                                     NO. 12-15-00029-CV

                             IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

TONYA ALLEN DDS, P.A.,                                §     APPEAL FROM THE 114TH
APPELLANT

V.                                                          JUDICIAL DISTRICT COURT
                                                      §
SMITH COUNTY APPRAISAL
DISTRICT,                                                   SMITH COUNTY, TEXAS
APPELLEE                                              §

                                     MEMORANDUM OPINION
       This is a property tax appraisal dispute. Tonya Allen appeals from a summary judgment
granted the Smith County Appraisal District based upon the District’s plea that Allen’s suit was
barred by limitations. In one issue, Allen contends the trial court erred in finding that she had
failed to exercise reasonable diligence in obtaining service of citation on the District.
Alternatively, she contends that summary judgment was improper because a fact question existed
as to her exercise of diligence in effecting service. We affirm.


                                              BACKGROUND
       On November 26, 2013, Allen moved to correct the appraised value of her property in
Lindale, Texas. The Smith County Appraisal Review Board issued an adverse determination on
March 12, 2014, and Allen received the Review Board’s order on March 14, 2014. Allen filed
her appeal from the Review Board’s decision on April 28, 2014, well before the sixty day limit
provided for filing such an appeal.1 However, Allen did not request or pay the fee for service of
citation until August 6, 2014. The Appraisal District was served on August 11, 2014. The
limitation period expired on May 13, 2014. The District answered on August 13, 2014, and on


       1
           See TEX. TAX CODE ANN. § 42.21(a) (West 2015).
November 20, 2014, filed its first amended answer asserting Allen’s suit was barred by
limitations. Four days later, the Appraisal District asserted limitations in a motion for summary
judgment, and the trial court granted the motion.
       Allen contends the trial court erred in granting summary judgment because the summary
judgment evidence demonstrates a fact issue exists regarding whether she exercised due
diligence in securing service on the District.
Standard of Review
       An appellate court reviews a summary judgment de novo. Mann Frankfort Stein &
Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). The party moving for
summary judgment bears the burden of showing no genuine issue of material fact exists and it is
entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Amedisys Inc. v. Kingwood
Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014). Once the movant has established
its right to summary judgment, the nonmovant has the burden to respond to the motion and
present to the trial court any issues that would preclude summary judgment.          Amedisys, 437
S.W.3d at 511. The appellate court reviews the evidence in the light most favorable to the party
against whom the summary judgment was rendered, crediting evidence favorable to that party if
reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.
Id.; City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
Applicable Law
       Mere filing of suit will not interrupt the running of limitations unless due diligence is
exercised in the issuance and service of citation. Murray v. San Jacinto Agency, Inc., 800
S.W.2d 826, 830 (Tex. 1990). If service is diligently effected after limitations has expired, the
date of service will relate back to the date of filing. Proulx v. Wells, 235 S.W.3d 213, 215 (Tex.
2007). The duty to exercise due diligence continues until service of process is achieved. Broom
v. MacMaster, 992 S.W.2d 659, 664 (Tex. App.—Dallas 1999, no pet.).
       When a defendant has affirmatively pleaded the defense of limitations 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. “Thus, it is the plaintiff’s 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.” Id. “[I]f the plaintiff’s explanation for the delay raises a material fact issue




                                                 2
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.” Id.
        “In assessing diligence, the relevant inquiry is 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 served.”                Id. The two most important considerations in
determining diligence are (1) the length of delay in service, and (2) the effort or lack thereof
expended by the plaintiff in procuring service. Id.; Webster v. Thomas, 5 S.W.3d 287, 289-90
(Tex. App.—Houston [14th Dist.] 1999, no pet.).
Discussion
        In her response to the Appraisal District’s summary judgment motion, Allen included the
affidavit of her counsel, who imputes the delay in service to confusion accompanying recently
required electronic filing of court documents. However, he also denies any difficulty in timely
procuring service in any other suit since the adoption of electronic filing. The first half of
counsel’s affidavit relates to problems and procedures with electronic filing generally. In that
part of his affidavit pertinent to the instant case, Allen’s counsel states, as follows:


                  “In this case, the petition was timely filed within the sixty (60) day time limit as provided
        by the Texas Tax Code. When the petition was filed, the “e-file” box and the “service” box were
        both checked in the user interface. I have personal knowledge of this fact, as I observed it as my
        assistant filed the pleading. When tax suits are filed, it is common, in my experience, for the
        citations and service to often take some weeks to be completed, and it is also common for the
        lawyers representing taxing jurisdictions to ask for extensions of answer dates and other pleadings,
        due to time and schedule constraints, and we often reciprocate in courtesy if [sic] this type.”

