Walton, Anthony v. Dolgencorp of Texas, Inc. D/B/A Dollar General Stores ( 2000 )

NUMBER 13-99-463-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

ANTHONY WALTON

, Appellant,

v.

DOLGENCORP OF TEXAS, INC.,

D/B/A DOLLAR GENERAL STORES

, Appellee.

___________________________________________________________________

On appeal from the 130th District Court of Matagorda County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Rodriguez

Opinion by Justice Dorsey

Anthony Walton appeals from a summary judgment for Dolgencorp of Texas, Inc. d/b/a Dollar General Stores (Dolgencorp) on the basis of limitations. The issue is whether he used due diligence in obtaining service on Dolgencorp. We affirm.

On November 26, 1997, Walton sued Dolgencorp for negligence, alleging that on December 5, 1995 he was injured on its premises. Dolgencorp moved for summary judgment, asserting that the two-year limitations period barred the suit. It asserted that Walton did not use due diligence in effecting service of process because it was not served until August 20, 1998, almost nine months after suit was filed.

Walton filed a response, asserting that he used due diligence because he timely served Dolgencorp by certified mail on December 8, 1997. Attached to the response is a copy of a certified mail receipt to CT Corporate Systems. The date of delivery is December 8, 1997. The sender's name and address are not shown, and there is no other evidence concerning the receipt. No summary judgment evidence accompanied the response such as affidavits or interrogatory responses. See Tex. R. Civ. P.166a(c).

Analysis

A two-year statute of limitations governs Walton's claim. Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (Vernon Supp. 2000). To bring suit within the two-year limitations period under section 16.003 a plaintiff must not only file suit within the limitations period, but must also use diligence to have the defendant served with process. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990). 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. Id. To obtain summary judgment on the grounds that an action was not served within the applicable limitations period the movant must show that as a matter of law diligence was not used to effectuate service. Id.

Dolgencorp was not served until August 20, 1998, about eight and one-half months after expiration of limitations and almost nine months after suit was filed. The record is void of any evidence showing that Walton used due diligence in issuing service of citation, and there is no explanation for the delay in obtaining service. Texas courts have held that due diligence was lacking as a matter of law based on unexplained lapses of shorter duration. See, e.g., Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex. App.--Corpus Christi 1991, no writ) (unexplained, five-month delay after expiration of limitations is, as a matter of law, not due diligence in procuring issuance and service of citation); Allen v. Bentley Laboratories, Inc., 538 S.W.2d 857 (Tex. Civ. App.--San Antonio 1976, writ ref'd n.r.e.) (six months between filing and service); Williams v. Houston-Citizens Bank & Trust Co., 531 S.W.2d 434 (Tex. Civ. App.--Houston [14th Dist.] 1975, writ ref'd n.r.e.) (7 2/3 months between expiration of first citation and issuance of second citation). We hold that an unexplained delay of almost nine months in obtaining service on Dolgencorp establishes failure to use diligence as a matter of law. Accordingly limitations barred the suit. We affirm.

______________________________

J. BONNER DORSEY,

Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 26th day of October, 2000.