Appeal from the 269th District Court Harris County, Texas
Trial Court Cause No. 2014-14167
consists of Justices Jamison, Wise, and Jewell.
Hill Jamison Justice
Lethbridge appeals from the trial court's grant of
summary judgment, on statute of limitations grounds, against
her personal injury claims against Roderick
Small. In a single issue, Lethbridge challenges
the trial court's determination that as a matter of law,
she failed to use due diligence in perfecting service of
citation on Small. We affirm.
parties essentially agree on the procedural history of this
case as supported by the record. In her pleadings, Lethbridge
alleged that she and Small were involved in an automobile
collision on April 3, 2012. She accused Small of negligence,
negligence per se, and gross negligence in causing the
collision. These claims are subject to a two-year statute of
limitations, so the statutory period expired on April 4,
filed her original petition on March 17, 2014, citation
issued the same day, and an agent for Lethbridge, Edward
Johnson, collected the citation on March 20, 2014. According
to Johnson's affidavits, he attempted service on March 20
at the address for Small listed in the police incident
report. A woman at the address stated that she had lived
there for four months and did not know Small. On March 29,
2014, Johnson attempted service at a different address: 3712
12th Street in Brookshire, Texas. He heard movement within
the house, but when no one came to the door, he left his
contact information. Johnson attempted service again at this
address on April 1 and encountered a man whom he believed was
Small's brother. According to Johnson, the man telephoned
Small's mother and asked her where Small could be found,
but she said she did not know. Johnson left his contact
information with both Small's alleged brother and mother.
filed an amended petition adding Bob Stout as a defendant and
alleging that Stout owned the vehicle Small was driving and
that Small was acting in the course and scope of his
employment with Stout at the time of the collision.
months after the previous attempt, a new agent for Lethbridge
attempted service on Small on June 1 and June 4, 2015, but
was unsuccessful. However, the agent spoke on the telephone
to someone representing himself to be Small who said he knew
she was trying to deliver a legal document and that he would
not accept it.
agent for Lethbridge went to the same address later on June 4
and encountered a man who said that Wayne Small lived at the
residence, but the man did not know a Roderick Small. The
next day, the agent made another unsuccessful service attempt
at the same address and also spoke on the telephone to
someone representing himself to be Small's brother. This
person allegedly said that he would pass along contact
information to Small, but nothing apparently came from this
15, 2015, Lethbridge filed a Motion for Substituted Service,
which the trial court granted, and service was perfected on
July 8, 2015. Small thereafter filed a motion for summary
judgment contending that Lethbridge's claims were barred
by the statute of limitations because she had failed to
exercise due diligence in the service of citation. The trial
court granted the motion, and this appeal followed.
review de novo a trial court's grant of summary judgment.
See Mann Frankfort Stein & Lipp Advisors, Inc. v.
Fielding, 289 S.W.3d 844, 848 (Tex. 2009). In a
traditional motion for summary judgment, such as was granted
here, the movant has the burden of establishing that there is
no genuine issue as to any material fact and that the movant
is entitled to judgment as a matter of law. Id.
(citing Tex.R.Civ.P. 166a(c)). When a defendant moves for
summary judgment on an affirmative defense, such as the
statute of limitations, it must conclusively prove all the
essential elements of the defense as a matter of law, leaving
no issues of material fact. Frost Nat'l Bank v.
Burge, 29 S.W.3d 580, 587 (Tex. App.-Houston [14th
Dist.] 2000, no pet.). We consider all the evidence in the
light most favorable to the nonmovant, crediting evidence
favorable to the nonmovant if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could
not. See Fielding, 289 S.W.3d at 848. The evidence
raises a genuine issue of fact if reasonable and fair-minded
jurors could differ in their conclusions in light of all of
the summary judgment evidence. Goodyear Tire & Rubber
Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per
for personal injuries must be brought within two years from
the time the cause of action accrues. See Tex. Civ.
Prac. & Rem. Code § 16.003(a). A timely filed suit,
however, will not interrupt the running of limitations unless
the plaintiff exercises due diligence in the issuance and
service of citation. 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. Once a defendant has
affirmatively pleaded the limitations defense and shown that
service was effected after limitations expired, the burden
shifts to the plaintiff to explain the delay. Id. at
216. Thus, it is the plaintiff's 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. Id. But if the ...