law-diligence-in-serving-defendant | statute of limitations defense | sufficiency of service of citation |
substituted service of process | citation by publication |
If a plaintiff files its petition within the limitations period, service outside the limitations 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) (citing Zale Corp v. Rosenbaum, 520 S.W.2d 889, 890 (Tex. 1975) (per curiam)).
Once a defendant has affirmatively pleaded the defense of limitations and shown that service was
untimely, the burden shifts to the plaintiff to prove diligence in her efforts to effectuate service.
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." Ashley, 293 S.W.3d at 179 (quoting Proulx, 235 S.W.3d at 216). Although
ordinarily a fact question, a plaintiff's evidence 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. (quoting Proulx, 235 S.W.3d at 216). The plaintiff has the burden to explain every lapse in effort
or period of delay. Proulx, 235 S.W.3d at 216 (citing Gant, 786 S.W.2d at 260).
DUE DILIGENCE IN EFFECTING SERVICE ON DEFENDANT WHEN SOL IS UP
To comply with the statute of limitations, a plaintiff must file suit within the applicable limitations period and
use diligence to serve the defendant with process. Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007). If
service is diligently effected after limitations has expired, the date of service will relate back to the date of
filing. Id.; accord Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990); Zale Corp. v. Rosenbaum, 520 S.W.2d
889, 890 (Tex. 1975) (per curiam). Due diligence depends on: (1) whether the plaintiff acted as an ordinary
prudent person would act under the same circumstances; and (2) whether the plaintiff acted diligently up
until the time defendant was actually served. Lawrence v. Geico Gen. Ins. Co., No. 01-07-00873-CV, 2009
WL 1886177, at *3 (Tex. App.—Houston [1st Dist.] July 2, 2009, no pet.) (mem. op.); accord Eichel v. Ulla,
831 S.W.2d 42, 44 (Tex. App.—El Paso 1992, no writ). Whether the plaintiff acted with due diligence is a
question of fact. Eichel, 831 S.W.2d at 43. Only when the plaintiff offers no valid explanation for the delay in
service may the question of due diligence be answered as a matter of law. Id. at 44.
Aguilar v. Dojo Enterprises, Inc. (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Massengale)
(take-nothing judgment in personal injury suit affirmed) (statute of limitations and due diligence in serving
defendant, deemed admissions, waiver of arguments on appeal on account in inadequate briefing)
AFFIRM TC JUDGMENT: Opinion by Justice Massengale
Before Chief Justice Radack, Justices Bland and Massengale
01-07-00903-CV Estelita Aguilar v. Dojo Enterprises, Inc. d/b/a Party City
Appeal from 127th District Court of Harris County
Trial Court Judge: Hon. Sharolyn Wood
Aguilar’s claim was subject to the two-year statute of limitations. See Tex. Civ. Prac. & Rem. Code Ann. §
16.003(a) (Vernon 2002) (stating two-year statute of limitations for personal injury tort claims). Aguilar’s
alleged injury occurred on January 15, 2002. She filed suit on January 14, 2004. No evidence of the date of
service was introduced at trial, and we find no such evidence in the appellate record. However, Dojo
Enterprises answered the lawsuit on January 23, 2006, raising the affirmative defense of limitations at that
time. At trial, Aguilar offered no evidence and no argument regarding her attempts to serve Dojo Enterprises
with process. Instead, Aguilar’s attorney described the interactions he had with the insurance adjusters for
Dojo Enterprises. In the appellant’s brief, Aguilar’s attorney noted that Dojo Enterprises had actual
knowledge of the lawsuit on July 19, 2005, because he faxed a copy of Aguilar’s original petition to an
insurance adjuster.
None of this was sufficient to show due diligence in service of process. Even actual knowledge is not a
substitute for service of process. Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990) (“Absent service, waiver,
or citation, mere knowledge of a pending suit does not place any duty on a defendant to act.”); see Tex. R.
Civ. P. 21 (“Every pleading . . . shall be served on all other parties.”). We hold that the trial court did not err
by finding in favor of Dojo Enterprises on the statute of limitations.
