                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                               ________________

                              NO. 09-15-00228-CV
                               ________________

                          KEVIN ROACH, Appellant

                                        V.

    THE MEDICAL CENTER OF SOUTHEAST TEXAS, L.P., Appellee
__________________________________________________________________

                On Appeal from the 172nd District Court
                       Jefferson County, Texas
                      Trial Cause No. E-192,762
__________________________________________________________________

                          MEMORANDUM OPINION

      This is an appeal from an order granting summary judgment. In his sole

issue, appellant Kevin Roach alleges that the trial court erred by granting summary

judgment based upon the statute of limitations because, during the twenty-seven

days after the statute of limitations expired, Roach acted as an ordinary prudent

person in securing service of process upon appellee, The Medical Center of

Southeast Texas, L.P. (“MCST”). We reverse and remand the trial court’s

summary judgment order.

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                                BACKGROUND

      On August 1, 2012, Roach filed an original petition against MCST. In his

petition, Roach alleged that he sustained personal injuries on August 2, 2010, as a

result of a slip and fall accident on MCST’s premises. Roach contended that

MCST’s negligence caused his injuries. In his petition, Roach requested that

citation “be issued and be served upon [MCST] in the form and manner prescribed

by law[.]” The record reflects that the District Clerk prepared a citation on the

same date, but the officer’s return was not completed until August 29, 2012. On

August 31, 2012, MCST filed its original answer, in which it asserted a general

denial and specifically pleaded that Roach’s claims are barred by the applicable

statute of limitations.

      MCST filed a traditional motion for summary judgment, in which it asserted

that summary judgment is proper because Roach had not demonstrated due

diligence in effectuating service of process within the applicable statute of

limitations. MCST attached as exhibits to its motion (1) Roach’s counsel’s request

in correspondence with the District Clerk asking for citation to be prepared for

service by a private process server and (2) the transmittal from a private process




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server, showing that MCST was not served until August 29, 2012. 1 In his response

to MCST’s motion, Roach asserted that a fact issue exists whether he made

diligent efforts to procure citation and service.

                                     ANALYSIS

      We review the trial court’s summary judgment order de novo. See Provident

Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). With respect

to a traditional motion for summary judgment, the movant must establish that there

is no genuine issue of material fact and it is entitled to judgment as a matter of law.

Tex. R. Civ. P. 166a(c); Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640,

644 (Tex. 1995). If the moving party produces evidence entitling it to summary

judgment, the burden shifts to the nonmovant to present evidence that raises a

material fact issue. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). In

determining whether there is a disputed material fact issue precluding summary

      1
        We note that MCST did not include an affidavit authenticating the three
exhibits attached to its motion for summary judgment. Roach did not object to the
lack of authentication in his response to the motion for summary judgment or at the
summary judgment hearing. See Tex. R. Civ. P. 166a(f); Kroemer v. Hartsfield,
No. 09-08-00462-CV, 2009 WL 4343266, at *3 (Tex. App.—Beaumont Dec. 3,
2009, pet. denied) (mem. op.) (citing Tex. R. Civ. P. 166a(f) and concluding that
an objection that summary judgment evidence is not properly authenticated is
waived if raised for the first time in a motion for new trial.). Additionally, in his
response to the motion for summary judgment, Roach stated that he “attaches and
incorporates[,]” among other things, “any of Defendant’s summary judgment
evidence.”
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judgment, evidence favorable to the nonmovant will be taken as true. Nixon v. Mr.

Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). We review the summary

judgment record “in the light most favorable to the nonmovant, indulging every

reasonable inference and resolving any doubts against the motion.” City of Keller

v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).

      The statute of limitations is an affirmative defense. Tex. R. Civ. P. 94. A

defendant that moves for summary judgment on the affirmative defense of statute

of limitations must conclusively prove when the cause of action accrued, and if the

plaintiff pleaded a tolling provision or exception, the defendant must conclusively

negate its application as a matter of law. Velsicol Chem. Corp. v. Winograd, 956

S.W.2d 529, 530 (Tex. 1997); see also Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d

217, 224 (Tex. 1999).

      It is well settled that the mere filing of a lawsuit does not interrupt the

running of the statute of limitations, and a plaintiff must also exercise due

diligence in the issuance and service of citation. Proulx v. Wells, 235 S.W.3d 213,

215-16 (Tex. 2007); Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830

(Tex. 1990); Witt v. Heaton, 10 S.W.3d 435, 437-38 (Tex. App.—Beaumont 2000,

no pet.). “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.

                                          4
Unexplained delays constitute a lack of due diligence as a matter of law. Witt, 10

S.W.3d at 438. When a defendant has affirmatively pleaded the defense of

limitations, and when failure to timely serve the defendant has been shown, the

burden shifts to the plaintiff to explain the delay. Murray, 800 S.W.2d at 830.

However, “a plaintiff’s mere pleading of diligence in response to a summary-

judgment motion shifts the burden to the defendant to disprove diligence as a

matter of law.” Proulx, 235 S.W.3d at 215. If a plaintiff offers a valid explanation

for the delay, the reasonableness of any delay in procuring service of citation is a

question of fact. Zimmerman v. Massoni, 32 S.W.3d 254, 256 (Tex. App.—Austin

2000, pet. denied) (citing Witt, 10 S.W.3d at 437-38).

      As discussed above, Roach asserted a personal injury claim against MCST,

and he alleged that his injury occurred on August 2, 2010. A two-year statute of

limitations applies to personal injury actions. Tex. Civ. Prac. & Rem. Code Ann.

16.003(a) (West Supp. 2015). Accordingly, the last day on which Roach could

have filed suit was August 2, 2012. See id. MCST’s summary judgment evidence

demonstrated that MCST was not served with citation until August 29, 2012, as did

the officer’s return attached to Roach’s response. Roach attached the affidavit of

his counsel to his response to the summary judgment motion. In the affidavit,

counsel averred as follows:

                                         5
      On August 1, 2012, suit was filed against Defendant, The Medical
      Center of Southeast Texas, L.P. The citation was issued for service on
      August 1, 2012. On August 9, 2012, Plaintiff received the citation via
      U.S. mail. On August 14, 2012, my paralegal requested a check in the
      amount of $75.00 for payment to [the] Constable . . . for the
      applicable service of process fee. On August 24, 201[2] the check was
      issued and the citation was forwarded to the Constable for service of
      process. The Constable stamped the citation received on August 27,
      2012[,] and certified in[-]person service on August 29, 2012.

Roach contended that his counsel’s affidavit created a fact issue regarding whether

Roach acted with due diligence in securing service of citation. We agree.

      Accordingly, the trial court erred in granting MCST’s motion for summary

judgment. We sustain Roach’s sole issue and the judgment of the trial court is

reversed and remanded.

       REVERSED AND REMANDED.



                                             ______________________________
                                                    STEVE McKEITHEN
                                                       Chief Justice

Submitted on February 25, 2016
Opinion Delivered April 14, 2016

Before McKeithen, C.J., Horton and Johnson, JJ.




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