                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-10-00142-CV


JERRY C. HAMILTON                                                 APPELLANT

                                        V.

TEXAS CES, INC. D/B/A MERCER                                      APPELLEES
WELL SERVICES AKA RED RIVER
WELL SERVICE, LTD. D/B/A
MERCER WELL SERVICES AND
XTO ENERGY, INC.


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          FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

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                       MEMORANDUM OPINION1
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                                  I. Introduction

      Appellant Jerry C. Hamilton appeals the summary judgment granted

against him and in favor of Appellee Texas CES, Inc. d/b/a Mercer Well Services

aka Red River Well Service, Ltd. d/b/a Mercer Well Services (Mercer). Hamilton

      1
      See Tex. R. App. P. 47.4.
contends in one issue that the trial court erred by granting Mercer’s motion for

summary judgment based on a statute of limitations. We affirm.

                                 II. Background

      Hamilton filed suit against Mercer and XTO Energy, Inc. (XTO) on August

20, 2008, alleging that he was injured on November 7, 2006, and that his injury

was caused by Mercer and XTO’s negligence.2 Hamilton requested and paid for

service of citation on Mercer and XTO simultaneously with filing the lawsuit. XTO

was served on September 15, 2008, but Mercer was not served until September

25, 2009.    After filing its answer, Mercer moved for a traditional summary

judgment based on the statute of limitations, arguing that Hamilton failed to

exercise due diligence because he did not serve Mercer with citation for more

than nine months after the statute of limitations expired.

      Hamilton’s response to Mercer’s motion for summary judgment included an

affidavit by Bill Bivin, the Cooke County Sheriff’s Deputy designated to serve

Mercer with citation, and an affidavit by Angela Bongat, an associate with the law

firm representing Hamilton. In his affidavit, Deputy Bivin stated that he attempted

to serve Mercer’s registered agent on August 26, 2008, September 9, 2008, and

September 23, 2008, and that Mercer’s registered agent was not in the office on

any of those dates. Deputy Bivin also testified that he subsequently had ―various


      2
       Hamilton lists XTO as a party to this appeal, but the trial court severed
Hamilton’s claims against Mercer from his claims against XTO after it granted
Mercer’s motion for summary judgment. XTO has therefore not filed a brief.


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personal medical conditions that required [his] frequent hospitalization‖ and that

he did not delegate the task of serving Mercer to another officer. Deputy Bivin

further stated that Hamilton’s attorney called him on September 18, 2009; that he

had several conversations ―with the law office‖ between September 18 and 24,

2009; and that on September 24, 2009, he located the original citation ―[l]odged

between the center console and the seat of his car.‖3        Deputy Bivin served

Mercer with citation on September 25, 2009.

      Bongat averred in her affidavit that Deputy Bivin had not been instructed to

―hold off on serving‖ Mercer. Bongat also stated: ―Up until mid September 2009,

it was always the belief of our office that Mercer had been properly served

because the check for service had been cashed immediately, we did not receive

any phone calls from the Cooke County Sheriff’s Department regarding any

problems with citation, and we never received the citation back from their office.‖

Other than confirming that Hamilton’s attorneys assumed that Mercer had been

served, Bongat’s affidavit does not identify any efforts to effectuate service on

Mercer between the date the lawsuit was filed on August 20, 2008, and the date

that the law firm contacted Deputy Bivin on September 18, 2009.



      3
        Deputy Bivin also averred that Hamilton’s attorneys were ―never advised
that there were any issues regarding service,‖ that Hamilton’s attorneys did not
instruct him ―to hold off on servi[ce of] the citation,‖ and that based on his
conversations with Hamilton’s attorneys, he understood that the attorneys
―believed that the citation had been properly executed and that they had just not
received the return of service.‖


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      After a hearing, the trial court granted Mercer’s motion for summary

judgment, and this appeal followed.

                             III. Standard of Review

      We review a summary judgment de novo. Travelers Ins. Co. 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).

      That a claim is barred by the statute of limitations is an affirmative defense.

In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 308 (Tex. 2010) (orig.

proceeding).    A defendant is entitled to summary judgment on an affirmative

defense if the defendant conclusively proves all the elements of the affirmative

defense. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010);

see Tex. R. Civ. P. 166a(b), (c).

                                    IV. Discussion

      Hamilton contends in his sole issue that the trial court erred by granting

Mercer’s motion for summary judgment based on the affirmative defense of

statute of limitations.




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A. Applicable Law

      A personal injury suit must be brought within two years from the time the

cause of action accrues. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a)

(Vernon Supp. 2010). ―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) (citing Murray v.

San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990)). The standard of

due diligence is based on the care that an ordinarily prudent person would have

used under the same or similar circumstances, and the duty to use due diligence

continues from the date suit is filed until the date the defendant is served. Id. at

216; James v. Gruma Corp., 129 S.W.3d 755, 759 (Tex. App.—Fort Worth 2004,

pet. denied).

