Opinion issued April 30, 2020




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-19-00646-CV
                           ———————————
   CEDRIQUEZ RICHARDSON AND TONY RICHARDSON, Appellants
                                       V.
                          KIRSTI CLACK, Appellee


                   On Appeal from the 157th District Court
                            Harris County, Texas
                      Trial Court Case No. 2017-54923


                         MEMORANDUM OPINION

      Cedriquez and Tony Richardson’s personal-injury suit against Kristi Clack

was dismissed after the trial court granted Clack’s motion for summary judgment

on limitations grounds. The Richardsons appeal the judgment of dismissal, arguing
that they used diligence in serving Clack or, at a minimum, raised a fact question

on the issue to prevent summary judgment against them.

      We affirm.

                        Efforts to Obtain Service on Clack

      Clack and the Richardsons were involved in a motor accident on October 1,

2016, which set October 1, 2018 as the date the two-year limitations period would

expire. See TEX. CIV. PRAC. & REM. CODE § 16.003(a) (setting a two-year

limitations period for personal injury actions).

      The Richardsons filed suit against Clack on August 18, 2017, leaving more

than a year of the limitations period for service of process on Clack. Beginning in

October 2017, the Richardsons’ attorneys checked in with the process server about

every six to eight weeks for an update on service. Each time, the process server

“indicated he did not have a good address for [Clack and] . . . was searching for

[her].” This pattern continued until one week before the two-year limitations was

set to expire. In September 2018, the Richardsons’ attorneys asked the process

server about substituted service and, when told that the process server still did not

have a “good address” for Clack, the Richardsons’ attorneys placed the file on a

“due diligence list.” This resulted in weekly follow-up calls to the process server,

who repeatedly advised that he still “was checking for new address” for service.




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      The law office’s weekly, post-limitations calls to the process server

continued for six months, until the end of March 2019, with no changes in requests

or responses from either end of the call. Then, after six months of the process

server stating weekly that he was still checking for a new address, the process

server stopped answering the law office’s calls altogether.

      After three weeks of no returned phone calls, the Richardsons’ attorneys

requested that new citation be issued to a different process server. The new process

server picked up the new citation on April 26, 2019 and successfully accomplished

service in just four days.

      Clack was served at her work address on April 30. She filed her answer on

May 28 and immediately moved for summary judgment on limitations grounds.

      The Richardsons responded with a timeline of communication between the

law office and the original process server with accompanying affidavits. Each

affidavit provided a factual recitation of the follow-up calls to the first process

server, the switch to a new process server in April 2019, and the successful service

on Clack that same month.

      The Richardsons argued that they demonstrated due diligence in attempting

to obtain service or, at a minimum, raised a fact issue on diligence to avoid

summary-judgment dismissal of their suit. The trial court granted Clack’s




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summary-judgment motion and dismissed the Richardsons’ suit. The Richardsons

appealed.

                Motion for Summary Judgment on Limitations

      In their sole issue, the Richardsons argue the trial court erred in granting

summary judgment on limitations grounds.

A.    Standard of review

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

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848

(Tex. 2009). A party moving for traditional summary judgment has the burden to

prove there is no genuine issue of material fact and the movant is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c); SeaBright Ins. Co. v. Lopez,

465 S.W.3d 637, 641 (Tex. 2015). When a defendant moves for summary

judgment, the defendant must either disprove at least one essential element of the

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

element of the defendant-movant’s affirmative defense. Cathey v. Booth, 900

S.W.2d 339, 341 (Tex. 1995).

      To determine whether there is a fact issue in a summary-judgment motion,

we review the evidence in the light most favorable to the nonmovant, crediting

favorable evidence if reasonable jurors could and disregarding contrary evidence

unless reasonable jurors could not. See Fielding, 289 S.W.3d at 848 (citing City of


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Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). A matter is conclusively

established if reasonable people could not differ as to the conclusion to be drawn

from the evidence. See City of Keller, 168 S.W.3d at 823.

B.    Applicable law on due diligence in obtaining service

      “Summary judgment on a limitations affirmative defense involves shifting

burdens of proof.” Perez v. Efurd, No. 01–15–00963–CV, 2016 WL 5787242, at

*2 (Tex. App.—Houston [1st Dist.] Oct. 4, 2016, no pet.) (mem. op.) (citing

Proulx v. Wells, 235 S.W.3d 213, 215–16 (Tex. 2007)). When a plaintiff files her

petition within the limitations period but obtains service on the defendant outside

of the limitations period, the service is valid only if the plaintiff exercised diligence

in obtaining service. Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009); see

Proulx, 235 S.W.3d at 215 (providing that “a timely filed suit will not interrupt the

running of limitations unless the plaintiff exercises due diligence in the issuance

and service of citation”). If a plaintiff diligently obtains service after the statute of

limitations expires, then the date of service relates back to the date the suit was

filed. Proulx, 235 S.W.3d at 215. If a defendant affirmatively pleads the defense of

limitations, though, and shows that service was obtained after the limitation’s

deadline, then the burden shifts to the plaintiff to prove diligence. Ashley, 293

S.W.3d at 179; Proulx, 235 S.W.3d at 215.




