Opinion issued May 28, 2015




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-14-00636-CV
                            ———————————
                       JULIE DUPLECHAIN, Appellant
                                        V.
                   TORRIS DEMORN FLEMING, Appellee


             On Appeal from the County Civil Court at Law No. 1
                           Harris County, Texas
                       Trial Court Case No. 1024636




                          MEMORANDUM OPINION

      In this personal injury suit, Julie Duplechain appeals the trial court’s

summary judgment in favor of Torris Fleming on limitations grounds. Duplechain

contends that she raised a fact issue on the question of diligence of service and on
the question of Fleming’s attempts to evade service, and thus, the trial court should

have denied summary judgment. Finding no error, we affirm.

                                   Background

      In December 2010, Duplechain and Fleming were involved in a car accident.

In December 2012, shortly before the statute of limitations had passed, Duplechain

sued Fleming for negligence.        In September 2013, Duplechain moved for

substituted service, and Fleming was served in November. Fleming answered and

pled several affirmative defenses, including a limitations defense, alleging that

Duplechain had not been diligent in serving him with process.

      In March 2014, Fleming moved for partial summary judgment, requesting

dismissal of Duplechain’s case on limitations grounds. In support of his motion,

Fleming adduced evidence of a seven-and-a-half-month gap between Duplechain’s

attempts to serve Fleming with the suit and a nine-month gap between the initial

petition and Duplechain’s request for substituted service. Duplechain responded to

the motion with an affidavit from the process server and from her counsel. The

affidavits detail the service history, and her counsel avers that Fleming was

evading service when he “hung up the telephone on the process server.”

Duplechain’s counsel also avers that when the process server attempted to serve




                                         2
Fleming, his mother told the process server that “he [did] not live there anymore.” 1

But neither affidavit proffered an explanation for the gap between service attempts.

The trial court granted summary judgment. Duplechain moved for a new trial,

which was denied by operation of law.

                                      Discussion

      Standard of Review

      We review de novo the trial court’s ruling on a motion for summary

judgment. Samuel v. Fed. Home Loan Mortg. Corp., 434 S.W.3d 230, 233 (Tex.

App.—Houston [1st Dist.] 2014, no pet.) (citing Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009)). In a traditional

motion for summary judgment, like the one filed in this case, the movant must

establish that no genuine issue of material fact exists and that the movant is entitled

to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Little v. Tex. Dep’t of

Crim. Justice, 148 S.W.3d 374, 381 (Tex. 2004). When a defendant moves for

summary judgment, it must either (1) disprove at least one essential element of the

plaintiff’s cause of action or (2) plead and conclusively establish each essential

element of its affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.

1995). We indulge every reasonable inference in the nonmovant’s favor. Samuel,

434 S.W.3d at 233 (citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661

1
 In his reply to the summary judgment response, Fleming objected to counsel’s affidavit
on hearsay grounds but did not obtain a ruling.

                                           3
(Tex. 2005), and Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215

(Tex. 2003)).

      I.     Diligence in Effectuating Service of Process

      Applicable Law

      Personal injury claims are subject to a two-year statute of limitations. TEX.

CIV. PRAC. & REM. CODE ANN. § 16.003(a). If a plaintiff files her petition within

the limitations period but obtains service outside of the limitations period, service

on the defendant is valid only if the plaintiff exercised diligence in effectuating

service. Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009). When a plaintiff

exercises diligence in procuring service, the date of service relates back to the date

of filing. Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007). If a defendant

affirmatively pleads an affirmative defense of limitations and demonstrates that

service has occurred after the limitations deadline, the burden shifts to the plaintiff

to prove diligence. Ashley, 293 S.W.3d at 179; Proulx, 235 S.W.3d at 216. To

prove diligence, the plaintiff must present evidence of her efforts to serve the

defendant and “explain every lapse in effort or period of delay.” Proulx, 235

S.W.3d at 216.

      Whether a plaintiff has exercised diligence is determined by asking “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 the defendant was



                                          4
served.” Ashley, 293 S.W.3d at 179 (citing Proulx, 235 S.W.3d at 216). The

plaintiff’s diligence in obtaining service of process is generally a question of fact

and is determined “by examining the time it took to secure citation, service, or

both, and the type of effort or lack of effort the plaintiff expended in procuring

service.” Proulx, 235 S.W.3d at 216. But if one or more lapses between the

plaintiff’s attempts to serve the defendant are “unexplained or patently

unreasonable,” then the record demonstrates lack of diligence as a matter of law.

Id.

      Estoppel may bar a limitations defense when the defendant makes

representations that induce a plaintiff to delay filing suit within the limitations

period. Medina v. Tate, 438 S.W.3d 583, 591 (Tex. App.—Houston [1st Dist.]

