Opinion issued April 18, 2019




                                        In The

                                Court of Appeals
                                       For The

                            First District of Texas
                              ————————————
                                NO. 01-18-00122-CV
                             ———————————
                           LORETTA CUBA, Appellant
                                           V.
                    OLIVIA EVONNE WILLIAMS, Appellee


                     On Appeal from the 215th District Court
                              Harris County, Texas
                        Trial Court Case No. 2017-36144


                           MEMORANDUM OPINION

      Appellant, Loretta Cuba, challenges the trial court’s order dismissing her

negligence suit against appellee, Olivia Evonne Williams. In five issues, Cuba

contends that the trial court erred in dismissing her suit.

      We affirm.
                                     Background

      On May 30, 2017, Cuba filed her original petition, alleging that on June 6,

2015, Williams “rear ended” Cuba’s car with her sport utility vehicle (“SUV”).

According to Cuba, she sustained bodily injuries as a result of Williams’s failure to

“keep . . . lookout as a person of ordinary prudence would have kept under the same

or similar circumstances” and Williams’s operation of her SUV in a careless and

reckless manner and “with [a] disregard for the public.” Cuba brought a negligence

claim against Williams and sought damages for past and future medical expenses,

past and future physical pain and suffering, past and future mental anguish, and past

and future physical impairment.

      Williams generally denied Cuba’s allegations and asserted the affirmative

defense of statute of limitations, arguing that because Cuba did not exercise due

diligence in serving her until after the statute of limitations had expired, the date of

service did not relate back to the date of the filing of Cuba’s original petition and

Cuba’s negligence claim was barred.

      Subsequently, Williams filed a motion titled, “Motion to Show Cause as to

Why [Cuba]’s Case Should not be Dismissed for Failing to Exercise Due Diligence

in Serving [Williams].” In her motion, Williams asserted that under Texas law, “a

person must bring suit for personal injury no[] later than two years after the day the




                                           2
cause of action accrues,”1 and to “bring suit” within the two-year statute of

limitations, a plaintiff must not only file her suit within the limitations period, but

also use diligence to have the defendant served with process. (Internal quotations

omitted.) When a plaintiff files her original petition within the limitations period,

but does not serve a defendant until after the limitations period has expired, the date

of service relates back to the date of the filing of the petition if the plaintiff exercised

diligence in effecting service. When a plaintiff does not exercise due diligence in

serving the defendant until after the limitations period has expired, a timely filed suit

will not interrupt the running of limitations. The duty to exercise diligence is a

continuous one, extending from the date the original petition is filed until the date

that service is obtained. An unexplained delay in effecting service constitutes a lack

of diligence as a matter of law.

       According to Williams, on May 30, 2017, Cuba filed her original petition,

alleging that on June 6, 2015, a car accident occurred between Cuba and Williams

and Cuba suffered injuries. Thus, pursuant to the two-year statute of limitations,

Cuba was required to bring suit against Williams on or before June 6, 2017.

Although Cuba filed her original petition within the limitations period, Williams was

not served until September 14, 2017—after the limitations period had expired.

Because Williams pled the affirmative defense of statute of limitations and the

1
       See TEX. CIV. PRAC. & REM. CODE § 16.003(a).

                                             3
record showed that she was not served until September 14, 2017, after the limitations

period had expired, Williams asserted that Cuba was required to prove due diligence

in both the issuance of citation and the service of citation, which she could not do as

a matter of law. Williams requested that the trial court dismiss with prejudice Cuba’s

negligence claim against her based on the affirmative defense of statute of

limitations. In her motion, Williams also requested that the trial court take judicial

notice of its own record.

      In her response to Williams’s motion, Cuba asserted that she timely filed her

original petition seeking damages caused by Williams’s negligence.           On June 9,

2017, ten days after Cuba filed her original petition and only three days after the

limitations period expired, Cuba’s attorney “requested service of process

on . . . Williams” and paid $77.00 “to Harris County Constable Alan Rosen, Precinct

One to serve citation upon [Williams].” Thus, according to Cuba, she “was not

negligent in placing a citation in the hands of a county constable for service of

process on” Williams, and Cuba could not be responsible for the acts of the Harris

County Constable or “for the timing of the Constable’s office in serving” Williams.

Cuba attached to her response the affidavit of her attorney and a receipt.

