      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00486-CV



                                 Christopher N. Rad, Appellant

                                                 v.

                                    Sam’s Boat, Inc., Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
    NO. D-1-GN-08-001111, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Christopher Rad appeals from a summary judgment in favor of Sam’s Boat, Inc.

(“Sam’s”). Sam’s is a bar and restaurant where Rad was involved in an altercation. Rad

subsequently sued Sam’s for defamation and malicious prosecution, claiming that a Sam’s employee

made false statements about the altercation to police. Sam’s moved for summary judgment on the

bases that Rad (1) filed suit after the applicable limitations period expired and (2) failed to timely

serve process on Sam’s. The trial court granted Sam’s motion. On appeal, Rad argues that the

limitations period did not expire and his untimely service should be excused. We will affirm.


                      FACTUAL AND PROCEDURAL BACKGROUND

               On September 10, 2004, Rad was involved in an altercation at Sam’s. Rad alleges

that a Sam’s employee made false statements about the altercation to the police, resulting in Rad

being arrested on October 13, 2004. The police dropped the charges against Rad on July 7, 2005.
                Rad filed suit against Sam’s on January 13, 2006, alleging defamation and malicious

prosecution. He first requested issuance of citation on October 17, 2006. A constable unsuccessfully

attempted to serve the citation on Sam’s five times between October 23 and 27, 2006.1 After the

final attempt, Rad made no further efforts to serve process until November 20, 2007, when he filed

a motion for substituted service. The court granted the motion on November 29, 2007 and issued

a new citation on December 5, 2007. Rad served that citation on December 11, 2007 on the same

registered agent at the same address as had been listed on the original citation.2

                Sam’s filed an answer on January 7, 2008 and a motion for summary judgment on

February 11, 2008. The motion argued that Rad’s claims were time-barred. See Tex. Civ. Prac.

& Rem. Code Ann. § 16.002(a) (West 2002) (actions for malicious prosecution and defamation have

one-year statute of limitations). Specifically, it argued that Rad’s defamation cause of action accrued

by October 13, 2004 at the latest (the date Rad was arrested) and Rad’s malicious-prosecution cause

of action accrued by July 7, 2005 at the latest (the date Rad’s criminal charges were dropped). Sam’s

argued that because Rad filed suit on January 13, 2006, more than a year after Rad’s defamation

cause of action accrued, that cause of action was clearly time-barred. Sam’s acknowledged that Rad

filed suit less than a year after his malicious-prosecution cause of action accrued, but it nevertheless

argued that the cause of action was time-barred because Rad did not actually serve process on Sam’s

until December 11, 2007. See Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007) (per curiam) (“[A]



        1
        Rad alleges that the constable made an appointment with Sam’s agent to deliver the citation
on October 24, 2006, but the agent did not show up.
        2
          A summary-judgment affidavit by Sam’s registered agent states that he had been at that
address the whole time.

                                                   2
timely filed suit will not interrupt the running of limitations unless the plaintiff exercises due

diligence in the issuance and service of citation.”).

               Rad responded to Sam’s summary-judgment motion by arguing that his defamation

cause of action did not accrue until January 2007 because that was when he first learned of the

allegedly defamatory statements made by the Sam’s employee. See Wheeler v. Methodist Hosp.,

95 S.W.3d 628, 636 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (“[T]he discovery rule applies

to a defamation claim if the matter is not public knowledge. When the discovery rule applies, it

defers the accrual of a cause of action until a plaintiff discovers or, through the exercise of

reasonable care and diligence, should discover the nature of the injury.”) (citations omitted). Rad

also claimed that he exercised diligence in trying to serve Sam’s and that therefore his service should

relate back to the date he filed suit. See Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990)

(per curiam) (“When a plaintiff files a petition within the limitations period, but does not serve the

defendant until after the statutory period has expired, the date of service relates back to the date of

filing if the plaintiff exercised diligence in effecting service.”). Finally, Rad argued that Sam’s had

unclean hands because its agent had “actively sought to avoid service,” so Sam’s should not be

allowed to prevail on the basis of a limitations argument.

               The trial court granted Sam’s summary-judgment motion, and Rad appealed.


                                    STANDARD OF REVIEW

               We review summary judgments de novo. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005). Summary judgment is appropriate when there is no genuine issue

of material fact and judgment should be granted in the movant’s favor as a matter of law.

