      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00055-CV



                                   Paula Villanueva, Appellant

                                                 v.

      McCash Enterprises, Inc. d/b/a Comet Cleaners and Comet Cleaners, Appellees


            FROM THE COUNTY COURT AT LAW NO. 1 OF COMAL COUNTY
          NO. 2012CVA0179, HONORABLE RANDAL C. GRAY, JUDGE PRESIDING



                            MEMORANDUM OPINION

               Paula Villanueva appeals from the trial court’s grant of summary judgment in favor

of appellees McCash Enterprises, Inc. d/b/a Comet Cleaners and Comet Cleaners based upon the

statute of limitations. The one issue on appeal is whether a genuine issue of material fact exists

concerning Villanueva’s use of due diligence in having the citation in this case issued and served,

thus making summary judgment improper. Because we conclude that Villanueva raised no genuine

issue of material fact to support a finding of due diligence, we affirm the trial court’s judgment.


                                        BACKGROUND

               Paula Villanueva sued appellees, her employers, for negligence after she was injured

at work on March 11, 2010. She filed suit on March 7, 2012, and the clerk prepared and mailed the

citation of the case to Villanueva’s attorney on the following day. Her attorney mailed the citation

to the process server on July 19, 2012, and appellees were served on August 6, 2012.
               Appellees filed a motion for summary judgment asserting the affirmative defense of

statute of limitations. They contended that they were entitled to summary judgment because they

were not served until four months after the statute of limitations had expired, as evidenced by the

citation issued and served. See Tex. Civ. Prac. & Rem. Code § 16.003 (personal injury claim

governed by two-year statute of limitations). Villanueva filed a response in which she claimed that

she acted with due diligence to serve the citation, but that service was delayed due to a turnover of

staff at her attorney’s law firm. As evidence, Villanueva included an affidavit from her attorney’s

office manager. The office manager averred: (i) on March 9, 2012, the legal secretary responsible

for ensuring the delivery of the citation left her employment with Villanueva’s law firm, (ii) a

different legal secretary was hired for the firm on March 14, 2012, (iii) on June 29, 2012, this legal

secretary also ceased to be employed by Villanueva’s firm, and (iv) on June 30, 2012, an attorney

handling Villanueva’s case left his employment at the firm. The evidence also included a letter dated

July 19, 2012, from Villanueva’s attorney to a process server in San Antonio. Appellees were served

eighteen days later on August 6, 2012.

               After a hearing, the trial court granted appellees’ summary judgment motion. This

appeal followed.


                                           DISCUSSION

             Did the Appellant Exercise Due Diligence in Serving the Appellees?

                In one issue, Villanueva contends the trial court erred in granting summary judgment

on statute of limitations grounds because a genuine issue of material fact exists as to whether she

exercised due diligence in obtaining service of citation on appellees.

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                                         Standard of Review

                We review a trial 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);

Knott, 128 S.W.3d at 215–16. 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 doubt in

the non-movant’s favor. Dorsett, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215.


                                 Due Diligence in Securing Service

                Once a plaintiff has filed a petition within the statute of limitations period for a

personal injury claim, he or she must use due diligence in serving the defendant with the citation.

Proulx v. Wells, 235 S.W.3d 213, 215–16 (Tex. 2007) (per curiam); see also Gant v. DeLeon,

786 S.W.2d 259, 260 (Tex. 1990). If a defendant affirmatively pleads limitations and establishes

that service was effected after the limitation period expired, as is the case here, the burden shifts to

the plaintiff to explain the delay. See Proulx, 235 S.W.3d at 216. The plaintiff must then present

evidence to raise a fact issue as to due diligence in service of process. Id. at 215 (citing Gant,

786 S.W.2d at 260).1




       1
          If the plaintiff’s evidence raises a material fact regarding the diligence of service, the
burden then returns to the defendant to conclusively show why, as a matter of law, the evidence is
insufficient. Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007).


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               To explain a delay in service, “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. at 216 (citing Gant, 786 S.W.2d at 260); see also Zimmerman v. Massoni,

32 S.W.3d 254, 256 (Tex. App.—Austin 2000, pet. denied) (holding that a plaintiff’s attorney must

evaluate continuously the state of efforts to secure service); Rodriguez v. Tinsman & Houser, Inc.,

13 S.W.3d 47, 49 (Tex. App.—San Antonio 1999, pet. denied) (upholding summary judgment

because plaintiff’s explanation that service was delayed for 25 days out of professional courtesy was

not sufficient); Liles v. Phillips, 677 S.W.2d 802, 809 (Tex. App.—Fort Worth 1984, writ ref’d

n.r.e.) (holding lack of diligence existed as matter of law when the plaintiff “offered no explanation

whatsoever concerning the delay between filing suit and service of citation”). But see Hodge

v. Smith, 856 S.W.2d 212, 215 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (holding that

the plaintiff’s explanation for a 27 month delay in service raised a fact question because he

had attempted to effect service and had reason to believe that he had actually effected service

by publication).

