      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-07-00511-CV



                 Kathy S. Franklin, as Surviving Parent of T. S. T., Appellant

                                                   v.

                                  Sydnee Nicole Bullock, Appellee


       FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
          NO. 05-2212, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Kathy S. Franklin appeals a final summary judgment that she take nothing on her

claims of negligence against Sydnee Nicole Bullock under the wrongful death and survival statutes.

Bullock’s summary-judgment motion asserted the ground that Franklin’s claims were barred by

limitations because Franklin, although filing suit within the applicable limitations period, failed to

serve Bullock within that period or exercise diligence in effecting service. In three issues on appeal,

Franklin contends that Bullock’s own summary-judgment evidence presented a fact issue regarding

her diligence in obtaining service, that the district court abused its discretion in excluding Franklin’s

summary-judgment proof, and that due process or “the interests of justice” requires that Franklin

be permitted to introduce additional evidence because the district court’s application of her

summary-judgment burden amounted to a new legal rule. Because we agree that Bullock’s

summary-judgment evidence presented a fact issue regarding Franklin’s diligence in obtaining
service, we conclude that the district court erred in granting summary judgment, and need not reach

Franklin’s other contentions.

                We review the district court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott,

128 S.W.3d 211, 215 (Tex. 2003). Summary judgment is proper when there are no disputed issues

of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c).

When reviewing a summary judgment, we take as true all evidence favorable to the non-movant,

and we indulge every reasonable inference and resolve any doubts in the non-movant’s favor.

Valence Operating Co., 164 S.W.3d at 661; Knott, 128 S.W.3d at 215.

                A defendant moving for summary judgment on the affirmative defense of limitations

has the burden to conclusively establish that defense. Diversicare Gen. Partner, Inc. v. Rubio,

185 S.W.3d 842, 846 (Tex. 2008). If the movant establishes that the statute of limitations bars the

action, the nonmovant must then adduce summary judgment proof raising a fact issue in avoidance

of the statute of limitations. Id.

                In this case, Franklin alleged in her petition that Bullock, while driving, hit and killed

Franklin’s minor son, T.S.T., while he was walking on the shoulder of Ranch Road 12. Franklin

pled that the incident occurred “[o]n or about the evening of January 2, 2004.” There is no dispute

that Franklin was required to bring her suit within two years of that date, January 2, 2006. See

Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (West Supp. 2007). It is also undisputed that

Franklin filed her suit on December 30, 2005—three days before limitations ran—and did not effect

service on Bullock until April 8, 2006—ninety-six days after the end of the limitations period.



                                                    2
As Franklin acknowledges, her timely filed suit would be barred by limitations unless she

exercised diligence in effecting service, in which case the date of service would relate back

to the date of filing.      Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007) (per curiam)

(citing Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990); Rigo Mfg. Co.

v. Thomas, 458 S.W.2d 180, 182 (Tex. 1970)).

                Once a defendant has affirmatively pled the limitations defense 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 (quoting Murray, 800 S.W.2d at 830). When the burden has been shifted

in this manner, “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. “Generally, the

question of the plaintiff’s diligence in effecting service is one 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.” Id. 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. However, the plaintiff may fail to raise a

fact issue if the evidence demonstrates a lack of diligence as a matter of law, “as when one

or more lapses between service are unexplained or patently unreasonable.”                  Id.; see also

Holt v. D’Hanis State Bank, 993 S.W.2d 237, 241 (Tex. App.—San Antonio 1999, no pet.)

(plaintiff’s failure to file response to summary judgment constituted failure to explain delay, and

“[a]n unexplained delay constitutes a lack of due diligence as a matter of law”). Also, the

plaintiff’s explanation may be “legally improper to raise the diligence issue.” Proulx, 235 S.W.3d



                                                    3
at 216 (citing cases involving oral agreements to delay service and plaintiff’s desire to obtain remand

from federal court). But if the plaintiff’s explanation for the delay raises a material fact issue

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.

                Bullock filed her motion for summary judgment on April 12, 2006, and a hearing

was set for May 9. She attached evidence that included a file-stamped copy of Franklin’s

December 30, 2005, original petition and the signed officer’s return, dated April 8, 2006.1 Franklin

does not dispute that Bullock met her burden of pleading limitations and showing that service had

been effected after limitations expired. See id. Consequently, the burden shifted to Franklin

“to explain the delay.” Id.