Due Diligence
To comply with the statute of limitations, a plaintiff must file suit within the applicable limitations period and
use diligence to serve the defendant with process. Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007). If
service is diligently effected after limitations has expired, the date of service will relate back to the date of
filing. Id.; accord Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990); Zale Corp. v. Rosenbaum, 520 S.W.2d
889, 890 (Tex. 1975) (per curiam). Due diligence depends on: (1) whether plaintiffs acted as ordinary
prudent persons would act under the same circumstances; and (2) whether plaintiffs acted diligently up until
the time defendant was actually served. Eichel v. Ulla, 831 S.W.2d 42, 44 (Tex. App.—El Paso 1992, no
writ); accord Evans Am. Corp. v. Munter’s Moisture Control, No. 01-92-01046-CV, 1993 WL 518607, *1 (Tex.
App.—Houston [1st Dist.] December 16, 1993, no writ) (not designated for publication). Whether the plaintiff
acted with due diligence is a question of fact. Eichel, 831 S.W.2d at 43. Only where the plaintiff offers no
valid explanation for the delay in service may the question of due diligence be answered as a matter of law.
Id. at 44.
Discussion
Geico’s subrogation claim was subject to the two-year statute of limitations. See Tex. Civ. Prac. & Rem. Code
Ann. § 16.003 (Vernon 2002) (stating two-year statute of limitations for property-damage tort claims); Brown
v. Zimmerman, 160 S.W.3d 695, 700 (Tex. App.—Dallas 2005, no pet.) (“There is no specific statute of
limitations for subrogation actions. Instead, these actions generally are subject to the same statute which
would apply had the action been brought by the subrogee.”). At trial, Geico presented detailed evidence
about its efforts to serve Lawrence.
Lawrence contends that this was insufficient to show due diligence because Geico did not seek substituted
service under Texas Rule of Civil Procedure 106. See Tex. R. Civ. P. 106 (b) (providing that substituted
service may be accomplished by leaving citation with qualified person at “defendant’s usual place of
business or usual place of abode or other place where the defendant can probably be found . . . .”).
Lawrence argues that Geico should have served his father or mother at their address. But Geico presented
the affidavit of Joe Blum, the process server, who knocked on Lawrence’s parents’ door and was told that
Lawrence did not live there. In addition, Lawrence’s father testified at trial that Lawrence did not live with him
at the time Blum was looking for him. Levin explained twice during his trial testimony that he believed service
under Rule 106 to be inappropriate because Geico had information indicating that Lawrence’s parents’
house was not Lawrence’s usual place of business or abode or a place where he could probably be found.
Geico also responds that it requested issuance of a citation upon filing its petition, engaging a process
server, a private investigator, and staff attorneys to locate and serve Lawrence. About eight months after
filing suit, Geico served Lawrence by publication in accordance with Texas Rule of Civil Procedure 109.
Upon noticing a typographical error in the citation, Geico’s attorneys sought a corrected citation. After again
serving Lawrence by publication, Geico sought and obtained the appointment of an attorney ad litem to
represent Lawrence. Service by publication thus was accomplished eight months after suit. Geico
continued to search for Lawrence and eventually personally served him a second time, about seven months
after the service by publication. Neil Levin, the managing attorney for Geico’s staff counsel office, testified
that he was involved with this case from its inception and “not a single month . . . passed that something
wasn’t being done in one form or another with this file until service was achieved by publication.” In addition,
Geico continued to work on this case every month until actual personal service was accomplished after
service by publication. Viewing the evidence in the light most favorable to the jury’s finding, we conclude that
a reasonable jury could have found that Geico acted as a reasonably prudent party would act and acted
diligently until Lawrence was served with citation
Lawrence v. Geico (Tex.App.- Houston [1st Dist.] Jul. 2, 2009)(Sharp)
(car wreck, subrogation claim in car collision, SoL, diligence in procuring service on defendant, admission of
evidence, police report, requirements for proper evidentiary objection, specificity, hearsay objection)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Sharp
Before Justices Taft, Bland and Sharp
01-07-00873-CV Jonathan A. Lawrence v. Geico General Insurance Company, as Subrogee
Appeal from the 405th District Court of Galveston County
Trial Court Judge: Hon. Wayne J. Mallia
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