               “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.” Proulx, 235 S.W.3d at 216. 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



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patently unreasonable.’” Franklin v. Bullock, No. 03-07-00511-CV, 2008 Tex. App. LEXIS 6239,

at *4 (Tex. App.—Austin Aug. 14, 2008, no pet.) (mem op.) (quoting Proulx, 235 S.W.3d at 216);

see also Rodriguez, 13 S.W.3d at 49 (holding that due diligence will not be found as a matter

of law if no excuse for lack of service of citation is provided, or if the lapse of time and the

plaintiff’s acts, or inaction, conclusively disprove diligence); Valdez v. Charles Orsinger Buick Co.,

715 S.W.2d 126, 128 (Tex. App.—Texarkana 1986, no writ) (holding “[when] finding lack of

diligence as a matter of law, either no explanation was offered for the delay in issuing and serving

citation, or the excuse given was one which affirmatively established lack of reasonable diligence”).

               Appellees in this case met their initial summary judgment burden by establishing the

date of Villanueva’s alleged personal injury on March 11, 2010, and that they were served with the

citation on August 6, 2012, more than four months after the statute of limitations for a personal

injury suit had expired. See Tex. R. Civ. P. 166a(c); Tex. Civ. Prac. & Rem. Code § 16.003. The

burden then shifted to Villanueva to raise a fact issue. See Proulx, 235 S.W.3d at 216. While the

length of time taken to effect service is a factor a court will consider in establishing if a party

acted with due diligence, it is neither the only nor a dispositive factor. Hull v. Vidaurri,

No. 03-08-00204-CV, 2010 Tex. App. LEXIS 424, at *5 (Tex. App.—Austin Jan. 22, 2010, pet.

denied) (mem. op.) (citing Ashley v. Hawkins, 293 S.W.3d 175, 181 (Tex. 2009)); Zacharie v. U.S.

Natural Res. Inc., 94 S.W.3d 748, 754 (Tex. App.—San Antonio 2002, no pet.) (citing Keeton

v. Carrasco, 53 S.W.3d 13, 18 (Tex. App.—San Antonio 2001, pet. denied)).

               Here, Villanueva’s explanation for the delay in service was the turnover of staff in

her attorney’s office. But mere reliance upon an employee to ensure service of citation is not due



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diligence as a matter of law because this reliance is “patently unreasonable.” See Campbell

v. Abrazo Adoption Assocs., No. 04-09-00827-CV, 2010 Tex. App. LEXIS 5161, at *10–12 (Tex.

App.—San Antonio July 7, 2010, pet. denied) (mem. op.) (holding that failure of an attorney’s office

staff to effectuate service is not due diligence as a matter of law); see also Proulx, 235 S.W.3d at 216

(noting that explanations for service that do not account for lapses in service efforts may be “patently

unreasonable”); Rodriguez, 13 S.W.3d at 51 (holding that a delay in service due to professional

courtesy does not demonstrate due diligence as a matter of law); Jennings v. H.E. Butt Grocery Co.,

No. 04-97-00266-CV, 1998 Tex. App. LEXIS 1314, at *2 (Tex. App.—San Antonio March 4, 1998,

pet. denied) (mem. op.) (holding that reliance upon an “employee or the process server does not

constitute due diligence in procuring service of citation because any erroneous assumption does not

constitute excuse for delay in service of citation”). Employee turnover does not address any

affirmative efforts taken to secure service. Thus, Villanueva failed to provide a valid explanation

for the delay or to submit evidence of any activity to show efforts made to effect service from

March 8, 2012 to July 19, 2012, over a four month period. Villanueva also failed to submit evidence

of any attempts to secure service other than including a copy of the letter dated July 19, 2012, to the

service processor. It was eighteen more days from the date of the letter before appellees were served.

A prudent person upon discovering that service had not been effected would have acted with all haste

to ensure that the citation was promptly served thereafter.

                In her brief, Villanueva primarily relies on Valdez to argue that unintentional attorney

conduct provides a valid excuse for delay in service. In Valdez, two defendants were sued. Valdez,

715 S.W.2d at 127. Due to a miscommunication between the legal secretary responsible for ensuring

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service of citation and the clerk’s office, the fee paid to issue citation of service was insufficient to

serve both defendants. Id. at 128. The Valdez court reversed the trial court’s grant of the

defendant’s summary judgment motion, finding that the miscommunication was sufficient to raise

a fact issue as to whether the plaintiff exercised due diligence. Id. at 127. However, unlike Valdez,

this case does not involve miscommunication with the clerk’s office. While miscommunication with

the clerk’s office may raise a fact issue on the question of diligence, a lack of communication within

a party’s law firm does not because “there are no efforts from which to evaluate the reasonableness

or diligence of the actor.” Rodriguez, 13 S.W.3d at 51. Further, in order to show due diligence, a

party must act as an ordinarily prudent person would have acted under the same or similar

circumstances. Proulx, 235 S.W.3d at 216. A prudent person would have taken steps to ensure that

all current matters being handled by a departing employee were adequately handled.

                We conclude that Villanueva’s delay in service shows a lack of due diligence as a

matter of law. The summary judgment evidence established a lack of any effort to secure service for

over four months after the statute of limitations had expired. Thus, there is no genuine issue of

material fact as to whether Villanueva acted with the requisite due diligence to prevent summary

judgment. See Id. We overrule Villanueva’s issue.


                                           CONCLUSION

                Because we conclude that there is no genuine issue of material fact as to whether

Villanueva acted with the requisite due diligence to prevent summary judgment, we affirm the trial

court’s summary judgment.



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                                                   ____________________________________

                                                   Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Goodwin and Field

Affirmed

Filed: August 15, 2013




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