Court of Appeals of Texas, Second District, Fort Worth
Appeal from County Court at Law No. 2 Tarrant County, Texas
Trial Court No. 2015-005958-2
Gabriel, Kerr, and Pittman, JJ.
Elizabeth Kerr, Justice.
Perez and William Lopez appeal from the trial court's
final judgment granting summary judgment against them on
statute-of-limitations grounds in their suit against Eula
Thomas. We will affirm.
October 16, 2013, Thomas allegedly ran a red light and
crashed into a truck that Perez was driving. Lopez was a
passenger in Perez's vehicle.
October 15, 2015 (the day before limitations expired), Perez
and Lopez sued Thomas for negligence, seeking personal-injury
and property damages. See Tex. Civ. Prac. & Rem.
Code Ann. § 16.003(a) (setting a two-year limitations
period for personal-injury and property-damage actions). In
July 2016, the trial court dismissed the case for want of
prosecution. Perez and Lopez successfully moved to reinstate
the case the following month.
and Lopez served Thomas on April 27, 2017. Thomas answered
and then moved for summary judgment, arguing that limitations
barred Perez's and Lopez's claims because she was
served 18 months after limitations had expired and they did
not exercise due diligence in serving her with citation and
the petition. Perez and Lopez responded, but the trial court
granted Thomas's motion and issued a take-nothing
judgment against Perez and Lopez. Perez and Lopez have
appealed, raising two issues: (1) Perez and Lopez's
summary-judgment evidence raised a material fact issue on
diligence and (2) Thomas did not carry her summary-judgment
burden because she did not submit evidence with her motion.
review a summary judgment de novo. Travelers Ins. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We consider
the evidence presented in the light most favorable to the
nonmovant, crediting evidence favorable to the nonmovant if
reasonable jurors could, and disregarding evidence contrary
to the nonmovant unless reasonable jurors could not. Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable
inference and resolve any doubts in the nonmovant's
favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399
is an affirmative defense. Tex.R.Civ.P. 94. A defendant is
entitled to summary judgment on an affirmative defense if the
defendant conclusively proves all elements of that defense.
Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494,
508- 09 (Tex. 2010); see Tex. R. Civ. P. 166a(b),
(c). To accomplish this, the defendant must present
summary-judgment evidence that conclusively establishes each
element of the affirmative defense. See Chau v.
Riddle, 254 S.W.3d 453, 455 (Tex. 2008).
Outside the Limitations Period
plaintiff must bring suit for personal injuries and property
damages arising from an automobile accident not later than
two years after the day the cause of action accrues.
See Tex. Civ. Prac. & Rem. Code Ann. §
16.003(a). To "bring suit," a plaintiff must not
only file suit within the limitations period but must also
use diligence in serving the defendant. Gant v.
DeLeon, 786 S.W.2d 259, 260 (Tex. 1990). If a plaintiff
files suit within the limitations period but serves the
defendant after that period has expired, the service date
relates back to the filing date if the plaintiff was diligent
in serving the defendant. See id.; see also
Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007).
defendant affirmatively pleads a limitations defense and
shows that the plaintiff effected service after limitations
expired, the burden shifts to the plaintiff to explain the
delay. Proulx, 235 S.W.3d at 216. The plaintiff then
has the burden to present evidence regarding the efforts that
he made to serve the defendant and to explain every lapse in
effort or period of delay. Id. "In some
instances, the plaintiff's explanation may be
legally improper to raise the diligence issue and
the defendant will bear no burden at all." Id.
In others, "the plaintiff's explanation of its
service efforts may demonstrate a lack of due diligence as a
matter of law, as when one or more lapses between service
efforts are unexplained or patently unreasonable."
Id. If the ...