Court of Appeals of Texas, Fifth District, Dallas
FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY, AS SUBROGEE OF MALOREE TENNISON, Appellant
KRISTEN MELISSA MCABEE, Appellee
Appeal from the County Court at Law No. 4 Collin County,
Texas Trial Court Cause No. 004-03135-2017
Justices Bridges, Partida-Kipness, and Carlyle
Texas County Mutual Insurance Company, as subrogee of Maloree
Tennison, appeals the trial court's adverse summary
judgment on its claims against Kristen Melissa McAbee.
Presenting a single issue, Farmers asserts the trial court
erred in granting summary judgment based on limitations
because the summary judgment evidence did not conclusively
establish Farmers' lack of due diligence in serving
McAbee. We affirm the summary judgment.
dispute arises from an automobile accident that occurred on
January 11, 2016 between Maloree Tennison and Kristen Melissa
McAbee. After Farmers paid its insured, Tennison, for
property damage her vehicle sustained in the accident, it
filed this lawsuit against McAbee on December 29, 2017,
shortly before the two-year limitations period expired. On
January 31, 2018, the trial court issued a notice of
dismissal for want of prosecution (DWOP) setting the matter
for a hearing on March 2, 2018. On February 28, 2018,
Farmers' counsel first requested citation be issued to
McAbee. The request was made about six weeks after
limitations had expired on the case. Citation was issued on
March 1 and McAbee was served at her home the following day,
on March 2.
March 23, McAbee filed an answer to the lawsuit, along with a
traditional motion for summary judgment, asserting that
Farmers' claims against her were barred by limitations.
Specifically, she argued the case was time-barred because
Farmers did not use diligence in serving her. Farmers opposed
the motion, relying primarily on the affidavit of its
attorney. Farmers argued its evidence sufficiently explained
the delay in serving McAbee. After hearing oral arguments,
the trial court granted a take-nothing summary judgment in
favor of McAbee based on limitations. Farmers filed this
sole issue, Farmers generally argues that because it provided
evidence of an explanation for the duration of the delay
between when the petition was filed and when McAbee was
served, McAbee did not establish Farmers' lack of due
diligence as a matter of law. We disagree.
review the trial court's summary judgment ruling de novo.
See Exxon Corp. v. Emerald Oil & Gas Co., L.C.,
331 S.W.3d 419, 422 (Tex. 2010). The movant for traditional
summary judgment has the burden to establish there is no
genuine issue of material fact and that it is entitled to
summary judgment as a matter of law. See Tex. R.
Civ. P. 166a(c). When reviewing a summary judgment, we take
as true all evidence favorable to the nonmovant, and we
indulge every reasonable inference and resolve any doubts in
the nonmovant's favor. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
mere filing of a petition within the limitations period will
not interrupt the running of limitations unless the plaintiff
exercises diligence in procuring the issuance and service of
citation on the defendant. See Ashley v. Hawkins,
293 S.W.3d 175, 179 (Tex. 2009). Once McAbee moved for
summary judgment on her limitations defense and showed that
service was not timely, the burden shifted to Farmers to
prove diligence in serving her. Id. If Farmers'
explanation for the delay raises a material fact issue
concerning the diligence of service effort, the burden shifts
back to McAbee to conclusively show why, as a matter of law,
the explanation is insufficient. See Proulx v.
Wells, 235 S.W.3d 213, 216 (Tex. 2007) (per curiam). If,
however, Farmers' explanation of its service efforts
demonstrates a lack of due diligence as a matter of law, such
as when one or more lapses are unexplained, or the
explanation is patently unreasonable, summary judgment is
appropriate. See id. In assessing diligence, the
relevant focus is 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 when
the defendant was served. Id.
it is undisputed that McAbee had not been served with the
petition when the statute of limitations expired on January
11, 2018. In fact, McAbee was not served until almost two
months later, on March 2. In response to McAbee's summary
judgment motion, Farmers' attorney submitted an affidavit
stating that he had no staff over the holidays and "due
to an oversight," he failed to include a request for
citation when filing the petition. He further indicated his
new paralegal had no reason to know citation had not been
requested. Moreover, he said he did not receive the trial
court's January 31 notice of dismissal for want of
prosecution until February 20. Nevertheless, request for
citation was not issued until February 28, two days before
the DWOP hearing. McAbee was served on March 2, the day of
the DWOP hearing.
appeal, Farmers contends its evidence created a fact issue
regarding diligence because there was only a sixty-two-day
delay between the filing of the petition and service on
McAbee, and Farmers offered an explanation for the delay. But
it is not simply the length of the delay here that is
dispositive. We must also consider Farmers' effort to
procure citation in the first place. The record reveals
Farmers' counsel simply did not request citation when the
petition was filed, nor did he request citation upon
receiving the trial court's DWOP notice on February 20.
It appears that Farmers' counsel was not even aware that
he had not requested issuance of citation until February 28,
one week after he asserts he received the trial court's
DWOP notice. Farmers' summary judgment evidence simply
explained why it did nothing to procure service until
February 28 rather than explain what steps it took to procure
service on McAbee. See Slagle v. Prickett, 345
S.W.3d 693, 698 (Tex. App.-El Paso 2011, no pet.) (when
defendant complains of lack of due diligence, plaintiff must
explain steps he took to obtain service not explain why he
did nothing). Moreover, there is no reason given as to why
Farmers waited from December 29, 2017, the day the petition
was filed, until February 28 to check to see if McAbee had
been served and thus discover its error.
conclude the circumstances here present a situation in which
Farmers did not exercise due diligence to procure issuance of
citation and service as matter of law. Rather, the efforts
can only be described as lacking and not the efforts an
ordinarily prudent person would have used under the same or
similar circumstances. See Proulx, 235 S.W.3d at
216; Stoney v. Gurmatakis, No. 01-09-00733-CV, 2010
WL 1840247, at *3-4 (Tex. App.-Houston [1st Dist.] May 6,
2010, no pet.) (mem. op.) (attorney's failure to contact
process server and ...