Appeal from the County Civil Court at Law No. 4 Harris
County, Texas Trial Court Cause No. 1067857
consists of Chief Justice Frost and Justices Bourliot and
FRANCES BOURLIOT JUSTICE
an appeal from the trial court's grant of summary
judgment in favor of Daisy Sanchez Dominguez based on Dolly
Ann Islas' failure to exercise due diligence in procuring
citation and effectuating service of process on Dominguez
before the two-year statute of limitations expired. We
alleges she was injured in a car accident on December 9, 2014
when Dominguez failed to yield the right of way while turning
left across traffic, resulting in a collision. Islas filed
suit on September 23, 2015. Islas moved for substituted
service on January 13, 2016. Her attorney attached an
affidavit to the motion in which he attested, "I have
exercised due diligence in attempting to locate the
whereabouts of Daisy Sanchez Dominguez and have been unable
to do so. I have attempted by mail, [publicdata.com], and
phone books." The trial court signed an order granting
the motion for substituted service on January 22, 2016,
authorizing Islas to serve Dominguez with citation by
publication. The statute of limitations expired on December
9, 2016. On January 20, 2017, Islas moved the court to
appoint an attorney to defend Dominguez "because service
will be made by publication." The trial court appointed an
attorney ad litem on January 26, 2017. Service on Dominguez
was effected on February 22, 2017.
answered, pleaded the affirmative defense of limitations, and
filed a motion for summary judgment on the ground that Islas
had not served Dominguez before the statute of limitations
expired. In her response, Islas argued she served Dominguez
"only two months after the expiration of the statute of
limitations," Dominguez did not conclusively prove
Islas' lack of due diligence, and Islas "searched
all databases and public records for the whereabouts of
[Dominguez] before determining that [counsel] was going to be
unable to locate [Dominguez]." Islas presented an
affidavit from the attorney ad litem attesting that it took
him three to four months to locate Dominguez. The trial court
granted Dominguez's motion and dismissed the lawsuit.
three issues, Islas contends that the trial court erred in
granting the trial court's motion for summary judgment
because (1) the pleadings attached to Dominguez's motion
were not authenticated, (2) Dominguez did not conclusively
prove her affirmative defense of limitations, and (3) Islas
diligently obtained service after the expiration of the
statute of limitations.
review de novo the trial court's grant of summary
judgment. See Sharp v. Kroger Tex. L.P., 500 S.W.3d
117, 119 (Tex. App.-Houston [14th Dist.] 2016, no pet.). In a
traditional motion for summary judgment, 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, she must conclusively prove all the
essential elements of her defense as a matter of law, leaving
no issues of material fact. Id. 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 id. 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. Id.
for personal injuries must be brought within two years from
the time the cause of action accrues. Tex. Civ. Prac. &
Rem. Code § 16.003(a). But a timely filed suit 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); Sharp, 500 S.W.3d at 119. If service is
diligently effected after limitations has expired, the date
of service will relate back to the date of filing.
Proulx, 235 S.W.3d at 215; Sharp, 500
S.W.3d at 119. 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. Proulx, 235 S.W.3d at 216;
Sharp, 500 S.W.3d at 119. Thus, the plaintiff has
the 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. Proulx, 235 S.W.3d at
216; Sharp, 500 S.W.3d at 119. But if the
plaintiff's explanation for the delay raises a material
fact issue concerning the diligence of service efforts, the
burden shifts back to the defendant to conclusively show why,
as a matter of law, the explanation is insufficient.
Proulx, 235 S.W.3d at 216; Sharp, 500
S.W.3d at 119.
undisputed that Islas filed suit before the statute of
limitations expired but did not serve Dominguez with process
until after that date. Dominguez pleaded the affirmative
defense of limitations. The burden then shifted to Islas to
demonstrate due diligence as to every period of delay in
procuring citation and effecting service on Dominguez.
See Sharp, 500 S.W.3d at 119.
complains, however, that the pleadings attached to the motion
for summary judgment (which were from this lawsuit) were not
authenticated. We presume the trial court took into
consideration the file that was before it in its own court.
See Air Routing Int'l Corp. (Canada) v. Britannia
Airways, Ltd., 150 S.W.3d 682, 697 n.15 (Tex.
App.-Houston [14th Dist.] 2004, no pet.) (citing Holley
v. Holley, 864 S.W.2d 703, 706 (Tex. App.-Houston [1st
Dist.] 1993, writ denied) (stating "[t]he trial court
may properly take into consideration the file that is before
it . . . [w]e presume the trial court took judicial notice of
its files")). Dominguez was only required to state in
her motion for summary judgment that she pleaded the
affirmative defense of limitations and was not required to
attach authenticated copies of the pleadings that are in the
trial court's file. See Sharp, 500 S.W.3d at
119. The burden then shifted to Islas to show due diligence.
argues that she showed due diligence because she served
Dominguez only two and a half months after the expiration of
the statute of limitations and diligence should be measured
after the expiration of the statute of limitations. But we
have repeatedly held that "the measure of diligence
begins from the time the suit is filed and an explanation is
needed for every period of delay." Sharp, 500
S.W.3d at 120; see also Tran v. Trejos, No.
14-17-00998-CV, 2019 WL 962605, at *3 (Tex. App.-Houston
[14th Dist.] Feb. 28, 2019, no pet.) (mem. op.); Milcoun
v. Werner Co., 565 S.W.3d 358, 362 (Tex. App.-Houston
[14th Dist.] 2018, no pet.); Callaway v. Beuhler,
No. 14-16-00554-CV, 2016 WL 7478379, at *3 (Tex. App.-Houston
[14th Dist.] Dec. ...