014. CR 18, 20. The District filed its original
answer, asserting a general denial, a plea to the jurisdiction, and a motion to dismiss
on August 13, 2014. CR 6-16, 93.
The District filed its first amended original answer that included a general
denial, the affirmative defense of limitations, and special exceptions on November
20, 2014. CR 32-35. The District then filed a motion for summary judgment on
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 3
!
November 24, 2014, based on the appellant’s failure to bring suit within the
limitations period contending that Allen lacked diligence in effecting service after
the limitations period had expired. CR 36-51.
On December 30, 2014, Allen filed her response to the District’s motion for
summary judgment. CR 54-60. The response included an affidavit from Allen’s
counsel, Mr. Michael W. Eaton. CR 59-60. In his affidavit, appellant’s counsel
provided no real explanation of his efforts to effect service for the 60-90 days after
the petition had been filed. Mr. Eaton stated in his affidavit that he “performed a
routine diligence review of the file in July 2014.” CR 60. Mr. Eaton found no answer
from the District in his file upon his review. CR 60. Mr. Eaton also essentially states
he has a good working relationship with opposing counsel who represent appraisal
districts, yet he did not contact counsel for the District to determine why there was
no answer. CR 60. Mr. Eaton apparently did not review his file closely enough in
July to discover that the fees for issuing and serving citation had not been paid. Mr.
Eaton also stated in his affidavit, at some point after his review of the file in July,
his assistant finally contacted the court clerk and was informed service had not been
completed. CR 60.
What the appellant’s counsel does not state clearly or at all in his affidavit is
that his letter, sent on August 6, 2014, constituted his first request and payment
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 4
!
for the citation, service of citation, and an electronic filing fee. CR 60, 68, 93. That
is why service had not been completed, he had never requested service until August
for a suit that was filed in April.
On January 8, 2015, a hearing was held on the District’s motion for summary
judgment. CR 52. On January 14, 2015, Judge Christi Kennedy issued an order on
the District’s objections to Mr. Eaton’s affidavit and also granted the District’s
motion for summary judgment. CR 74-75. This appeal ensued. CR 76-78.
III. STANDARD OF REVIEW
The Court reviews a trial court’s ruling on a motion for summary judgment
de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005);
Valerus Compression Serv. v. Gregg Cnty. Appraisal Dist.,457 S.W.3d 520, 524
(Tex. App.—Tyler 2015, no pet). The party moving for traditional summary
judgment bears the burden of showing no genuine issue of material fact exists and it
is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Amedisys, Inc. v.
Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014); Nixon v. Mr.
Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). Once the movant has
established a right to summary judgment, the non-movant has the burden to respond
to the motion and present to the trial court any issues that would prelude summary
judgment. Amedisys, 437 S.W.3d at 511; Valerus Compression Serv.,457 S.W.3d at
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 5
!
524. The Court is to review the evidence in the light most favorable to the party
against whom the summary judgment was rendered, crediting evidence favorable to
that party if reasonable jurors could, and disregarding contrary evidence unless
reasonable jurors could not. Id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 827
(Tex. 2005)); Nixon, 690 S.W.2d at 549.
IV. BURDEN
Limitations is an affirmative defense and may serve as the basis for a trial
court’s summary judgment. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492,
494 (Tex. 1991). A defendant who asserts the running of limitations as a bar to a
cause of action bears the burden of showing that limitations barred the suit. Delgado
v. Burns, 656 S.W.2d 428, 429 (Tex. 1983).
In a case where a defendant files for summary judgment on a diligent service
question, and the defendant affirmatively pleads a limitations defense and shows
service was effectuated after the limitations period expired, a plaintiff then bears the
burden to “explain every lapse in effort or period of delay” in service. See Proulx
v. Wells, 235 S.W.3d 213, 216 (Tex. 2007)(emphasis added). But, if the plaintiff’s
explanation for the delay raises a material fact issue concerning the diligence of the
service efforts undertaken, “the burden shifts back to the defendant to conclusively
show why, as a matter of law, the explanation is insufficient….” Id.
