Dolly Ann Islas v. Daisy Sanchez Dominguez ( 2019 )

Affirmed and Memorandum Opinion filed August 13, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00139-CV
DOLLY ANN ISLAS, Appellant
V.
DAISY SANCHEZ DOMINGUEZ, Appellee
On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Cause No. 1067857
MEMORANDUM OPINION
This is an appeal from the trial court’s grant of summary judgment in favor
of Daisy Sanchez Dominguez based on Dolly Ann Islas’ failure to exercise due
diligence in procuring citation and effectuating service of process on Dominguez
before the two-year statute of limitations expired. We affirm.
Background
Islas alleges she was injured in a car accident on December 9, 2014 when
Dominguez failed to yield the right of way while turning left across traffic,
resulting in a collision. Islas filed suit on September 23, 2015. Islas moved for
substituted service on January 13, 2016. Her attorney attached an affidavit to the
motion in which he attested, “I have exercised due diligence in attempting to locate
the whereabouts of Daisy Sanchez Dominguez and have been unable to do so. I
have attempted by mail, [publicdata.com], and phone books.” The trial court
signed an order granting the motion for substituted service on January 22, 2016,
authorizing Islas to serve Dominguez with citation by publication. The statute of
limitations expired on December 9, 2016. On January 20, 2017, Islas moved the
court to appoint an attorney to defend Dominguez “because service will be made
by publication.”1 The trial court appointed an attorney ad litem on January 26,
2017. Service on Dominguez was effected on February 22, 2017.
Dominguez answered, pleaded the affirmative defense of limitations, and
filed a motion for summary judgment on the ground that Islas had not served
Dominguez before the statute of limitations expired. In her response, Islas argued
she served Dominguez “only two months after the expiration of the statute of
limitations,” Dominguez did not conclusively prove Islas’ lack of due diligence,
and Islas “searched all databases and public records for the whereabouts of
[Dominguez] before determining that [counsel] was going to be unable to locate
[Dominguez].” Islas presented an affidavit from the attorney ad litem attesting that
it took him three to four months to locate Dominguez. The trial court granted
Dominguez’s motion and dismissed the lawsuit.
1
See Tex. R. Civ. P. 244 (“Where service has been made by publication, and no answer
has been filed nor appearance entered within the prescribed time, the court shall appoint an
attorney to defend the suit in behalf of the defendant, and judgment shall be rendered as in other
cases.”).
2
Discussion
In three issues, Islas contends that the trial court erred in granting the trial
court’s motion for summary judgment because (1) the pleadings attached to
Dominguez’s motion were not authenticated, (2) Dominguez did not conclusively
prove her affirmative defense of limitations, and (3) Islas diligently obtained
service after the expiration of the statute of limitations.
We review de novo the trial court’s grant of summary judgment. See Sharp
v. Kroger Tex. L.P., 500 S.W.3d 117, 119 (Tex. App.—Houston [14th Dist.] 2016,
no pet.). In a traditional motion for summary judgment, the movant has the burden
of establishing that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law. Id. (citing Tex. R. Civ. P.
166a(c)). When a defendant moves for summary judgment on an affirmative
defense, she must conclusively prove all the essential elements of her defense as a
matter of law, leaving no issues of material fact. Id. We consider all the evidence
in the light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding contrary evidence unless
reasonable jurors could not. See id. The evidence raises a genuine issue of fact if
reasonable and fair-minded jurors could differ in their conclusions in light of all of
the summary judgment evidence. Id.
A suit for personal injuries must be brought within two years from the time
the cause of action accrues. Tex. Civ. Prac. & Rem. Code § 16.003(a). But a timely
filed suit will not interrupt the running of limitations unless the plaintiff exercises
due diligence in the issuance and service of citation. Proulx v. Wells, 235 S.W.3d
213, 215 (Tex. 2007); Sharp, 500 S.W.3d at 119. If service is diligently effected
after limitations has expired, the date of service will relate back to the date of
filing. Proulx, 235 S.W.3d at 215; Sharp, 500 S.W.3d at 119. Once a defendant has
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affirmatively pleaded the limitations defense and shown that service was effected
after limitations expired, the burden shifts to the plaintiff to explain the delay.