                Franklin filed a response to Bullock’s motion in which she relied largely on Bullock’s

own summary-judgment evidence.2 In addition to Franklin’s petition and the officer’s signed return,

       1
           These documents are also contained in the clerk’s record.
       2
          Franklin’s response to Bullock’s summary-judgment motion relied on Bullock’s evidence,
as well as an affidavit from her counsel that the district court later excluded. Bullock does not
contend that Franklin failed to serve her response by the seven-day deadline of May 2; in fact,
Bullock prepared and served a reply to Franklin’s response on May 3. The district court’s judgment
also reflects that it considered, among other filings, “Plaintiff’s Response to Defendant’s Motion for
Summary Judgment.” On appeal, however, Bullock emphasizes that the sole copy of Franklin’s
response in the clerk’s record bears a file stamp of October 7, 2007, which was long after the
summary-judgment deadlines and corresponds to the time when Franklin was arranging for the
clerk’s record to be prepared for appeal. Franklin acknowledges that, for some reason, no copy of
her summary-judgment response had previously appeared in the clerk’s record. However, because
the record reflects that Franklin’s response was considered, our inquiry ends there. See Neimes
v. Kien Chung Ta, 985 S.W.2d 132, 138-39 (Tex. App.—San Antonio 1998, no pet.). In any event,
even if Franklin is deemed not to have timely filed her summary-judgment response, it is ultimately
irrelevant because, as we explain below, Bullock’s own summary-judgment evidence demonstrates
that she is not entitled to summary judgment. See City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671, 678 (Tex. 1979) (summary judgments must stand or fall on their own merits and,

                                                  4
Bullock’s summary-judgment evidence included an affidavit of attempted process service by

E. W. Fletcher, the private process server who had assisted Franklin and her counsel; the cover letter

from Franklin’s counsel transmitting her petition to the Hays County District Clerk; a motion for

substituted service signed by Franklin’s counsel; an order of the district court authorizing substituted

service; and Fletcher’s signed and notarized verification of service of process. Drawing reasonable

inferences in Franklin’s favor, see Valence Operating Co., 164 S.W.3d at 661, this evidence reflects

the following sequence of events:


        December 30, 2005 (Fri.)        Franklin files her original petition. The transmittal
                                        letter from Franklin’s counsel’s law office in
                                        Fort Worth requested the Hays County District Clerk
                                        to “issue the citation and return it to my officer in the
                                        enclosed envelope” as “our office will serve the[]
                                        petition.” On the same day, the district clerk issues
                                        citation.

        By January 25, 2006             The district clerk returns the citation and petition to
                                        Franklin’s counsel in Fort Worth via “the enclosed
                                        envelope” referenced in the cover letter. Private
                                        process server E.W. Fletcher, whose business address
                                        is in Kyle, Hays County, is contacted and the citation
                                        and petition are sent to him.3




even if no response is filed, whether the motion establishes the movant’s entitlement to judgment
as a matter of law can be challenged on appeal); Webb v. Robins, No. 03-07-00686-CV, 2008 Tex.
App. LEXIS 5342, at *6-8 (Tex. App.—Austin 2008, no pet. h.) (mem. op.) (citing City of Houston
v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Perry v. Houston Indep. Sch. Dist.,
902 S.W.2d 544, 547-48 (Tex. App.—Houston [1st Dist.] 1995, writ dism’d w.o.j.)).
        3
          See Tate v. Beal, 119 S.W.3d 378, 381 (Tex. App.—Fort Worth 2003, pet. denied)
(drawing inferences that out-of-town attorney’s office had contacted process server and sent citation
to him from evidence that process server received the citation).

                                                   5
       January 25, 2006 (Wed.)          Fletcher receives the citation and petition at 1:30 p.m.
                                        He is requested to personally serve Bullock at
                                        307 Mesa Drive in Wimberley, Hays County.

       Jan. 28 (Sat.)                   At 12:05 p.m., Fletcher makes first attempt to serve
                                        Bullock at 307 Mesa. Fletcher knocked on the door,
                                        but no one answered.

       Jan. 31 (Tues.)                  At 1:35 p.m., Fletcher makes second attempt, and
                                        “again found no one at home.”

       Feb. 2 (Thurs.)                  At 4:30 p.m., Fletcher makes third attempt “also with
                                        no contact.”

       Feb. 7 (Tues.)                   At 2:10 p.m., Fletcher makes fourth attempt at
                                        307 Mesa.

       Before Feb.18                    Upon his fourth unsuccessful attempt at 307 Mesa,
                                        Fletcher, “[s]till finding no one at the residence and
                                        noticing that the gravel driveway did not seem to get
                                        much use, . . . contacted the real estate company
                                        whose sign was standing at the curb in front of the
                                        home.” Fletcher “was then informed that the
                                        residence was not occupied at this time.”

                                        Fletcher “next submitted a Forwarding Address
                                        Request from the Wimberley Post Office and
                                        found they had no forwarding address on file for
                                        Sydnee Bullock.”

                                        From here, “[u]pon presenting this information to the
                                        party requesting my help in serving this document,
                                        [Fletcher] was given a new address in the Lakeway
                                        area west of Austin,”4 that Franklin’s office had
                                        researched and ascertained.5




       4
           Fletcher stated the address in his affidavit.
       5
           See Tate, 119 S.W.3d at 381 (inferring that attorney had researched and ascertained
alternate address from evidence that attorney gave address to process server).