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Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). “A defendant moving

for summary judgment on the affirmative defense of limitations has the burden to conclusively

establish that defense, including the accrual date of the cause of action.” Id. If the movant

establishes that the statute of limitations bars the action, the nonmovant can avoid summary

judgment only by adducing summary-judgment evidence that raises a fact issue in avoidance of the

statute of limitations.    Id.   When reviewing a summary judgment, we take as true all

competent evidence favorable to the nonmovant and indulge every reasonable inference in the

nonmovant’s favor. Id.


                                           DISCUSSION

               This case turns on when Rad’s claims accrued. We can assume for the sake of

analysis that they accrued as late as January 13, 2006, the date Rad filed suit.3 That being the case,

the limitations period expired for Rad’s claims by January 13, 2007 at the latest. See Tex. Civ. Prac.

& Rem. Code § 16.002(a) (actions for malicious prosecution and defamation have one-year statute

of limitations). Rad did not serve process on Sam’s until December 11, 2007. The question we must

answer, then, is whether Rad was sufficiently diligent in attempting service that we can relate his

eventual service back to the date he filed suit. See Gant, 786 S.W.2d at 260 (if plaintiff files suit

within limitations period but serves defendant after limitations period has expired, date of service




       3
         We cannot, however, credit Rad’s assertion, made in his response to Sam’s summary-
judgment motion, that his defamation claim did not accrue until January of 2007. Rad filed suit on
his defamation claim on January 13, 2006; he obviously had to have learned of the claim by then.
See Wheeler v. Methodist Hosp., 95 S.W.3d 628, 636 (Tex. App.—Houston [1st Dist.] 2002, no pet.)
(even when discovery rule applies, defamation claim accrues at latest when plaintiff learns of injury).

                                                  4
relates back to date of filing if plaintiff exercised diligence in effecting service). If not, then his

claims were time-barred. See Proulx, 235 S.W.3d at 215.

               We hold that, as a matter of law, Rad’s lack of diligence in attempting service means

that Rad’s eventual service on Sam’s does not relate back to the date Rad filed suit. Over ten months

elapsed between the date Rad filed suit (January 13, 2006) and the date he first attempted to serve

Sam’s (October 23, 2006). After an unsuccessful attempt at service on October 27, 2006, Rad made

no other efforts at service until November 20, 2007, when he filed a motion for substituted service.

Thus, between January 2006 and November 2007—a period of over twenty-two months—Rad’s

efforts at effecting service all occurred within a five-day window in October 2006. Even assuming

that the limitations period did not begin to run on Rad’s claims until the day Rad filed suit

(January 13, 2006), this means that Rad waited more than ten months after his claims expired (on

January 13, 2007) before again attempting service. See Tex. Civ. Prac. & Rem. Code § 16.002(a)

(actions for malicious prosecution and defamation have one-year statute of limitations). Courts

routinely hold claims to be time-barred as a matter of law for much smaller lapses in diligence. See,

e.g., Webster v. Thomas, 5 S.W.3d 287, 289-90 (Tex. App.—Houston [14th Dist.] 1999, no pet.)

(holding no due diligence as matter of law when evidence showed plaintiff’s actions over four

months were not designed to procure issuance and service of citation); Butler v. Ross, 836 S.W.2d

833, 836 (Tex. App.—Houston [1st Dist.] 1992, no writ) (holding five-and-a-half months of

inactivity and no service efforts between failed attempts at the wrong address and proper service at

the correct address constituted a lack of due diligence); Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex.

App.—Corpus Christi 1991, no writ) (stating that request for service five months after suit was filed



                                                  5
affirmatively demonstrated lack of due diligence); see also Gant, 786 S.W.2d at 260 (holding that

plaintiff failed to exercise due diligence as matter of law because he provided no explanation for

delays in service for three periods totaling thirty-eight months).

               Rad asserts that his efforts at service were thwarted because Sam’s agent “actively

sought to avoid service.” Rad appears to base this assertion on his claim that Sam’s agent

intentionally missed an appointment on October 24, 2006 at which he was supposed to accept service

from a constable. Even if we assume that Rad’s characterization of these events is accurate, it still

does not excuse Rad’s subsequent failure to make any effort to effect service for more than a year.

               In sum, even assuming that Rad’s causes of action accrued at the latest possible

date—the date Rad filed suit—those causes of action were still time-barred because Rad did not

exercise due diligence in effecting service. We affirm the summary judgment.




                                               __________________________________________

                                               David Puryear, Justice

Before Chief Justice Jones, Justices Puryear and Henson

Affirmed

Filed: June 18, 2010




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