Farmers Texas County Mutual Insurance Company, as Subrogee of Maloree Tennison v. Kristen Melissa McAbee ( 2019 )


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  • AFFIRMED; Opinion Filed April 3, 2019.
    In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-18-00735-CV
    FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY, AS
    SUBROGEE OF MALOREE TENNISON, Appellant
    V.
    KRISTEN MELISSA MCABEE, Appellee
    On Appeal from the County Court at Law No. 4
    Collin County, Texas
    Trial Court Cause No. 004-03135-2017
    MEMORANDUM OPINION
    Before Justices Bridges, Partida-Kipness, and Carlyle
    Opinion by Justice Partida-Kipness
    Farmers Texas County Mutual Insurance Company, as subrogee of Maloree Tennison,
    appeals the trial court’s adverse summary judgment on its claims against Kristen Melissa McAbee.
    Presenting a single issue, Farmers asserts the trial court erred in granting summary judgment based
    on limitations because the summary judgment evidence did not conclusively establish Farmers’
    lack of due diligence in serving McAbee. We affirm the summary judgment.
    BACKGROUND
    This dispute arises from an automobile accident that occurred on January 11, 2016 between
    Maloree Tennison and Kristen Melissa McAbee. After Farmers paid its insured, Tennison, for
    property damage her vehicle sustained in the accident, it filed this lawsuit against McAbee on
    December 29, 2017, shortly before the two-year limitations period expired. On January 31, 2018,
    the trial court issued a notice of dismissal for want of prosecution (DWOP) setting the matter for
    a hearing on March 2, 2018. On February 28, 2018, Farmers’ counsel first requested citation be
    issued to McAbee. The request was made about six weeks after limitations had expired on the
    case. Citation was issued on March 1 and McAbee was served at her home the following day, on
    March 2.
    On March 23, McAbee filed an answer to the lawsuit, along with a traditional motion for
    summary judgment, asserting that Farmers’ claims against her were barred by limitations.
    Specifically, she argued the case was time-barred because Farmers did not use diligence in serving
    her. Farmers opposed the motion, relying primarily on the affidavit of its attorney. Farmers argued
    its evidence sufficiently explained the delay in serving McAbee. After hearing oral arguments,
    the trial court granted a take-nothing summary judgment in favor of McAbee based on limitations.
    Farmers filed this appeal.
    ANALYSIS
    In its sole issue, Farmers generally argues that because it provided evidence of an
    explanation for the duration of the delay between when the petition was filed and when McAbee
    was served, McAbee did not establish Farmers’ lack of due diligence as a matter of law. We
    disagree.
    We review the trial court’s summary judgment ruling de novo. See Exxon Corp. v. Emerald
    Oil & Gas Co., L.C., 
    331 S.W.3d 419
    , 422 (Tex. 2010). The movant for traditional summary
    judgment has the burden to establish there is no genuine issue of material fact and that it is entitled
    to summary judgment as a matter of law. See Tex. R. Civ. P. 166a(c). When reviewing a summary
    judgment, we take as true all evidence favorable to the nonmovant, and we indulge every
    reasonable inference and resolve any doubts in the nonmovant’s favor. Valence Operating Co. v.
    Dorsett, 
    164 S.W.3d 656
    , 661 (Tex. 2005).
    –2–
    The mere filing of a petition within the limitations period will not interrupt the running of
    limitations unless the plaintiff exercises diligence in procuring the issuance and service of citation
    on the defendant. See Ashley v. Hawkins, 
    293 S.W.3d 175
    , 179 (Tex. 2009). Once McAbee moved
    for summary judgment on her limitations defense and showed that service was not timely, the
    burden shifted to Farmers to prove diligence in serving her. 
    Id.
     If Farmers’ explanation for the
    delay raises a material fact issue concerning the diligence of service effort, the burden shifts back
    to McAbee to conclusively show why, as a matter of law, the explanation is insufficient. See
    Proulx v. Wells, 
    235 S.W.3d 213
    , 216 (Tex. 2007) (per curiam). If, however, Farmers’ explanation
    of its service efforts demonstrates a lack of due diligence as a matter of law, such as when one or
    more lapses are unexplained, or the explanation is patently unreasonable, summary judgment is
    appropriate. See 
    id.
     In assessing diligence, the relevant focus 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 when the defendant was served. 
    Id.
    Here, it is undisputed that McAbee had not been served with the petition when the statute
    of limitations expired on January 11, 2018. In fact, McAbee was not served until almost two
    months later, on March 2. In response to McAbee’s summary judgment motion, Farmers’ attorney
    submitted an affidavit stating that he had no staff over the holidays and “due to an oversight,” he
    failed to include a request for citation when filing the petition. He further indicated his new
    paralegal had no reason to know citation had not been requested. Moreover, he said he did not
    receive the trial court’s January 31 notice of dismissal for want of prosecution until February 20.
    Nevertheless, request for citation was not issued until February 28, two days before the DWOP
    hearing. McAbee was served on March 2, the day of the DWOP hearing.
    On appeal, Farmers contends its evidence created a fact issue regarding diligence because
    there was only a sixty-two-day delay between the filing of the petition and service on McAbee,
    –3–
    and Farmers offered an explanation for the delay. But it is not simply the length of the delay here
    that is dispositive. We must also consider Farmers’ effort to procure citation in the first place.
    The record reveals Farmers’ counsel simply did not request citation when the petition was filed,
    nor did he request citation upon receiving the trial court’s DWOP notice on February 20. It appears
    that Farmers’ counsel was not even aware that he had not requested issuance of citation until
    February 28, one week after he asserts he received the trial court’s DWOP notice. Farmers’
    summary judgment evidence simply explained why it did nothing to procure service until February
    28 rather than explain what steps it took to procure service on McAbee. See Slagle v. Prickett,
    