                  “In this matter, which was filed just prior to May, 2014, we performed a routine diligence
        review of the file in July, 2014, and found no answer. My assistant then contacted the clerk of the
        Court, who informed her to call back when a particular clerk would be back at work. When she
        did so, that clerk informed her that no service has been completed, and we needed to send a letter
        requesting same. That letter was sent at the beginning of August, just over ninety (90) days after
        the petition was filed, and service was effectuated soon afterward. At no time, [sic] did we have
        any conscious indifference or lack of standard diligence in this matter, as we had relied upon the
        electronic filing as we have in many other suits in 2014. This was the only such suit where service
        was not effectuated by electronic filing simultaneous with filing of the petition.”


Allen indirectly attempts to assign at least partial responsibility to the Smith County District
Clerk for her failure to timely effect service. In her response to the District’s motion for
summary judgment, Allen stated “[t]he filing was noted as ‘accepted’ by the Smith County
District Clerk, and no communication of any kind from the Smith County District Clerk
informed the filing attorney or his office that any other action was required to effectuate service


                                                          3
of process. . . .” However, it is the plaintiff, not the process server or the district clerk, who is
responsible for insuring that service is properly accomplished. TEX. R. CIV. P. 99a; Boyattia v.
Hinojosa, 18 S.W.3d 729, 734 (Tex. App.—Dallas 2000, pet. denied).
         Allen filed her petition on April 28, 2014. The sixty day limitation period expired
May 13, 2104. After counsel’s diligence review in July, further delay for an unspecified period
occurred while counsel attempted to verify the District’s failure to answer her suit.                              Due
diligence required a review to verify successful service before the running of limitations, not
sixty days later. Unmentioned in counsel’s affidavit is Allen’s failure to properly request service
or pay the fee therefor. When, after a three month delay in requesting service after filing suit,
Allen requested service and paid the required fees, the District was served within five days.
         Allen’s explanation of why she did nothing for more than ninety days after filing her
petition and for nearly three months after the expiration of limitations may demonstrate a “lack
of conscience indifference” but it falls far short of demonstrating due diligence. And due
diligence is the standard by which Allen’s efforts must be evaluated.                          When a defendant
complains of a lack of due diligence in service of process, the plaintiff must explain what steps
she took to obtain service, not explain why she did nothing. Slagle v. Prickett, 345 S.W.3d 693,
698 (Tex. App.—El Paso 2011, no pet.).                   Allen’s explanation does not show diligence in
attempting to effectuate service, and it fails to raise a fact issue concerning diligence. The record
conclusively establishes that Allen’s suit was barred by limitations, and the trial court did not err
in granting the District’s motion for summary judgment.                      Allen’s sole issue is overruled.
Because we have overruled Allen’s sole issue, we do not address her alternative issue. See TEX.
R. APP. P. 47.1.


                                                   DISPOSITION

         Having overruled Allen’s sole issue, the judgment of the trial court is affirmed.

                                                                                BILL BASS
                                                                                 Justice

Opinion delivered September 2, 2015.
Panel consisted of Worthen, C.J., Neeley, J., Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.

                                                    (PUBLISH)



                                                          4
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         SEPTEMBER 2, 2015


                                          NO. 12-15-00029-CV


                                TONYA ALLEN DDS, P.A.,
                                      Appellant
                                         V.
                          SMITH COUNTY APPRAISAL DISTRICT,
                                       Appellee


                                Appeal from the 114th District Court
                          of Smith County, Texas (Tr.Ct.No. 14-1121-B)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the appellant, TONYA ALLEN DDS, P.A., for which execution may issue, and that this
decision be certified to the court below for observance.
                    Bill Bass, Justice.
                    Panel consisted of Worthen, C.J., Neeley, J. and Bass, Retired J.,
                    Twelfth Court of Appeals, sitting by assignment.
