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Perez v. Thomas

Court of Appeals of Texas, Second District, Fort Worth

June 6, 2019

Henry Perez and William Lopez, Appellants
v.
Eula Thomas, Appellee

          On Appeal from County Court at Law No. 2 Tarrant County, Texas Trial Court No. 2015-005958-2

          Before Gabriel, Kerr, and Pittman, JJ.

          MEMORANDUM OPINION

          Elizabeth Kerr, Justice.

         Henry 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.

         Background

         On 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.

         On 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.

         Perez 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.

         Standard of Review

         We 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 (Tex. 2008).

         Limitations 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).

         Service Outside the Limitations Period

         A 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).

         When a 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 ...


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