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 6
!
However, a lack of due diligence can be found as a matter of law if the plaintiff
offers no valid excuse for the lack of service, or if the lapse of time and the plaintiff’s
acts, or inaction, are unexplained or patently unreasonable. See Proulx, 235 S.W.3d
at 216; Zacharie v. U.S. Nat’l Res., Inc., 94 S.W.3d 748, 754 (Tex. App.—San
Antonio 2002, no pet.)(explanation affirmatively established lack of diligence);
Pitula v. Valera, No. 12-01-00302-CV, 2002 WL 1065971, at *2 (Tex. App.—Tyler
May 22, 2002, no pet.) (not designated for publication). See also Gant v. DeLeon,
786 S.W.2d 259, 260 (Tex. 1990); Bilinsco Inc. v. Harris Cnty. Appraisal Dist., 321
S.W.3d 648, 652 (Tex. App.—Houston [1st Dist.] 1998, pet. denied); Brown v.
Shores, 77 S.W.3d 884, 887(Tex. App.—Houston [14th Dist.] 2002, no pet.); Tarrant
Cnty. v. Vandigriff, 71 S.W.3d 921, 925–26 (Tex. App.—Fort Worth 2002, pet.
denied); Rodriguez v. Tinsman & Houser, Inc., 13 S.W.3d 47, 49 (Tex. App.—San
Antonio 1999, pet. denied); Perry v. Kroger Stores, Store No. 119, 741 S.W.2d 533,
534 (Tex. App.—Dallas 1987, no writ); Valdez v. Charles Orsinger Buick Co., 715
S.W.2d 126, 127 (Tex. App.—Texarkana 1986, no writ).
In “assessing diligence, the relevant inquiry is whether the plaintiff acted as
an ordinary prudent person would have acted under the same or similar
circumstances and was diligent up until the time the defendant was served.” See
Proulx, 235 S.W.3d at 216; see also Pitula, 2002 WL 1065971, at *2; Tate v. Beal,
119 S.W.3d 378, 381 (Tex. App.—Fort Worth 2003, pet. denied); Hodge v. Smith,
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 7
!
856 S.W.2d 212, 215 (Tex. App.—Houston [1st Dist.] 1993, writ denied); Reynolds
v. Alcorn, 601 S.W.2d 785, 788 (Tex. App.—Amarillo 1980, no writ).
V. SUMMARY OF THE ARGUMENT
To timely bring suit one must file an action timely and serve the defendant. In
this case, Allen filed suit within limitations but served the District after limitations
expired. In such instances, the date of service may relate back to the filing and be
timely if the plaintiff continuously exercises diligence in effecting service. The
District has presented the proper predicates to place the burden on Allen to prove
she continuously exercised diligence in effecting service. Allen’s thin explanations
to show diligence avoid the fact that she did not request or pay for citation and
service until approximately three-months after the limitations period for filing her
suit had expired. CR 4-5, 60, 68, 93. As a matter of law, Allen did not continuously
exercise diligence in procuring the issuance and service of citation on the District,
so that service relates back to the date her lawsuit was filed. Her lawsuit against the
District therefore does not relate back to the time of filing and is and is outside the
limitations period, and should be barred. The trial court’s summary judgment in
favor of the District should be affirmed.
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 8
!
VI. ARGUMENT & AUTHORITIES
A. Because the District has plead limitations and shown Allen effected
service after the limitations period had expired, Allen has the burden to
show it acted diligently.
In one point of error, Allen contends that the trial court erred in granting
summary judgment for the District because she timely brought suit by filing within
the 60-day applicable statutory limitations period and claims to have exercised
diligence by effecting service 105 days later.
The established rule holds merely filing a lawsuit is not bringing suit within the
limitations period. To bring suit, a plaintiff must both file her action and have the
defendant served with process. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826,
830 (Tex. 1990)(emphasis added); Broom v. MacMaster, 992 S.W.2d 659, 664 (Tex.
App.—Dallas 1999, no pet.); Pitula, 2002 WL 1065971, at *2.