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      The diligence inquiry asks “whether the plaintiff acted as an ordinarily

prudent person would have acted under the same or similar circumstances” and

continued to be “diligent up until the time the defendant was served.” Proulx, 235

S.W.3d at 216. It is the plaintiff’s burden to present evidence regarding her efforts

to serve the defendant and to “explain every lapse in effort or period of delay.” Id.

The question of the plaintiff’s diligence is generally one of fact to be “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.” Id.

      If “one or more lapses between service efforts are unexplained or patently

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

Id. If a lack of diligence is established as a matter of law, there is no error in

granting summary judgment on limitations grounds. Ventura v. Vasquez, No. 01-

19-00240-CV, 2019 WL 6904545, at *6 (Tex. App.—Houston [1st Dist.] Dec. 19,

2019, no pet.) (mem. op.).

C.    Lack of diligence as a matter of law

      The Richardsons alleged that the car accident occurred on October 1, 2016,

2016, setting October 1, 2018 as the date the two-year statute of limitations

expired. See TEX. CIV. PRAC. & REM. CODE § 16.003(a). In her summary-judgment

motion, Clack proved that she was not served until April 30, 2019, about six

months after limitations ran. Thus, Clack met her initial burden of establishing that


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service was outside the limitations period, and the burden shifted to the

Richardsons to show that they exercised diligence in attempting to serve Clack

between the filing of their lawsuit and the date they achieved service. See Ashley,

293 S.W.3d at 179; Proulx, 235 S.W.3d at 216. To satisfy their burden, the

Richardsons had 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.

      The Richardsons’ summary-judgment evidence shows their attorneys

requested citation and hired a process server in August 2017. The attorneys

followed up with the process server every six to eight weeks for more than a year

without any changes in the instructions to the process server or any recorded

efforts to try new tactics to achieve service.

      As the limitations period expired, the Richardsons’ attorneys increased the

frequency of the follow-up calls but nothing else changed. The process server did

not provide a different response to the calls, and the attorneys did not change their

tactics for achieving service. This continued for six more months.

      It was only when the process server stopped responding altogether that the

attorneys altered their approach to obtaining service. When the process server

stopped taking calls from the law firm in late March 2019—which was about 19

months after suit was filed and about 5 months after the limitations period


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expired—the firm’s attorneys changed their approach. They hired a new process

server in mid-April 2019. Within a two-week period, the attorneys hired a new

process server, requested a new citation, and successfully obtained service on

Clack.

      In attempting to show diligence, the Richardsons focus on their attorneys’

persistence in contacting the process server at scheduled intervals. But that focus is

misplaced. It is “the responsibility of the person requesting service, and not the

process server, to see that the service is properly accomplished.” Ventura, 2019

WL 6904545, at *4; see Roberts v. Padre Island Brewing Co., Inc., 28 S.W.3d 618,

621 (Tex. App.—Corpus Christi 2000, pet. denied). Reliance on the process server

does not establish due diligence in attempting service of process. Ventura, 2019

WL 6904545, at *5; Taylor v. Thompson, 4 S.W.3d 63, 65 (Tex. App.—Houston

[1st Dist.] 1999, pet. denied) (stating that “any misplaced reliance on the process

server does not constitute due diligence.”).

      The record does not show proactive steps by the Richardsons through their

attorneys to address the lack of service on Clack during the 19 months that the suit

was on file. Nor does it show any effort to switch to an alternate means of service,

a different process server, or a research-based approach to figuring out where

Clack might be found. See Franklin v. Longview Med. Ctr., No. 12-18-00198-CV,

2019 WL 2459020, at *6 (Tex. App.—Tyler June 5, 2019, no pet.) (mem. op.)


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(holding plaintiff failed to continually exercise due diligence in attempting to serve

defendant when evidence showed that, during two separate periods of inactivity,

plaintiff relied on process server to accomplish service without proactively

ensuring service would be achieved).

      According to the record, it was only when the initial process server failed to

respond to the law firm’s scheduled follow-up calls that the Richardsons’ attorneys

considered a new approach. Once they tried something else, Clack was served

within days.

      We conclude that, after Clack met her summary-judgment burden, the

Richardsons did not meet theirs. Their summary-judgment evidence did not raise a

fact issue regarding whether they exercised due diligence during the 19 months

Clack went without being served, including five months after the limitations period

expired. Instead, the evidence conclusively established that the Richardsons did not

exercise due diligence in effecting service. See Ventura, 2019 WL 6904545, at *6;

Carter v. MacFayden, 93 S.W.3d 307, 315 (Tex. App.—Houston [14th Dist.]

2002, pet. denied) (holding that “a flurry of ineffective activity does not constitute

due diligence if easily available and more effective alternatives are ignored”); see

also Davis v. Roberts, No. 01-10-00328-CV, 2011 WL 743198, at *4 (Tex. App.—

Houston [1st Dist.] Mar. 3, 2011, no pet.) (mem. op.) (noting party offered no

explanation how phone calls to UPS store, where that party had already sent


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“fruitless citation,” could have helped locate other party). We hold the trial court

properly granted summary judgment in Clack’s favor because the evidence

established a lack of diligence as a matter of law.

      We overrule the Richardsons’ sole issue.

                                     Conclusion

      We affirm.




                                               Sarah Beth Landau
                                               Justice

Panel consists of Justices Landau, Hightower, and Countiss.




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