      After a hearing of which no record was taken, the trial court granted

Williams’s motion based on the affirmative defense of statute of limitations and




                                          4
dismissed Cuba’s negligence claim against Williams with prejudice. Cuba filed a

motion for new trial, which the trial court denied.

                                 Nature of Motion

      In her first issue, Cuba argues that the trial court erred in dismissing her

negligence claim against Williams because Williams filed a motion to show cause,

rather than a motion for summary judgment, and “a show cause hearing [could] not

be used to adduce evidence on the merits of [Williams]’s claim” that Cuba failed to

use due diligence in serving Williams.

      It is well settled that the nature of a motion is determined by its substance,

rather than its title or caption. See In re Brookshire Grocery Co., 250 S.W.3d 66, 72

(Tex. 2008) (orig. proceeding); State Bar of Tex. v. Heard, 603 S.W.2d 829, 833

(Tex. 1980); see also TEX. R. CIV. P. 71; Surgitek, Bristol–Myers Corp. v. Abel, 997

S.W.2d 598, 601 (Tex. 1999) (“We should not be so constrained by the form or

caption of a [motion].”). The substance of a motion is gleaned from the body of the

motion and the prayer for relief. Finley v. J.C. Pace Ltd., 4 S.W.3d 319, 320 (Tex.

App.—Houston [1st Dist.] 1999, no pet.). We examine the substance of Williams’s

motion and the relief sought to determine how to treat the motion. See Poppe v.

Poppe, No. 01-08-00021-CV, 2009 WL 566490, at *2 (Tex. App.—Houston [1st

Dist.] Mar. 5, 2009, no pet.) (mem. op.).




                                            5
      To prevail on a summary-judgment motion, a movant has the burden of

proving that she is entitled to judgment as a matter of law and there is no genuine

issue of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339,

341 (Tex. 1995). A defendant moving for summary judgment as a matter of law

must either: (1) disprove at least one element of the plaintiff’s cause of action, or

(2) plead and conclusively establish each essential element of her affirmative

defense. Cathey, 900 S.W.2d at 341; Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d

399, 404 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). Once the movant

meets her burden, the burden shifts to the non-movant to raise a genuine issue of

material fact precluding summary judgment. Centeq Realty, Inc. v. Siegler, 899

S.W.2d 195, 197 (Tex. 1995); Transcon. Ins. Co. v. Briggs Equip. Trust, 321 S.W.3d

685, 691 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

      Here, Williams filed a motion titled, “Motion to Show Cause as to Why

[Cuba]’s Case Should not be Dismissed for Failing to Exercise Due Diligence in

Serving [Williams].” However, she argued in her motion that she was entitled to

judgment because she had proved her statute-of-limitations affirmative defense as a

matter of law. See TEX. R. CIV. P. 166a(c) (summary judgment proper where

evidence establishes no question of fact and movant entitled to judgment as matter

of law); see also TEX. R. CIV. P. 94 (statute of limitations constitutes affirmative

defense); Tex. Underground, Inc. v. Tex. Workforce Comm’n, 335 S.W.3d 670, 675


                                         6
(Tex. App.—Dallas 2011, no pet.) (running of limitations period operates to prohibit

assertion of cause of action and involves final disposition of case).          More

specifically, Williams asserted in her motion that Cuba was required to bring her

negligence claim against Williams within two years of the parties’ June 6, 2015 car

accident.2 And although Cuba filed her original petition on May 30, 2017, she did

not serve Williams until September 14, 2017—after the limitations period had

expired. Further, in her motion, Williams asserted that Cuba could not prove due

diligence in both the issuance of citation and the service of citation as a matter of

law, and she requested that the trial court dismiss with prejudice Cuba’s negligence

claim based on Williams’s affirmative defense. See Mossler v. Shields, 818 S.W.2d

752, 754 (Tex. 1991); McIntosh v. Partridge, No. 01-12-00368-CV, 2013 WL

1790229, at *3 (Tex. App.—Houston [1st Dist.] Apr. 25, 2013, no pet.) (mem. op.)

(“[D]ismissal of an action with prejudice constitutes a final determination or an

adjudication on the merits, and it operates as if the case ha[d] been fully tried and

decided. An order dismissing a case with prejudice has full res judicata and

collateral estoppel effect, barring subsequent re-litigation of the same causes of

action or issues between the same parties.” (internal citations omitted)). Cuba

concedes that Williams relied on “cases involving motions for summary judgment”

to support her arguments in her motion.