When a plaintiff files suit within the limitations period, but fails to serve the
defendant until after the statutory period has expired, the date of service may relate
back to the date the plaintiff filed suit only if the plaintiff exercises diligence in
effecting service. See Proulx, 235 S.W.3d at 215 (emphasis added); Gant, 786
S.W.2d at 260; Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 890 (Tex. 1975); Rigo
Mfg. Co. v. Thomas, 458 S.W.2d 180, 182 (Tex. 1970); Bilinsco Inc., 321 S.W.3d at
652; Martinez v. Becerra, 797 S.W.2d 283, 284 (Tex. App.—Corpus Christi 1990,
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 9
!
no writ). The duty to exercise diligence continues until service of process is
achieved. Broom, 992 S.W.2d at 664. If diligence is not exercised, the lawsuit is
deemed filed on the date of service. Gant, 786 S.W.2d at 260.
In this case, it is undisputed that service was effected after limitations had run.
Allen received the ARB’s order on March 14, 2014. CR 51. Allen’s deadline to file
suit was Tuesday, May 13, 2014, which was 60 days after receipt of the order. See
Tex. Tax Code Ann. § 42.21(a) (West 2013); CR 51. Allen appealed the ARB’s
order to the trial court by electronically filing an original petition on April 28, 2014.
CR1-3. Allen did not request and/or pay the fees for citation and its issuance until
August 6, 2014. CR 4-5, 60, 68, 93. The District was finally served on on August
11, 2014, which was approximately 3 months after limitations had expired. CR 51,
18, 20. The District answered and later filed for summary judgment, plead
limitations, and showed service was after the limitations period expired. CR 6-16,
32, 35, 36-51, 18, 20, 44. Therefore, the burden is on the appellant to explain every
lapse in effort or period of delay in service to avoid summary judgment. See
Proulx, 235 S.W.3d at 216 (emphasis added).
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 10
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B. Allen’s explanation and the facts in this matter when applied to Texas
case law prove a lack of diligence in effecting service as a matter of law.
Allen’s first explanation for the delay in service is “confusion in electronic
filing.” See Appellant’s Brief at pg. 11; CR 54-55, 59-60. Allen’s counsel represents
plaintiffs and should be very familiar with the rules and process in procuring the
issuance and service of citation. In his affidavit, Allen’s counsel establishes that he
has “handled literally hundreds of similar lawsuits over the thirty years [he has] been
practicing law” and that he is “extremely familiar with legal issues and rules
affecting property tax litigation.” CR 59. Mr. Eaton also appears to be more “hands
on” than most attorneys in the filing of lawsuits, as he also swore in his affidavit that
he personally observed his assistant electronically file the petition in this case and
that when the “petition was filed, the ‘efile’ box and the ‘service’ box were both
checked.” CR 60. The reason why service was not effected was because Allen did
not properly request citation and did not pay the fees for citation and service until
August 6, 2014. CR 4-5, 60, 68, 93. Mr. Eaton’s affidavit and explanation for the
delay are in conflict.
Allen’s next explanation appears to blame the district clerk for the lack of
citation being issued and service not being completed timely. CR 56, 59-60. Allen
notes that “[t]he filing was noted as ‘accepted’ by the Smith County District Clerk
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 11
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and no communications of any kind from the Smith County District Clerk informed
the filing attorney or his office that any other action was required to effectuate
service of process on the Defendant Central Appraisal District.” CR 56.
Texas law, however, is clear that it is the plaintiff, not the process server or
the district clerk, who is responsible for ensuring that service is properly
accomplished. Cockrell v. Estevez, 737 S.W.2d 138, 140 (Tex. 2002); Primate
Constr. Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994); In re Buggs, 166 S.W.3d
506, 508 (Tex. App.—Texarkana 2005 orig. proceeding). For example, the Fifth
Court has held that a plaintiff’s failure to follow up or act for three months when the
clerk’s inaction held up service constituted a lack of diligence as a matter of law. See
Boyattia v. Hinojosa, 18 S.W.3d 729, 734 (Tex. App.—Dallas 2000, pet. denied).
