NUMBER 13-17-00230-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOAN PARR, Appellant,
v.
HEB GROCERY COMPANY, LP, Appellee.
On appeal from the 277th District Court
of Williamson County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Hinojosa
Memorandum Opinion by Justice Contreras
Appellant Joan Parr appeals the trial court’s summary judgement in favor of
appellee HEB, Inc. a/k/a HEB Grocery Company, LP (HEB). Parr brought suit against
HEB for negligence. By one issue presenting two sub-issues, Parr argues that the trial
court erred when it granted summary judgment based on the applicable two-year statute
of limitations. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (West, Westlaw through
2017 1st C.S.). We affirm.
I. BACKGROUND1
On or about November 21, 2012, Parr slipped and fell at one of HEB’s stores and
suffered injuries as a result. On November 17, 2014—five days before the applicable
limitations period expired—Parr filed suit against HEB for negligence; however, Parr did
not serve HEB with notice of her lawsuit until October 6, 2016.
On October 21, 2016, HEB filed an answer denying all the allegations and
asserting, “by way of affirmative defense, . . . that this suit is barred by the doctrine of
laches . . . .” See TEX. R. CIV. P. 94. On November 3, 2016, HEB filed a motion for
summary judgment arguing that Parr’s suit was barred by the applicable statute of
limitations because it was not brought within two years and was “therefore barred by
Laches.” See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003.
Parr filed a response to HEB’s motion for summary judgment and attached an
affidavit from her trial counsel explaining why and how Parr had acted diligently in serving
HEB. On March 20, 2017, the trial court held a hearing on HEB’s motion and granted
summary judgment based on the statute of limitations. This appeal followed.
II. DISCUSSION
A. Standard of Review
We review the trial court’s granting of a motion for summary judgment de novo.
Provident Life & Accident Ins. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). “Under Texas
1This case is before this Court on transfer from the Third Court of Appeals in Austin pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through 2017 1st C.S.).
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Rule of Civil Procedure 166a(c), the party moving for summary judgment bears the
burden to show that no genuine issue of material fact exists and that it is entitled to
judgment as a matter of law.” Id. at 215–16; see TEX. R. CIV. P. 166a(c). A defendant
moving for summary judgment on an affirmative defense must prove conclusively the
elements of that defense. Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 646 (Tex.
2000). In our review, we take as true all evidence favorable to the non-movant, and we
indulge every reasonable inference and resolve any doubts in the non-movant’s favor.
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985).
B. Applicable Law
“A negligence claim arising from a personal injury must be brought within two years
from the date of injury.” Valverde v. Biela’s Glass & Aluminum Prods., 293 S.W.3d 751,
753 (Tex. App.—San Antonio 2009, pet. denied) (citing TEX. CIV. PRAC. & REM. CODE ANN.
§ 16.003(a)). If a plaintiff files her petition within the two years, service outside the two-
year period may still be valid if the plaintiff exercises diligence in procuring service on the
defendant. Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009); Gant v. DeLeon, 786
S.W.2d 259, 260 (Tex. 1990) (per curiam).
When a defendant has affirmatively pleaded the defense of the statute of
limitations and shown that service was not timely, the burden shifts to the plaintiff to prove
diligence. Ashley, 293 S.W.3d at 179; Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007)
(per curiam). 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 up until the time the defendant was served.” Proulx, 235 S.W.3d at 216.
Generally, the question of the plaintiff’s diligence in effecting service is one of fact, and is
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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. Id.
Although ordinarily 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.” Id.; see, e.g., Ashley, 293 S.W.3d at 180–81
(holding that unexplained eight-month gap demonstrated lack of diligence as a matter of
law); Gant, 786 S.W.2d at 260 (holding that unexplained delay of three periods totaling
38 months in obtaining service demonstrated lack of diligence as a matter of law). Thus,
the plaintiff has the burden to “present evidence regarding the efforts that were made to
serve the defendant, and to explain every lapse in effort or period of delay.” Proulx, 235
S.W.3d at 216.
C. Analysis
We construe Parr’s single issue on appeal as presenting two sub-issues: (1)
whether the trial court erred in finding that Parr’s service on HEB lacked diligence as a
matter of law; and (2) whether the trial court erred in granting summary judgment based
on the statute of limitations when HEB only pleaded laches in its answer.