      In the summary judgment context, once the defendant affirmatively pleads

and establishes that it was sued within limitations but served after limitations

expired, the burden shifts to the plaintiff to present summary judgment 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 (citing

Murray, 800 S.W.2d at 830).      Whether a plaintiff was diligent in serving the

defendant is generally a question of fact, but if the plaintiff offers no excuse for

the delay or if the lapse of time coupled with the plaintiff’s acts conclusively

negate diligence, lack of diligence will be found as a matter of law. James, 129

S.W.3d at 759–60. An unexplained delay in effecting service constitutes a lack

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of diligence as a matter of law. See Taylor v. Thompson, 4 S.W.3d 63, 65 (Tex.

App.—Houston [1st Dist.] 1999, pet. denied).

B. Analysis

      The statute of limitations for Hamilton’s claim against Mercer expired on

November 7, 2008.       See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a).

Hamilton filed suit within the limitations period but did not serve Mercer with

citation until September 25, 2009, more than nine months after limitations

expired. Mercer’s motion for summary judgment established these facts as a

matter of law. The burden therefore shifted to Hamilton to present summary

judgment evidence raising an issue of fact to explain the delay. Proulx, 235

S.W.3d at 216.

      Pointing to evidence that his attorneys ―had no knowledge of any problems

with service‖ and that Deputy Bivin’s illness and hospitalization led to the citation

being lost, Hamilton argues that he has offered ―a valid explanation for Mercer

not being served‖ because he had ―the right to believe that an officer delegated

the duty of serving process will insure that service will be made expeditiously.‖

To support his argument, Hamilton cites Allen v. Masterson, 49 S.W.2d 855, 856

(Tex. Civ. App.—Galveston 1932, writ ref’d).

      In Allen, the plaintiff filed suit two days before limitations expired, but the

citation was not issued for more than a month.         Id.   However, the plaintiff’s

attorney made inquiries within that month with the sheriff’s office concerning the

status of service, was initially (and erroneously) informed that a deputy had the

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citation out for service, was later informed that the sheriff’s office had not yet

received the citation, and then confirmed with the clerk’s office that the citation

had not been issued because no deposit had been paid.               Id.   The attorney

―immediately‖ paid the deposit, the clerk issued the citation the same day, and

the defendant was served the next day. Id. The Allen court stated, ―Where the

citation is not issued and served promptly, this does not affect the suit, unless the

plaintiff is responsible for the failure of the officers to do their duty, as in cases

where the plaintiff instructs the clerk not to issue, or instructs the sheriff, not to

serve.‖ Id.

      In the similar case of Boyattia v. Hinojoso, Boyattia filed suit one day

before limitations expired, and the clerk issued the citation the same day but did

not deliver the citation to the constable for almost two weeks. 18 S.W.3d 729,

732 (Tex. App.—Dallas 2000, pet. denied). After recognizing that ―parties have

limited control over the actions of a district or county clerk,‖ the court stated,

      [w]hen the clerk delays in issuing or delivering a citation, the
      passage of time alone is not itself controlling on the issue of a party’s
      diligence. Instead, in determining the issue of diligence, we look to
      whether a party’s actions manifest a ―bona fide intention‖ to have
      process served. A party who wholly ignores her duty to have the
      citation served on the defendant during a lengthy period of time the
      citation remains with the clerk does not manifest a bona fide
      intention to have process served.

Id. at 734 (internal citation omitted). The court then held that ―[t]wo weeks is not

an unreasonable amount of time to allow a clerk to perform his duties‖ of issuing




                                       7
or delivering citation and that there was no delay in service that entitled Hinojoso

to summary judgment. Id.

      The present case is readily distinguishable from Allen and Boyattia. While

the summary judgment evidence shows that Deputy Bivin misplaced the citation

due to his illness and hospitalization, that the sheriff’s office did not inform

Hamilton’s attorneys of any problems with service, that Hamilton’s attorneys did

not give any instructions that Mercer not be served, and that Hamilton’s attorneys

assumed that Mercer had been served, there is no summary judgment evidence

explaining why no inquiries were made of the clerk’s or sheriff’s offices about the

status of service before September 18, 2009.          Hamilton therefore failed to

present evidence creating a genuine issue of material fact concerning his

diligence in effectuating service on Mercer. See Ashley v. Hawkins, 293 S.W.3d

175, 180–81 (Tex. 2009) (holding unexplained eight month gap between service

attempts did not create a fact issue as to diligence); James, 129 S.W.3d at 760,

762 (affirming summary judgment based on unexplained six-month delay);

Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 590 (Tex. App.—

Corpus Christi 1994, no writ) (holding that ―mere reliance on a process server

and a delay of five months after the expiration of the statute of limitations do not,

as a matter of law, constitute due diligence in procuring issuance and service of

citation‖); Butler v. Ross, 836 S.W.2d 833, 836 (Tex. App.—Houston [1st Dist.]

1992, no writ) (holding that more than five months of inactivity and no service

efforts between failed attempts at the wrong address and proper service at the

                                     8
correct address constituted a lack of due diligence). We hold that the trial court

did not err by granting Mercer’s motion for summary judgment, and we overrule

Hamilton’s sole issue.

                                 V. Conclusion

      Having overruled Hamilton’s sole issue, we affirm the trial court’s

judgment.



                                                  ANNE GARDNER
                                                  JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DELIVERED: April 14, 2011




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