2
      See id.

                                          7
      Although Williams did not attach evidence to her motion, she did request that

the trial court take judicial notice of its own record and relied on the trial court’s

record in her motion. See TEX. R. CIV. P. 166a(c) (summary-judgment proof need

only be “on file at the time of the hearing, or filed thereafter and before judgment

with permission of the court”); Weisberg v. London, No. 13-02-659-CV, 2004 WL

1932748, at *6 (Tex. App.—Corpus Christ–Edinburg Aug. 31, 2004, no pet.) (mem.

op.) (“When considering a summary-judgment motion, the trial court may judicially

notice documents that are part of its record in the case at issue, since they are already

on file and available for the court’s consideration.”); Jones v. Jones, 888 S.W.2d

849, 852–53 (Tex. App.—Houston [1st Dist.] 1994, no writ) (because trial court may

take judicial notice of documents and orders which are part of its record, movant

need not attach copies of such documents and orders to summary-judgment motion);

McMurry v. Aetna Cas. & Sur. Co., 742 S.W.2d 863, 867–68 (Tex. App.—Corpus

Christi–Edinburg 1987, writ denied). And Williams’s motion was filed twenty-one

days prior to the hearing on her motion. See TEX. R. CIV. P. 166a(c); see also Briggs

v. Toyota Mfg. of Tex., 337 S.W.3d 275, 281 (Tex. App.—San Antonio 2010, no

pet.) (although defendant asserted affirmative defense in motion to dismiss, record

shows summary-judgment procedure utilized in connection with motion to dismiss,

including filing motion twenty-one days prior to hearing and parties presenting

evidence to support positions).


                                           8
      In her response, filed more than seven days prior to the hearing on Williams’s

motion, Cuba asserted that she timely filed her original petition, and on June 9, 2017,

ten days after Cuba’s original petition was filed and only three days after the

limitations period had expired, Cuba’s attorney “requested service of process

on . . . Williams” and paid $77.00 “to Harris County Constable Alan Rosen, Precinct

One to serve citation upon [Williams].” See TEX. R. CIV. P. 166a(c) (non-movant

may file response no “later than seven days prior to the day of hearing”). Thus,

according to Cuba, she “was not negligent in placing a citation in the hands of a

county constable for service of process on” Williams and Cuba was not responsible

for the acts of the Harris County Constable or “for the timing of the Constable’s

office in serving” Williams. Cuba attached to her response her attorney’s affidavit

and a receipt as evidence of her due diligence. See Happy Jack Ranch, Inc. v. HH

& L Dev., Inc., No. 03-12-00558-CV, 2015 WL 6832631, at *2 (Tex. App.—Austin

Nov. 6, 2015, pet. denied) (mem. op.) (although plaintiffs complained defendant

used motion to dismiss to assert affirmative defense of limitations, holding

limitations issue properly before trial court “in a summary-judgment posture”);

Briggs, 337 S.W.3d at 281 (although defendant asserted affirmative defense in

motion to dismiss, record shows summary-judgment procedure utilized in

connection with motion to dismiss, including parties presenting evidence to support

positions); see also Hunter v. Johnson, 25 S.W.3d 247, 250 n.5 (Tex. App.—El Paso


                                          9
2000, no pet.) (typically, after defendant files motion for summary judgment on

limitations defense, plaintiff is given opportunity to respond to motion arguing

limitations period has not expired).

      Examining the substance of Williams’s motion, we hold that Williams’s

“Motion to Show Cause as to Why [Cuba]’s Case Should not be Dismissed for

Failing to Exercise Due Diligence in Serving [Williams]” should be considered a

matter-of-law summary-judgment motion. See Tex. Underground, Inc., 335 S.W.3d

at 675–76 (affirmative defense such as statute of limitations usually raised in

summary-judgment motion); see also Briggs, 337 S.W.3d at 281 (treating motion to

dismiss as motion for summary judgment); Poppe, 2009 WL 566490, at *2–3;

Martin v. Dosohs I, Ltd., 2 S.W.3d 350, 354–55 (Tex. App.—San Antonio 1999, pet.

denied); Robinson v. Buckner Park, Inc., 547 S.W.2d 60, 61 n.1 (Tex. App.—Dallas

1977, writ ref’d n.r.e.) (treating dismissal with prejudice as summary judgment that

plaintiff take nothing). And as such, the trial court’s order granting Williams’s

motion and dismissing with prejudice Cuba’s negligence claim based on the

affirmative defense of statute of limitations, should be construed as an order granting

a matter-of-law summary-judgment motion in favor of Williams. See In re J.A.L.,

No. 14-16-00614-CV, 2017 WL 4128947, at *2 (Tex. App.—Houston [14th Dist.]