But, in this case, the reason why citation was not issued was not the fault of the clerk,
it was because Allen did not properly request citation and did not pay the fees for
citation and service until August 6, 2014—which was almost 3 months after the
limitations period had run. CR 4-5, 60, 68, 93.
In determining diligence, an important factor for the Court is the length of
delay in service. Webster v. Thomas, 5 S.W. 3d 287, 290 (Tex. App.—Houston [1st
Dist.] 1999, no pet.) Although the Texas Rules of Civil Procedure do not state a
specific period of time that shows per se diligence (or a lack thereof) in obtaining
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 12
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service, numerous cases have addressed this issue. Mauricio v. Castro, 287 S.W.3d
476, 480 (Tex. App.—Dallas 2009, no pet.)(holding suit barred by limitations when
plaintiff failed to explain 31 day delay between expiration of limitations and
service); Rodriguez, 13 S.W.3d at 51 (upholding summary judgment based on
expiration of limitations because plaintiff failed to explain 25 day delay between
expiration of limitations and service); Perkins v. Groff, 936 S.W.2d 661, 668 (Tex.
App.—Dallas 1996, writ denied)(upholding summary judgment based on expiration
of limitations because plaintiff failed to explain 18 day delay between expiration of
limitations and service); Slagle v. Prickett, 345 S.W.3d 693, 697 (Tex. App.—El
Paso 2011, no pet.)(3 month delay in requesting service after filing suit and
expiration of limitations not diligent as a matter of law); Holt v. D’Hanis State Bank,
993 S.W.3d 237, 241 (Tex. App.—San Antonio 1999, no pet.)(3 month delay in
procuring service after expiration of limitations not diligent as a matter of law);
Webster, 5 S.W. 3d at 291 (4 month delay negated diligence); Li v. Univ. of Tex.
Health Sci. Ctr., 984 S.W.2d 647, 652 (Tex. App.—Houston [14th Dist.] 1998, pet.
denied)(upholding summary judgment based on expiration of limitations because
plaintiff filed suit near deadline but failed to explain not seeking service for 2 and a
half months after expiration of limitations); Butler v. Ross, 836 S.W.2d 833, 835-
36 (Tex. App.—Houston [1st Dist.] 1992, no writ) (5 ½ month delay in service after
return of unserved original citation was not diligent); Hansler v. Mainka, 807 S.W.2d
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 13
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3, 5 (Tex. App.—Corpus Christi 1991, no writ) (upholding summary judgment based
on expiration of limitations because plaintiff filed suit month prior to deadline but
failed to diligently effect service for 5 months after expiration of limitations).
Of the cases listed above, this case is most similar to Holt and Slagle. The
length of delay in effecting service in this case is three-and-a-half months, like those
in Holt and in Slagle, where the courts in those cases determined the plaintiff was
not diligent in effecting service. Holt, 993 S.W.3d at 241; Slagle, 345 S.W.3d at 698-
99. It is important to note the limitations period in this case is 60-days, which is close
to the 120-day limitations period in Holt. Tex. Tax Code Ann. § 42.21(a) (West
2013); Holt, 993 S.W.3d at 239. Moreover, like Slagle, the plaintiff in this case did
not request service until approximately three months following the expiration of the
limitations period. The result in this case should mirror those in Holt and Slagle.
A plaintiff’s efforts (or lack thereof) are also a significant factor in a court’s
evaluation of diligence. Webster, 5 S.W. 3d at 290. This case is similar to Webster
v. Thomas, where the First Court looked at the efforts Webster used in obtaining
service of citation to determine his diligence. Webster, 5 S.W.3d at 290. During the
three-month period from the filing of suit to the issuance of citation, Webster’s
counsel called the (wrong) clerk’s office, several times, to inquire about the citation.
Id. Once he received the citation, Webster’s counsel sent it to the wrong precinct and
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 14
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there was a two-week period before counsel sent the citation to the correct precinct.