By her first sub-issue, Parr argues that a lack of diligence was not established as
a matter of law as needed to support summary judgment based on the statute of
limitations. Here, Parr filed suit five days before the two-year limitations period expired,
but HEB was not served until well after that period expired. Thus, for Parr to show that
she was diligent in serving HEB on October 16, 2016, she must explain and account for
the entire period between November 22, 2014 and the notice to HEB almost twenty-two
months later. See Ashley, 293 S.W.3d at 179; Proulx, 235 S.W.3d at 216; see also
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$24,156.00 in U.S. Currency v. State, 247 S.W.3d 739, 744 (Tex. App.—Texarkana 2008,
no pet.) (“The duty to exercise diligence is a continuous one, extending until service is
perfected.”).
Parr attached to her response to HEB’s motion for summary judgment an affidavit
from her trial counsel explaining the reasons for the twenty-two month delay. The affidavit
stated that trial counsel: “prepared and filed a complaint on November 17, 2014” and told
Parr that “she would have to find another lawyer to take the case and time was of the
essence”; became very ill at some unspecified time during 2015 “with unexplained fatigue,
night sweats, dizzy spells and confusion and was having difficulty keeping up with [his]
case load”; suffered a pulmonary embolism in November of 2015 which kept him out of
commission through January 2016; was diagnosed with lymphoma in February of 2016
and as a result transferred almost all his cases, though he kept Parr’s; and went through
the files he had kept in October of 2016 and “realized Ms. Parr’s lawsuit had not been
served [and] immediately sent it out for service at that time.”
Here, Parr’s trial counsel’s affidavit does not provide any explanation as to why
service was not pursued between November 22, 2014 and December 31, 2014. Also,
trial counsel’s statement that he became ill at some unspecified time in 2015 with
“unexplained fatigue, night sweats, dizzy spells and confusion” does not explain why there
was never any attempt to serve HEB during almost all of 2015. Finally, by trial counsel’s
own affidavit, he did not transfer almost “all” of his other cases as a result of medical
issues until February 2016. Even indulging every reasonable inference in Parr’s favor,
Nixon, 690 S.W.2d at 548–49, Parr’s trial counsel fails to explain any diligence exercised
between January of 2015 and at least November of 2015 when counsel suffered a
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pulmonary embolism. None of this supports Parr’s contention that she acted as an
ordinarily prudent person would have acted under the same or similar circumstances.
See Proulx, 235 S.W.3d at 216.
After considering the facts—i.e., no attempts at all made for almost twenty-two
months with the inaction in only some of those months accounted for—we conclude that
Parr was not diligent as a matter of law in serving HEB with notice of her lawsuit. See
Ashley, 293 S.W.3d at 180–81; Proulx, 235 S.W.3d at 216; Gant, 786 S.W.2d at 260.
We overrule Parr’s first sub-issue as to the trial court’s granting of summary
judgment based on the statute of limitations.
By her second sub-issue, Parr argues that the trial court erred because HEB only
affirmatively pleaded laches in its answer to her suit, and the trial court granted summary
judgment based on the statute of limitations.2 The statute of limitations and laches are
two distinct affirmative defenses available to a defendant. See TEX. R. CIV. P. 94; see
also, e.g., Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988) (discussing
statute of limitations); Wayne v. A.V.A. Vending, Inc., 52 S.W.3d 412, 415 (Tex. App.—
Corpus Christi 2001, pet. denied) (discussing laches). And, if a defendant wants to rely
on an affirmative defense, it must specifically raise the defense in its pretrial pleadings.
MAN Engines & Components, Inc. v. Shows, 434 S.W.3d 132, 137 (Tex. 2014); see TEX.
R. CIV. P. 94.
However, Parr did not raise this argument in the trial court, object on this basis at
any point, or file a motion for a new trial raising this issue. Therefore, this complaint has
2 Although HEB only pleaded laches in its answer, HEB’s motion for summary judgment, Parr’s
response, and the arguments of both parties at the hearing were based only on the applicability of the
statute of limitations.
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not been preserved for our review, and any error has been waived. See TEX. R. APP. P.
33.1(a); D.R. Horton-Tex., Ltd. V. Markel Int’l Ins., 300 S.W.3d 740, 743 (Tex. 2009) (“In
summary judgment practice, ‘[i]ssues not expressly presented to the trial court by written
motion, answer or other response shall not be considered on appeal as grounds for
reversal.’”) (quoting TEX. R. CIV. P. 166a(c)).
We overrule Parr’s second and final sub-issue as to the trial court’s granting of
summary judgment based on the statute of limitations.
III. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS
Justice
Delivered and filed the
15th day of March, 2018.
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