Sept. 19, 2017, no pet.) (mem. op.); Henny v. JPMorgan Chase Bank, N.A., No.




                                          10
01-10-00476-CV, 2012 WL 524429, at *3 (Tex. App.—Houston [1st Dist.] Feb. 16,

2012, no pet.) (mem. op.).

      We overrule Cuba’s first issue.

                               Summary Judgment

      In her second, third, fourth, and fifth issues, Cuba argues that the trial court

erred in dismissing her negligence claim against Williams based on expiration of the

statute of limitations because the trial court “unlawfully shifted the burden onto”

Cuba, Williams “bore the burden to disprove diligence as a matter of law,” “the issue

of whether Cuba’s actions manifested a ‘bona fide intention’ to have process served

upon Williams” should have been submitted to the trier of fact, and “a fact question

exist[ed] . . . precluding summary disposition.”

      A.     Standard of Review

      An appellate court reviews a trial court’s summary judgment de novo.

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). As previously

noted, to prevail on a matter-of-law summary-judgment motion, a movant has the

burden of proving that she is entitled to judgment as a matter of law and there is no

genuine issue of material fact. TEX. R. CIV. P. 166a(c); Cathey, 900 S.W.2d at 341.

When a defendant moves for summary judgment on an affirmative defense, she must

plead and conclusively establish each essential element of her defense, thereby

defeating the plaintiff’s cause of action. Cathey, 900 S.W.2d at 341; Yazdchi, 177


                                         11
S.W.3d at 404. Once the movant meets her burden, the burden shifts to the

non-movant to raise a genuine issue of material fact precluding summary judgment.

Centeq Realty, Inc., 899 S.W.2d at 197; Transcon. Ins. Co., 321 S.W.3d at 691. The

evidence raises a genuine issue of fact if reasonable and fair-minded fact finders

could differ in their conclusions in light of all of the summary-judgment evidence.

Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). When

deciding whether there is a disputed, material fact issue precluding summary

judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr.

Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). Every reasonable inference

must be indulged in favor of the non-movant and any doubts must be resolved in her

favor. Id. at 549.

      Where, as here, the trial court specifies the ground on which the motion for

summary judgment was granted, the appellate court should consider whether the trial

court correctly granted summary judgment on that basis. See Cincinnati Life Ins.

Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996); Primo v. Garza, No.

01-14-00480-CV, 2015 WL 777999, at *1 (Tex. App.—Houston [1st Dist.] Feb. 24,

2015, no pet.) (mem. op.). In the interest of judicial economy, an appellate court

may consider other grounds that the movant preserved for review and the trial court

did not rule on. See Cates, 927 S.W.2d at 626; Primo, 2015 WL 777999, at *1.

However, it is not necessary to do so in the instant case.


                                          12
      B.     Statute of Limitations

      A plaintiff must bring a suit for personal injuries within two years from the

day the cause of action accrued.        See TEX. CIV. PRAC. & REM. CODE ANN.

§ 16.003(a). A timely filed suit does not suspend the running of limitations unless

the plaintiff exercises due diligence in the issuance and service of citation. Proulx

v. Wells, 235 S.W.3d 213, 215 (Tex. 2007). In other words, if a plaintiff files her

original petition within the limitations period, but obtains service on the defendant

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

“diligence” in procuring service. Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex.

2009). When a plaintiff diligently effects service after the expiration of the statute

of limitations, the date of service relates back to the date of the timely filing of her

original petition. Proulx, 235 S.W.3d at 215.

