Paula Villanueva v. McCash Enterprises, Inc. D/B/A Comet Cleaners and Comet Cleaners ( 2013 )

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
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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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