2013, no pet.) (quoting Villages of Greenbriar v. Torres, 874 S.W.2d 259, 264

(Tex. App.—Houston [1st Dist.] 1994, writ denied). In the limitations context, the

essential elements of estoppel are “that the defendant, by his words or conduct,

induced the plaintiff to delay filing his cause of action beyond the time permitted

by the applicable statute of limitations, unmixed with any want of diligence on the

plaintiff’s part.” Id. (citing Leonard v. Eskew, 731 S.W.2d 124, 129 (Tex. App.—

Austin 1987, writ ref’d n.r.e.), and Palais Royal, Inc. v. Gunnels, 976 S.W.2d 837,

849 (Tex. App.—Houston [1st Dist.] 1998, pet. dism’d)).




                                         5
      Analysis

      Duplechain contends that an issue of fact exists as to her exercise of

diligence in attempting service. She observes that Fleming attempted to evade

service because he knew about the existence of the lawsuit from other sources.

Duplechain argues that Fleming’s evasive practices estop him from complaining

about the delay.

      In Ashley, the Texas Supreme Court held that, as a matter of law, the

plaintiff did not raise a fact issue as to her diligence when an eight-month lapse

existed between service efforts. 293 S.W.3d at 180–81. In holding that the

plaintiff’s internet search efforts were insufficient to extend the limitations period,

the court observed that a plaintiff has alternative service options available when a

defendant evades personal service. Id. at 181. In contrast, in Proulx, the Texas

Supreme Court held that a plaintiff’s thirty-seven attempts at serving a defendant

over a period of nine months demonstrated sufficient diligence to preclude

summary judgment. 235 S.W.3d at 217.

      The facts in this case are closer to those found in Ashley.            Although

Duplechain attempted to serve Fleming five times, she did not offer an explanation

for the lengthy gap in time between her third and fourth attempts. The appellate

record shows no service attempts from January 11, 2013 to August 31, 2013, a

period of more than seven months.             In her summary judgment responses,



                                          6
Duplechain did not claim that she made any effort toward serving Fleming from

January to August 2013, and she did not explain the delay in seeking substituted

service once she suspected that Fleming was evading service.

      Like the plaintiff in Ashley, Duplechain lapsed in her efforts to serve

Fleming. Our court has upheld a lack of due diligence as a matter of law when

examining shorter periods of unexplained inactivity. See Taylor v. Thompson, 4

S.W.3d 63, 65–66 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (four months

of unexplained inactivity); Butler v. Ross, 836 S.W.2d 833, 836 (Tex. App.—

Houston [1st Dist.] 1992, no writ) (five months of unexplained inactivity).

Because she did not meet her burden to “explain every lapse in effort or period of

delay” in serving Fleming, we hold that Duplechain did not raise a fact issue as to

her diligence in attempting to serve Fleming. See Ashley, 293 S.W.3d at 179;

Proulx, 235 S.W.3d at 216. Accordingly, the trial court did not err in granting

summary judgment. See Ashley, 293 S.W.3d at 179.

      Duplechain argues that Fleming’s attempts to evade service constitute

estoppel, but does not point to any conduct other than evading service.        See

Medina, 438 S.W.3d at 591. Duplechain’s counsel avers that, in December 2012,

Fleming’s mother told the process server that “[Fleming] does not live here

anymore.” But he does not connect that statement with a delay in filing suit or

with the seven-month gap where no service was attempted. Without any evidence



                                        7
of conduct that induced the delay in service, Duplechain fails to raise evidence of

estoppel to counter Fleming’s limitation defense. See id. A defendant’s actions

constituting estoppel must be “unmixed with any want of diligence on the

plaintiff’s part.” See id.

      II.     Public Policy

      Lastly, Duplechain urges this court to reverse as a matter of equity, because

it would be the fair and just result, and the trial court failed to consider the

defendant’s evasion of service when making its decision.         It is well-settled,

however, that a plaintiff bears the burden to prove diligence once a defendant

demonstrates that service has occurred after the limitations deadline. Ashley, 293

S.W.3d at 179; Proulx, 235 S.W.3d at 216. To prove diligence, the plaintiff must

present evidence of her efforts to serve the defendant and “explain every lapse in

effort or period of delay.” Proulx, 235 S.W.3d at 216. Because Texas Supreme

Court precedent settles the outcome of the case, Duplechain’s policy arguments are

unavailing. See Ashley, 293 S.W.3d at 179; Proulx, 235 S.W.3d at 216; Ginsburg

v. Chernoff/Silver & Assocs., Inc., 137 S.W.3d 231, 237 (Tex. App.—Houston [1st

Dist.] 2004, no pet.) (noting that intermediate appellate courts are bound by

applicable holdings of higher courts “regardless of public policy concerns”).




                                         8
                                   Conclusion

       We hold that the trial court properly ruled that the defendant demonstrated

his limitations defense as a matter of law. We therefore affirm the judgment of the

trial court.




                                            Jane Bland
                                            Justice

Panel consists of Justices Jennings, Bland, and Brown.




                                        9