      When a defendant affirmatively pleads the defense of statute of limitations

and shows that service occurred after the limitations period expired, the burden shifts

to the plaintiff to prove her diligence. Ashley, 293 S.W.3d at 179; Proulx, 235

S.W.3d at 215–16. The plaintiff then must present evidence regarding the efforts

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

Proulx, 235 S.W.3d at 216. The issue 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.” Ashley, 293 S.W.3d at 179


                                          13
(internal quotations omitted). Our diligence inquiry examines (1) the time taken to

procure citation, service, or both and (2) the type of effort or lack of effort the

plaintiff expended in effecting service. Proulx, 235 S.W.3d at 216; Harris v. Bell,

No. 14-16-00829-CV, 2018 WL 1057449, at *3 (Tex. App.—Houston [14th Dist.]

Feb. 27, 2018, pet. denied) (mem. op.). A plaintiff’s diligence is measured from the

time she filed suit until the time the defendant was successfully served, and an

explanation is needed for every period of delay. Milcoun v. Werner Co., 565 S.W.3d

358, 362 (Tex. App.—Houston [14th Dist.] 2018, no pet.); Sharp v. Kroger Tex.

L.P., 500 S.W.3d 117, 119 (Tex. App.–Houston [14th Dist.] 2016, no pet.).

      The question of the plaintiff’s diligence in obtaining service is generally “one

of fact”; however, a plaintiff’s explanation of her efforts to obtain service may

demonstrate a lack of diligence as a matter of law “when one or more lapses between

service efforts are unexplained or patently unreasonable.” Proulx, 235 S.W.3d at

216. If the plaintiff’s explanation for the delay raises a material fact issue concerning

her diligence of service efforts, the burden shifts back to the defendant to

conclusively show why, as a matter of law, the plaintiff provided an insufficient

explanation. Id.

      Here, it is undisputed that Cuba’s cause of action accrued on June 6, 2015,

and the statute of limitations expired on June 6, 2017. See TEX. CIV. PRAC. & REM.

CODE ANN. § 16.003(a). Further, it is undisputed that Cuba timely filed her original


                                           14
petition on May 30, 2017. However, Williams established that she was not served

with Cuba’s original petition until September 14, 2017—100 days after the

expiration of the limitations period. Thus, the burden shifted to Cuba to demonstrate

her diligence in effecting service on Williams. See Ashley, 293 S.W.3d at 179;

Proulx, 235 S.W.3d at 215–16.

      As evidence of diligence, Cuba attached the affidavit of her attorney to her

response to Williams’s motion. In the affidavit, Cuba’s attorney testified:

      [D]ue to the statute of limitations running[,] I filed suit and then
      requested service within the next two [sic] days by the constable’s
      office. The lawsuit was filed on May 30, 2017 (see the file) and request
      for service was filed on 06/09/2017.

      It appears that the summons service was not served until September 14,
      2017. Service was effective and was not delayed by this office. The
      Constable’s Office took over 60 days to issue the summons.

Cf. Harris, 2018 WL 1057449, at *4 (attorney’s affidavit “d[id] not explain the

reason for the delay or detail any efforts [plaintiffs] undertook to effect service on

[defendant] during th[at] time”); Rodriguez v. Tinsman & Houser, Inc., 13 S.W.3d

47, 49 (Tex. App.—San Antonio 1999, pet. denied) (“[A]n offered explanation must

involve diligence to seek service of process.”). Cuba also attached to her response

an “Official Receipt” from the district clerk showing payment of $77.00 on June 9,

2017. The receipt does not specify the reason for the $77.00 payment.

      In her response, Cuba asserted that she first requested service of process on

Williams on June 9, 2017, ten days after she filed her original petition and three days
                                          15
after the limitations period expired. Cuba offered no explanation for her delay in

requesting issuance of citation and service.      See Proulx, 235 S.W.3d at 216;

Mauricio v. Castro, 287 S.W.3d 476, 479 (Tex. App.—Dallas 2009, no pet.) (“Texas

courts have consistently held that lack of diligence may be shown based on

unexplained lapses of time between the filing of the suit, issuance of the citation,

and service of process.”); see also Sharp, 500 S.W.3d at 120 (“[A]n explanation is

needed for every period of delay.” (emphasis added)).