                                                    6
Feb. 18 (Sat.)       Fletcher makes first attempt to serve Bullock at the
                     Lakeway address. He “found the home obviously
                     lived in, but no one home.”

Feb. 24 (Fri.)       Fletcher makes his second attempt at the Lakeway
                     address. He “met a couple, who, upon my request
                     to speak with Sydnee, identified themselves as
                     Sydnee Bullock’s parents.” The parents “state[d] that
                     this residence is Sydnee Bullock’s permanent
                     residence, but advised that during the school year
                     Sydnee is attending class in another part of Texas.”
                     Fletcher “was not given a location to contact Sydnee
                     Bullock directly by the parents,” although the parents
                     indicated “that they knew of the incident prompting
                     the suit and would be willing to accept service of the
                     documents on their daughter’s behalf.” Fletcher
                     explained that he “would need to obtain authority to
                     complete service in that manner.”

By Mar. 14 (Tues.)   Franklin’s Fort Worth-based counsel prepares and
                     files in Hays County district court a motion for
                     substituted service with Fletcher’s affidavit of
                     attempted process service attached. The motion stated
                     that service had been unsuccessfully attempted on
                     Bullock at both the Wimberley and Lakeway
                     addresses and requested an order authorizing service
                     by leaving a copy of the citation and petition with
                     anyone over sixteen years of age at the Lakeway
                     address or by securing the documents to the
                     residence’s front door.

                     Franklin’s affidavit was signed before a notary on
                     Tuesday, February 28.

                     The signature page of Franklin’s motion bears a
                     facsimile time-stamp of “Mar. 06 06 08:34 a.”
                     However, the motion bears a file stamp of March 14.

Mar. 17 (Fri.)       The district court signs Franklin’s motion for
                     substituted service. As Franklin had requested, the
                     court orders that “service on Defendant should be
                     made by leaving a copy of the citation, with a copy of
                     the petition attached, with anyone over sixteen years
                     of age or by securing to the front door” at the
                     Lakeway address.

                               7
       Apr. 8 (Sat.)                  At 2:45 p.m., pursuant to the district court’s order,
                                      Fletcher effected service by attaching the citation and
                                      petition to the front entrance door at the Lakeway
                                      address.

       Apr. 10 (Mon.)                 Fletcher signs a verification of service of process
                                      before a notary. The citation and return, signed by
                                      Fletcher, is filed.


               Franklin also attached to her summary-judgment response an affidavit from her

counsel, William Manning, who testified regarding service on Bullock. On May 7, two days before

the summary-judgment hearing, Bullock filed a reply to Franklin’s summary-judgment response in

which she raised numerous objections to Manning’s affidavit. The clerk’s record reflects that the

summary-judgment hearing took place on May 9, and that the district court took the matter under

advisement. On May 11, Franklin filed a response to Bullock’s reply, to which she attached

additional evidence not previously presented. On the same day, Bullock filed objections to

Franklin’s additional evidence, as well as a “final brief” urging that Franklin had failed to offer a

valid excuse for “gaps” between December 30, 2005, and January 25, 2006; February 7 to 18;

February 24 to March 14; and March 17 to April 8. On May 30, the district court signed an order

sustaining Bullock’s objections to Franklin’s evidence, granting Bullock’s summary-judgment

motion, and rendering judgment that Franklin take nothing on her claims.

               We agree with Franklin that Bullock’s summary-judgment evidence raised a fact issue

as to the diligence of Franklin’s service efforts. This evidence shifted the burden back to Bullock

to conclusively negate diligence and, in the face of the evidence, we conclude that Bullock failed to

meet that burden. Franklin’s efforts to obtain service on Bullock, and any supposed “gaps”amid such



                                                 8
activity, were comparable to those in Proulx, in which the supreme court held that the evidence

presented a fact issue regarding the plaintiff’s diligence in obtaining service. See 235 S.W.3d at

216-17 (noting unexplained nineteen-day gap between filing of petition and process

server’s receipt of citation and twenty-four-day gap between order authorizing substituted

service and service); see also Auten v. DJ Clark, Inc., 209 S.W.3d 695, 700-01

(Tex. App.—Houston [14th Dist.] 2006, no pet.) (noting two-week gap between service attempts);

Tate v. Beal, 119 S.W.3d 378, 381 (Tex. App.—Fort Worth 2003, pet. denied) (finding fact issue

on diligence despite three-month delay in service where plaintiff “spent some of this time obtaining

[defendant’s] correct address, requesting issuance of a second citation, and hiring a private process

server”); Taylor v. Rellas, 69 S.W.3d 621, 623 (Tex. App.—Eastland 2002, no pet.) (finding fact

issue on diligence despite delays of fifteen and twenty days between attempts).

               Because Bullock failed to conclusively establish lack of diligence, the district court

erred in granting summary judgment. We reverse the district court’s judgment and remand for

further proceedings.




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Reversed and Remanded

Filed: August 14, 2008




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