Webster, 5 S.W.3d at 290-91. The court found that while Webster’s counsel made
some efforts to procure service during the four months and ten days, those efforts
were “careless and not persistent.” Id. at 291. The court held that Webster failed to
use due diligence in serving the suit after it was filed. Id.
Unlike Webster, where counsel in that case made some efforts to procure
service during the delay, during the 105-day delay in this case, Allen did not attempt
service on the District one time. Service via a qualified person could not be easier
than on an appraisal district. See Tex. R. Civ. P. 103, 106. The Tax Code allows an
appraisal district to be served by service on any employee of the appraisal district
during normal business hours. Tex. Tax Code Ann. § 42.21(d) (West 2013). The
appellant could have served the chief appraiser or any employee of the District at an
address that it has been at for over 30 years. CR 44. The District is open nearly every
weekday, during normal business hours and has numerous staff available during
those hours to receive and assist process servers. CR 44. The appellant makes no
mention of any action taken during the 60-90 days after she filed her suit. Allen’s
counsel does claim to have made a diligent review of his file in July 2014 and noticed
the District had not filed an answer. CR 60. There is not explanation as to why his
review of his file was not made until two and a half months after the suit as filed.
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 15
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Further, in his careful review of the file, he apparently did not notice the service fee
had not been paid. The appellant also claims to have made a phone call to the clerk
in July, which is less effort that the counsel for Webster, but that call, like those in
Webster, effectively did nothing to further service. CR 60. Again, this case is most
similar to Slagle, where the plaintiff took no actions to obtain service for three
months following the expiration of the limitations period. Slagle, 345 S.W.3d at 698-
99. The lack of efforts to effectuate service by Allen show a lack of diligence as a
matter of law.
This case is also similar to Hansler v. Mainka, 807 S.W.2d 3 (Tex. App.—
Corpus Christi 1991, no writ) where Hansler filed suit within the period of
limitations but did not cause the issuance of citation for personal service until 5
months after the limitations period had expired. Id. at 5. Hansler’s attorney did not
recall requesting service or paying the service costs. Id. The court held that the
unexplained delay, as a matter of law, was not due diligence. Id.
Like Hansler, the reason the citation was not issued and served for so long is
because service was not requested properly and/or the fee was not paid when the
petition was filed. CR 4, 60, 68, 93. The explanation from appellant is void of any
evidence showing that Allen used diligence in requesting personal service at the time
she filed her suit. It is also void of any evidence showing that Allen paid the fees
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 16
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covering service costs when the petition was filed. The appellant’s explanation also
lacks detail as to why there was no action taken 60-90 days after filing her petition
or any urgency in following up with the reason the District had not filed an answer
when that was discovered by Allen’s counsel in July 2014, months after the
limitations period had expired. This unexplained delay in service, after the expiration
of the statute of limitations is, as a matter of law, not diligent in procuring issuance
and service of citation.
C. Allen’s actions were not diligent under the plain meaning of the term.
Moreover, appellant’s actions do not meet the plain meaning of the term
“diligence.” Webster’s defines “diligence” as “persevering application” or “careful
and continued hard work.” Diligence Definition, Merriam-Webster.com,
http://www.merriam-webster.com/dictionary/diligence (last visited July 28, 2015).
There is nothing persevering, careful, continued, or persistent in appellant’s actions,
as led by her counsel with 30-years of experience, as previously described in this
Brief.1
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1
!! It is ironic that
in an appeal of a case which centers on diligence, and a key
fact below is the appellant did not pay the service fee, the appellant’s actions have again
delayed this matter before this Honorable Court by not timely paying for the clerk’s record
so it could be filed in an ordinary and efficient manner. CR 4, 60, 68, 93 and CR 84-92.
!
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 17
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Allen’s actions and explanations offers no valid excuse for the lack of service.
Instead they show a lack of due diligence as a matter of law. It was not the fault of
e-filing or the district clerk. The reason why citation was not issued was because
Allen did not properly request citation and did not pay the fees for citation and
service until August 6, 2014—which was almost 3 months after the limitations
period had run. CR 4-5, 60, 68, 93.
