IN THE SUPREME COURT OF TEXAS

&nbs= p;=20 In this case, the court of appeals held that limitations barred the = plaintiff=92s=20 suit because, as a matter of law, he was not diligent in serving the = defendant=20 with process. 186 S.W.3d 630, 631. We hold that the summary-judgment = evidence=20 failed to conclusively establish that the plaintiff did not exercise = diligence=20 in effecting service, and reverse the court of appeals=92 judgment.

&nbs= p;=20 Denis Proulx filed this personal-injury suit against Michael Wells on = May 2,=20 2003, shortly before the statute of limitations expired on May 21, 2003. = Proulx=92s process server, Brian Duffe, received the citation on May 20, = 2003, and=20 from May 21, 2003, until September 17, 2003, he made twenty-three = attempts to=20 serve Wells at four different addresses. Eleven of these attempts were = made=20 between May 21st and July 22nd at 701 Riverside Drive in Arlington, = Texas. On=20 July 31, 2003, Duffe informed Proulx=92s attorney that he did not = believe Wells=20 lived at that address, and an in-house investigator was utilized to = ascertain=20 Wells=92s whereabouts. The investigator located three possible = alternative=20 addresses for Wells, and Duffe made twelve unsuccessful attempts between = August=20 5 and September 17, 2003, to serve Wells at those addresses.

&nbs= p;=20 On October 17, 2003, Proulx turned to another process server, Cynthia = Rosser,=20 for assistance. From the time she received the citation on October 17, = 2003,=20 until December 5, 2003, Rosser made seven service attempts at two = different=20 addresses. In addition, between December 5 and December 10, 2003, Rosser = made=20 over twenty calls to Wells=92s brother, who resided at the address Wells = listed on=20 his driver=92s license. During this time, Proulx also hired a private=20 investigator, Arthur Cantrell, to locate Wells. Cantrell concluded that = Wells=20 was moving from relative to relative in an attempt to avoid service from = creditors and courts, and suggested that substituted service under Rule = 106=20 would be the best solution. Tex. R. Civ.=20 P. 106(b). On January 15, 2004, Proulx filed a motion for = substituted=20 service. Service was finally effected by substituted service on = Wells=92s brother=20 on January 26, 2004, a little over eight months after the statute of = limitations=20 expired. Wells moved for summary judgment claiming that, although suit = was=20 timely filed, the statute of limitations had run because Proulx failed = to=20 exercise due diligence in securing service of process. The trial court = granted=20 summary judgment in Wells=92s favor, and a divided court of appeals = affirmed,=20 holding Proulx lacked diligence in effecting service as a matter of law. = 186=20 S.W.3d at 631. We disagree.

&nbs= p;=20 A suit for personal injuries must be brought within two years from the = time the=20 cause of action accrues. See=20 Tex. Civ. Prac. = & Rem.=20 Code =A7 16.003(a). But a timely filed suit will not interrupt = the running=20 of limitations unless the plaintiff exercises due diligence in the = issuance and=20 service of citation. Murray v. San Jacinto Agency, Inc., = 800=20 S.W.2d 826, 830 (Tex. 1990); Rigo Mfg. Co. v. Thomas, 458 S.W.2d = 180, 182=20 (Tex. 1970). If service is diligently effected after limitations has = expired,=20 the date of service will relate back to the date of filing. Gant v.=20 DeLeon, 786 S.W.2d 259, 260 (Tex. 1990).

&nbs= p;=20 Our jurisprudence has at times been less than clear in explaining the=20 summary-judgment burden that inheres when the diligent-service question = is=20 presented. See Brown v. Shores, 77 S.W.3d 884, 888-89 (Tex. = App.=97Houston=20 [14th Dist.] 2002, no pet.) (Brister,=20 C.J., concurring); Tranter v. Duemling, 129 S.W.3d 257, = 260 (Tex.=20 App.=97El Paso 2004, no pet.). We have stated that a plaintiff=92s mere = pleading of=20 diligence in response to a summary-judgment motion shifts the burden to = the=20 defendant to disprove diligence as a matter of law. See Zale Corp. v. = Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975) (=93[When the nonmovant] = pleads=20 diligence in requesting issuance of citation, the limitation defense is = not=20 conclusively established until the movant meets his burden of negating = the=20 applicability of [this] issue[].=94). More recently, we have said that = once the=20 defendant demonstrates that service occurred after the limitations = deadline, the=20 burden shifts to the plaintiff =93to explain the delay.=94 = Murray, 800 S.W.2d=20 at 830. These seemingly inconsistent statements, however, are not = irreconcilable=20 when read in context. In Zale, though we did not refer to the = record=20 before us, the plaintiff in fact presented evidence explaining the delay = in=20 service. See 520 S.W.2d at 890-91. Because the plaintiff both = pled and=20 presented evidence of due diligence in effecting service, our holding = that the=20 defendant then bore the burden to disprove diligence as a matter of law = does not=20 conflict with our analysis in Murray.