      When Cuba did file her “Civil Process Request” on June 9, 2017, a copy of

which is contained in the record, she requested service by certified mail, rather than

by a constable as she asserted in her response to Williams’s motion. Cuba also failed

to fully complete her “Civil Process Request” form. Most importantly, Cuba failed

to list her “Original Petition with Request for Disclosure” in response to the blank

for the “SERVICE TO BE ISSUED ON (Please List Exactly As The Name Appears

In The Pleading To Be Served)” and she failed to list “Citation” in response to the

blank for the “TYPE OF SERVICE/PROCESS TO BE ISSUED.” The “Civil

Process Request” form states that “[s]ervice requests which cannot be processed by

th[e] office will be held for 30 days prior to cancellation. . . . Service requests may

be reinstated upon appropriate action by the parties.”

      The record next shows that on August 22, 2017, Cuba sent a letter, directed to

“Civil Intake,” stating: “Please be advised that we . . . need[] a citation to be


                                          16
prepared and service sent by constable service.” Cuba’s August 22, 2017 letter, a

copy of which is contained in the record, was her first request for issuance of citation

and service by constable on Williams. Cuba offered no explanation for her delay

between May 30, 2017, the day she filed her original petition, and August 22, 2017,

the day she sent her letter seeking issuance of citation and service by constable.

Further, Cuba offered no explanation for her delay between June 9, 2017, the day

she filed her deficient “Civil Process Request” seeking service by certified mail, and

August 22, 2017, the day she sent her letter seeking issuance of citation and service

by constable. See Proulx, 235 S.W.3d at 216; Mauricio, 287 S.W.3d at 479; see also

Sharp, 500 S.W.3d at 120 (“[A]n explanation is needed for every period of delay.”

(emphasis added)).

      The record further shows that the district clerk did not issue citation until

September 7, 2017—sixteen days after Cuba’s August 22, 2017 letter—and on

September 12, 2017, the constable received the citation and a copy of Cuba’s original

petition. On September 14, 2017, the constable served Williams with the citation

“together with the accompanying copy of” Cuba’s original petition. Cuba offered

no explanation for the delay between her August 22, 2017 letter, issuance of citation

on September 7, 2017, and eventual service of process on Williams on September

14, 2017. See Proulx, 235 S.W.3d at 216; Mauricio, 287 S.W.3d at 479; see also

Sharp, 500 S.W.3d at 120 (“[A]n explanation is needed for every period of delay.”


                                          17
(emphasis added)); Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 590

(Tex. App.—Corpus Christi–Edinburg 1994, no writ) (“It is the responsibility of the

one requesting service, not the process server to see that service is properly

accomplished. Any deficiency in the server’s performance is imputed to [the party

seeking service].” (internal citations omitted)).

       The duty to exercise diligence is a continuous one, extending until service is

achieved. Boyattia v. Hinojosa, 18 S.W.3d 729, 733 (Tex. App.—Dallas 2000, pet.

denied); Taylor v. Thompson, 4 S.W.3d 63, 65 (Tex. App.—Houston [1st Dist.]

1999, pet. denied). Although it is the duty of the district clerk to issue a citation and

deliver it as directed by the party requesting issuance, ultimately, it is the

responsibility of the party requesting service to see that proper service is sufficiently

reflected in the record. See TEX. R. CIV. P. 99(a) (“The party requesting citation

shall be responsible for obtaining service of the citation and a copy of the petition.”);

Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994). Thus, when a

party learns, or by the exercise of diligence should have learned, that the clerk has

failed to fulfill his duty, it is incumbent upon the party to ensure that the job is done.

Boyattia, 18 S.W.3d at 734; see also Proulx, 235 S.W.3d at 216 (we examine “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”).




                                            18
      As noted above, Cuba provided no explanation for her delay between the

filing of her original petition and her first attempt, albeit deficient, to request service

of process by certified mail on June 9, 2017. See Proulx, 235 S.W.3d at 216;

Mauricio, 287 S.W.3d at 479 (“Texas courts have consistently held that lack of

diligence may be shown based on unexplained lapses of time between the filing of

the suit, issuance of the citation, and service of process.”); see also Sharp, 500

S.W.3d at 120 (“[A]n explanation is needed for every period of delay.” (emphasis

added)). Further, Cuba provided no explanation for her delay between the filing of

her original petition and her request for issuance of citation and service of process

by a constable on August 22, 2017. See Proulx, 235 S.W.3d at 216; Mauricio, 287

S.W.3d at 479; see also Sharp, 500 S.W.3d at 120. Moreover, Cuba offered no

explanation for the delay between her August 22, 2017 letter, issuance of citation on