VII. CONCLUSION & PRAYER
Although Allen has provided a “bare-bones” explanation for the delay in
service, those explanations consist of confusion over electronic filing or blaming the
clerk. Allen has provided no real explanation why it took 105 days to effect service.
There is no explanation of the delay in service for 60-90 days after the petition was
filed. There is no explanation for the delay and lack of urgency in requesting service
once the appellant was aware in July 2014 that the District had not filed an answer
or been served after the statute of limitations had run. The explanation and lack of
efforts by Allen are patently unreasonable. They are likely this way because the facts
are Allen did not properly request service and/or did not pay the fees for it until
August 6, 2014, which is approximately months after the limitations period had
expired. CR 4-5, 60, 68, 93.
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 18
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The appellant’s lack of an explanation for “every lapse in effort or period of
delay” in service and the facts in this case in not timely requesting and/or paying for
service “affirmatively establishes a lack of diligence” as a matter of law. Zacharie,
94 S.W.2d at 754; Proulx, 235 S.W.3d at 216; Holt, 993 S.W.3d at 241; Slagle, 345
S.W.3d at 698-99. Consequently, the limitations period was not tolled and Allen’s
suit should be barred. Gant, 786 S.W.2d at 260. For these reasons, the trial court’s
summary judgment in favor of the District should be affirmed.
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 19
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Respectfully submitted,
/s/ Christopher S. Jackson
Sandra Griffin
Texas Bar No. 00791280
Christopher S. Jackson
Texas Bar No. 00796816
PERDUE, BRANDON, FIELDER,
COLLINS & MOTT, L.L.P.
3301 Northland Drive, Suite 505
Austin, Texas 78731
Telephone: (512) 302-0190
Facsimile: (512) 323-6963
Email: sgriffin@pbfcm.com
Email: cjackson@pbfcm.com
Vernique R. Hutchinson
Texas Bar No. 24066905
PERDUE, BRANDON, FIELDER,
COLLINS & MOTT, L.L.P.
1235 North Loop West, Suite 600
Houston, TX 77009
Telephone: (713) 862-1860
Facsimile: (713) 862-1429
Email: vhutchinson@pbfcm.com
Attorneys for Appellee,
Smith County Appraisal District
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 20
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CERTIFICATE OF COMPLIANCE
1. As required by Texas Rule of Appellate Procedure 9.4(i)(3), I certify that this
brief complies with the type-volume limitation of Texas Rule of Appellate
Procedure 9.4(i)(2)(B) and 9.4(i)(1). The Appellee’s Brief contains 4721
words. The undersigned counsel certifies that he relied upon the word count
of the computer program “Word for Mac Office 2011” used to prepare the
document.
2. The undersigned counsel also certifies that this brief complies with the
typeface requirements of Texas Rule of Appellate Procedure 9.4(e). This brief
has been prepared in a proportionally spaced typeface using “Word for Mac
Office 2011” in fourteen (14) point “Times New Roman” style font for text
and thirteen (13) point “Times New Roman” style font for footnotes.
/s/ Christopher S. Jackson
Christopher S. Jackson
Attorney for Appellee,
Smith County Appraisal District
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 21
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CERTIFICATE OF SERVICE
In accordance with Texas Rule of Appellate Procedure 11(d), I certify that a
true and correct copy of the foregoing document was served via electronic filing and
via electronic mail to all parties on the 30th day of July 2015, as follows:
Counsel for Appellant
Mr. Michael W. Eaton
1701 W. Northwest Highway
Suite 100
Grapevine, TX 76051
Facsimile: (817) 431-1180
Email: mweaton@eatonlaw.com
/s/ Christopher S. Jackson
Christopher S. Jackson
Attorney for Appellee,
Smith County Appraisal District
Tonya Allen, D.D.S., P.A. v. Smith CAD
Appellee’s Brief Page 22
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Tonya Allen DDS, P.A. v. Smith County Appraisal District
Combined Opinion