&nbs= p;=20 In Murray, we held that once a defendant has affirmatively pled = the=20 limitations defense and shown that service was effected after = limitations=20 expired, the burden shifts to the plaintiff =93to explain the delay.=94 = 800 S.W.2d=20 at 830. Thus, it is the plaintiff=92s burden to present evidence = regarding the=20 efforts that were made to serve the defendant, and to explain every = lapse in=20 effort or period of delay. See Gant, 786 S.W.2d at 260. In some=20 instances, the plaintiff=92s explanation may be legally improper = to raise=20 the diligence issue and the defendant will bear no burden at all. See = Brown, 77 S.W.3d at 890 (Brister,=20 C.J., concurring) (citing Belleza-Gonzalez v. Villa, 57 = S.W.3d 8,=20 11 (Tex. App.=97 Houston [14th Dist.] 2001, no pet.) (holding = unenforceable oral=20 agreement to delay service was insufficient to show diligence as a = matter of=20 law), and Broom v. MacMaster, 992 S.W.2d 659, 665 (Tex. App.=97 = Dallas=20 1999, no pet.) (holding plaintiff=92s desire to obtain remand from = federal court=20 did not justify delay in serving defendant)). In others, the = plaintiff=92s=20 explanation of its service efforts may demonstrate a lack of due = diligence as a=20 matter of law, as when one or more lapses between service efforts are=20 unexplained or patently unreasonable. See, e.g., = Gant, 786=20 S.W.2d at 260; Brown, 77 S.W.3d at 887; Tarrant County v.=20 Vandigriff, 71 S.W.3d 921, 925-26 (Tex. App.=97Fort Worth 2002, pet. = denied).=20 But if the plaintiff=92s explanation for the delay raises a material = fact issue=20 concerning the diligence of service efforts, the burden shifts back to = the=20 defendant to conclusively show why, as a matter of law, the explanation = is=20 insufficient. Zale, 520 S.W.2d at 891.

&nbs= p;=20 In assessing diligence, the relevant inquiry is whether the plaintiff = acted as=20 an ordinarily prudent person would have acted under the same or similar=20 circumstances and was diligent up until the time the defendant was = served.=20 See Tate v. Beal, 119 S.W.3d 378, 381 (Tex. App.=97Fort = Worth 2003,=20 pet. denied); Hodge v. Smith, 856 S.W.2d 212, 215 (Tex. = App.=97Houston [1st=20 Dist.] 1993, writ denied). Generally, the question of the plaintiff=92s = diligence=20 in effecting service is one of fact, and is determined by examining the = time it=20 took to secure citation, service, or both, and the type of effort or = lack of=20 effort the plaintiff expended in procuring service. See Webster v.=20 Thomas, 5 S.W.3d 287, 289-90 (Tex. App.=97Houston [14th Dist.] 1999, = no=20 pet.).

&nbs= p;=20 In this case, Wells contends there were periods of delay for which = Proulx failed=20 to provide an adequate explanation, and in any event the nine months = that=20 elapsed between the time suit was filed and substituted service was = effected=20 demonstrates lack of diligence as matter of law. Proulx, on the other = hand,=20 contends his summary-judgment evidence adequately explains all periods = of delay=20 between the filing of suit and service of citation. According to Proulx, = the=20 evidence presented and the reasonable inferences drawn therefrom = demonstrate=20 that his efforts to procure service were those an ordinarily prudent = person=20 would have used under the same or similar circumstances, particularly in = light=20 of evidence that Wells was actively avoiding service. The court of = appeals=20 identified specific periods of delay in Proulx=92s service efforts, and = concluded=20 Proulx was not diligent in effecting service during these times. 186 = S.W.3d at=20 636. Specifically, the court pointed to a nineteen-day period from the = lawsuit=92s=20 filing to the first process server=92s receipt of citation, three weeks = that=20 passed between dismissal of the suit for want of prosecution and the = filing of a=20 motion to reinstate,[1]=20 a nearly five-month period that passed before Proulx hired a private=20 investigator to locate Wells, twenty-four days that passed before = citation was=20 delivered to the second process server, and the overall nine months that = passed=20 between filing of suit and successful service. Id. However, that = some=20 periods of time elapsed between service efforts does not conclusively=20 demonstrate that Proulx was not exercising diligence in his efforts to = locate=20 Wells. According to the summary-judgment evidence, Proulx utilized two = process=20 servers and two investigators in attempting to locate an address at = which=20 service could be effected. Over the course of the nine months that = elapsed=20 before substituted service was obtained, thirty service attempts were = made at=20 five different addresses. The difficulties that Proulx encountered in = effecting=20 service were attributed by a private investigator to the fact that Wells = was=20 =93moving from relative to relative and doing his best to avoid service = from the=20 courts and creditors.=94 The circumstances presented are far different = from those=20 in which courts have found lack of diligence as a matter of law.

&nbs= p;=20 In Gant, for example, we held that the plaintiff had failed to = exercise=20 due diligence as a matter of law because he provided no explanation for = delays=20 in service for three periods totaling thirty-eight months. 786 S.W.2d at = 260;=20 see also Webster, 5 S.W.3d at 291 (holding no due diligence as a = matter=20 of law when evidence showed plaintiff=92s actions over four months were = not=20 designed to procure the issuance and service of citation); Butler v.=20 Ross, 836 S.W.2d 833, 836 (Tex. App.=97Houston [1st Dist.] 1992, no = writ)=20 (holding five-and-a-half months of inactivity and no service efforts = between=20 failed attempts at the wrong address and proper service at the correct = address=20 constituted a lack of due diligence); Hansler v. Mainka, 807 = S.W.2d 3, 5=20 (Tex. App.=97Corpus Christi 1991, no writ) (stating that request for = service five=20 months after suit was filed affirmatively demonstrated lack of due = diligence).=20 In this case, there are no comparable periods of unexplained inaction. = In light=20 of the evidence that was presented regarding Proulx=92s continuous = investigation=20 and repeated service attempts, coupled with evidence that Wells was = deliberately=20 avoiding service, we conclude that Wells failed to conclusively = establish lack=20 of diligence.

&nbs= p;=20 Accordingly, without hearing oral argument pursuant to Rule 59.1 of the = Texas=20 Rules of Appellate Procedure, we reverse the court of appeals=92 = judgment and=20 remand the case to the trial court for further proceedings.

OPINION = DELIVERED: August=20 31, 2007