September 7, 2017, and eventual service of process on Williams on September 14,

2017. See Proulx, 235 S.W.3d at 216; Mauricio, 287 S.W.3d at 479; see also Sharp,

500 S.W.3d at 120.

      Moreover, even if we construed Cuba’s August 22, 2017 letter as an attempt

to follow-up with the district clerk to determine why her June 9, 2017 deficient

request for service of process by certified mail never materialized, Cuba does not

explain why it took her seventy-four days to follow-up with the district clerk. See

Stoney v. Gurmatakis, No. 01-09-00733-CV, 2010 WL 1840247, at *2–4 (Tex.


                                            19
App.—Houston [1st Dist.] May 6, 2010, no pet.) (mem. op.) (plaintiff waited two

months to inquire with clerk’s office); Boyattia, 18 S.W.3d at 734 (“Although a party

may ordinarily rely on the clerk to perform his duty within a reasonable amount of

time . . . [the party seeking service] should have known the clerk was not fulfilling

his duty to deliver the . . . citation within a reasonable time.”); see also Oyejobi v.

Dollar Tree Stores, Inc., No. 14-15-00969-CV, 2017 WL 61838, at *2 (Tex. App.—

Houston [14th Dist.] Jan. 5, 2017, no pet.) (mem. op.) (even mistake by clerk in not

issuing requested service does not support diligence because “[i]t is ultimately the

plaintiff’s responsibility to ensure that citation is served on the defendant, and the

plaintiff may not wholly ignore this duty for a lengthy period” (internal quotations

omitted)). At the very least, Cuba’s failure to act between her first, albeit deficient,

request for service of process by certified mail on June 9, 2017 and her August 22,

2017 letter seeking issuance of citation and service by constable, constitutes a lack

of diligence as a matter of law. See Boyattia, 18 S.W.3d at 734 (“A party who wholly

ignores her duty to have the citation served on the defendant during a lengthy period

of time the citation remains with the clerk does not manifest a bona fide intention to

have process served.”); see also De La Cerda v. Jaramillo, No. 01-17-00595-CV,

2018 WL 1189065, at *4–7 (Tex. App.—Houston [1st Dist.] Mar. 8, 2018, no pet.)

(mem. op.) (plaintiff did not exercise diligence where plaintiff took no action during




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six-week period); Stoney, 2010 WL 1840247, at *2–4 (no explanation for two-month

delay in contacting clerk’s office to inquire about issuance of citation).

      We note that in her new-trial motion Cuba stated that two weeks after she

“request[ed] service by certified mail,” her “attorney’s case manager and senior legal

assistant began checking weekly and bi-weekly with the [d]istrict clerk’s office for

service noting that certified mail service c[ould] take a little longer when a defendant

avoids picking up or signing the certified receipt for service and when there is a

miscommunication[] or mistake by the district clerk’s office unknown to the plaintiff

which result[s] in service being unsuccessful.” Further, according to Cuba, for an

unexplained reason, on August 22, 2017, “it was determined . . . that the clerk’s

office had made some mistake with not issuing service” and Williams “should be

served by personal service.” Thus, Cuba “sent a letter on that same date requesting

citation by personal service”; however, Williams was not “finally served [until]

September 19, 2017 [sic] at 11:08 am.” Notably, this “evidence” relied on by Cuba

in her motion for new trial was not before the trial court at the time it decided

Williams’s motion, and thus, is not to be considered on appellate review. See

McMahan v. Greenwood, 108 S.W.3d 467, 482–83 (Tex. App.—Houston [14th

Dist.] 2003, pet. denied) (evidence attached to motion for new trial not before trial

court when it granted summary judgment, thus appellate court did not consider it in

summary-judgment appeal).


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      Based on the foregoing, we conclude that as a matter of law Cuba failed to

use diligence in procuring citation and effecting service on Williams; thus, the date

of service does not relate back to the date that Cuba filed her original petition.

Accordingly, we hold that the trial court did not err in granting Williams summary

judgment and dismissing Cuba’s negligence claim against Williams based on the

expiration of the statute of limitations.

      We overrule Williams’s second, third, fourth, and fifth issues.

                                      Conclusion

      We affirm the final order of the trial court.




                                                 Julie Countiss
                                                 Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.




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