Opinion filed July 29, 2010




                                             In The


   Eleventh Court of Appeals
                                           __________

                                      No. 11-09-00146-CV
                                          __________

                              SHAWN W. GRIFFIN, Appellant

                                                V.

                              JAMES ARTHUR HALE, Appellee


                              On Appeal from the 266th District Court

                                       Erath County, Texas

                                  Trial Court Cause No. CV27793


                              MEMORANDUM OPINION
       Shawn W. Griffin filed suit against James Arthur Hale for damages he sustained in an
automobile accident. The trial court granted Hale’s motion for summary judgment and Griffin
appeals. We affirm.
       Griffin filed suit against Hale on May 31, 2005, one month before limitations expired.
Although the clerk issued a citation at the time of the filing, Hale was not served. Hale filed a
general denial approximately two and one-half years later on December 22, 2008. Hale also
responded to Griffin’s request for production. Hale filed a motion for summary judgment on
February 23, 2009, raising the statute of limitations as an affirmative defense.
       In his sole issue on appeal, Griffin contends that the trial court erred in granting the
motion for summary judgment. He argues that the statute of limitations does not apply because
he filed suit within the limitations period and because Griffin waived any deficiency in service
by filing a general appearance.
       When a defendant moves for summary judgment, he must conclusively prove all the
essential elements of his defense as a matter of law, leaving no issues of material fact. Taylor v.
Thompson, 4 S.W.3d 63, 65 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). A properly
pleaded affirmative defense, such as limitations, may serve as the basis for a summary judgment.
Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991).
       When a plaintiff files his petition within the limitations period but does not serve the
defendant until after the period expires, the plaintiff must exercise diligence in serving citation to
interrupt the running of limitations. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990). The
plaintiff bears the burden to prove diligence when a defendant affirmatively pleads limitations
and shows that service was not timely. Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009).
Diligence is determined by whether the plaintiff acted as an ordinarily prudent person would
under the same or similar circumstance and whether the plaintiff acted diligently up until the
time the defendant was served.       Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007).            An
unexplained delay in effecting service constitutes a lack of diligence as a matter of law. See
Taylor, 4 S.W.3d at 65.
       Although the clerk issued a citation at the time of the filing, almost three years passed
and Hale was never served. An ordinarily prudent person would check whether the original
citation was actually served. Griffin offers no explanation for the delay and instead contends that
Hale waived any defect in service by filing a general appearance without challenging service.
However, a party does not waive its statute of limitations defense when it files a general
appearance after the running of the statute of limitations and the plaintiff has not used due
diligence in serving the party. James v. Gruma Corp., 129 S.W.3d 755, 760 (Tex. App.—Fort
Worth 2004, pet. denied); Taylor, 4 S.W.3d at 65.




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       We overrule Griffin’s sole issue and affirm the judgment of the trial court.




                                                     RICK STRANGE
                                                     JUSTICE


July 29, 2010
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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