    345 S.W.3d 693
    , 698 (Tex. App.—El Paso 2011, no pet.) (when defendant complains of lack of
    due diligence, plaintiff must explain steps he took to obtain service not explain why he did
    nothing). Moreover, there is no reason given as to why Farmers waited from December 29, 2017,
    the day the petition was filed, until February 28 to check to see if McAbee had been served and
    thus discover its error.
    We conclude the circumstances here present a situation in which Farmers did not exercise
    due diligence to procure issuance of citation and service as matter of law. Rather, the efforts can
    only be described as lacking and not the efforts an ordinarily prudent person would have used
    under the same or similar circumstances. See Proulx, 235 S.W.3d at 216; Stoney v. Gurmatakis,
    No. 01-09-00733-CV, 
    2010 WL 1840247
    , at *3–4 (Tex. App.—Houston [1st Dist.] May 6, 2010,
    no pet.) (mem. op.) (attorney’s failure to contact process server and clerk’s office to inquire into
    service two months later was not diligence as a matter of law). Accordingly, we resolve Farmers’
    only issue against it.
    –4–
    CONCLUSION
    Based on the record before us, we affirm the trial court’s take-nothing summary judgment
    in favor of McAbee based on limitations.
    /Robbie Partida-Kipness/
    ROBBIE PARTIDA-KIPNESS
    JUSTICE
    180735F.P05
    –5–
    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    FARMERS TEXAS COUNTY MUTUAL                          On Appeal from the County Court at Law
    INSURANCE COMPANY, AS                                No. 4, Collin County, Texas
    SUBROGEE OF MALOREE TENNISON,                        Trial Court Cause No. 004-03135-2017.
    Appellant                                            Opinion delivered by Justice Partida-
    Kipness, Justices Bridges and Carlyle
    No. 05-18-00735-CV          V.                       participating.
    KRISTEN MELISSA MCABEE, Appellee
    In accordance with this Court’s opinion of this date, the judgment of the trial court is
    AFFIRMED.
    It is ORDERED that appellee Kristen Melissa McAbee recover her costs of this appeal
    from appellant Farmers Texas County Mutual Insurance Company, as subrogee of Maloree
    Tennison.
    Judgment entered this 3rd day of April, 2019.
    –6–
    

Document Info

Docket Number: 05-18-00735-CV

Filed Date: 4/3/2019

Precedential Status: Precedential

Modified Date: 4/4/2019