Proulx, 235 S.W.3d at 216; Sharp, 500 S.W.3d at 119. Thus, the plaintiff has the
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. Proulx, 235
S.W.3d at 216; Sharp, 500 S.W.3d at 119. But if the plaintiff’s explanation for the
delay raises a material fact issue concerning the diligence of service efforts, the
burden shifts back to the defendant to conclusively show why, as a matter of law,
the explanation is insufficient. Proulx, 235 S.W.3d at 216; Sharp, 500 S.W.3d at
119.
It is undisputed that Islas filed suit before the statute of limitations expired
but did not serve Dominguez with process until after that date. Dominguez pleaded
the affirmative defense of limitations. The burden then shifted to Islas to
demonstrate due diligence as to every period of delay in procuring citation and
effecting service on Dominguez. See Sharp, 500 S.W.3d at 119.
Islas complains, however, that the pleadings attached to the motion for
summary judgment (which were from this lawsuit) were not authenticated. We
presume the trial court took into consideration the file that was before it in its own
court. See Air Routing Int’l Corp. (Canada) v. Britannia Airways, Ltd., 150 S.W.3d
682, 697 n.15 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (citing Holley v.
Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ denied)
(stating “[t]he trial court may properly take into consideration the file that is before
it . . . [w]e presume the trial court took judicial notice of its files”)). Dominguez
was only required to state in her motion for summary judgment that she pleaded
the affirmative defense of limitations and was not required to attach authenticated
copies of the pleadings that are in the trial court’s file. See Sharp, 500 S.W.3d at
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119. The burden then shifted to Islas to show due diligence. See id.
Islas argues that she showed due diligence because she served Dominguez
only two and a half months after the expiration of the statute of limitations and
diligence should be measured after the expiration of the statute of limitations. But
we have repeatedly held that “the measure of diligence begins from the time the
suit is filed and an explanation is needed for every period of delay.” Sharp, 500
S.W.3d at 120; see also Tran v. Trejos, No. 14-17-00998-CV, 2019 WL 962605, at
*3 (Tex. App.—Houston [14th Dist.] Feb. 28, 2019, no pet.) (mem. op.); Milcoun
v. Werner Co., 565 S.W.3d 358, 362 (Tex. App.—Houston [14th Dist.] 2018, no
pet.); Callaway v. Beuhler, No. 14-16-00554-CV, 2016 WL 7478379, at *3 (Tex.
App.—Houston [14th Dist.] Dec. 29, 2016, no pet.) (mem. op). Accordingly, we
must analyze Islas’ delay from the time the suit was filed until she requested
citation and effected service. See Sharp, 500 S.W.3d at 120.
A plaintiff is not required to use the highest degree of diligence to procure
service but is required to use the degree of diligence that an ordinarily prudent
person would have used under the same or similar circumstances. Id. Generally,
the question of diligence is a question of fact, but if no excuse is offered for a delay
in the service of citation, or if the lapse of time and the plaintiff’s acts conclusively
negate diligence, a lack of diligence will be found as a matter of law. Id. Texas
courts have consistently held that due diligence is lacking as a matter of law when
there are unexplained lapses of time between filing suit, issuance of citation, and
service. Id. We consider the time taken to “procure citation and/or service” and the
type of effort or lack of effort the plaintiff expended in procuring service. Id. at
120–21.
The trial court granted the motion for substituted service on January 22,
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2016.2 But Islas waited until February 15, 2017 to request citation by publication,
which is one year and five months after suit was filed, over a year after the trial
court granted the motion for substituted service, and over two months after the
statute of limitations had expired. Service by citation was effected a week after the
request for citation was filed, on February 22, 2017. Islas offers no explanation on
appeal for these periods of delay other than to say “[s]ervice two and a half months
after the statute of limitations [expired] is clearly diligent effort.” Islas was
required to explain what steps she took to obtain service during every period of
delay. See Slagle v. Prickett, 345 S.W.3d 693, 698 (Tex. App.—El Paso 2011, no
pet.) (“[W]hen a defendant complains of lack of due diligence in service of
process, the plaintiff must explain what steps he took to obtain service, not explain
why he did nothing.”); see also Sharp, 500 S.W.3d at 121 (holding inaction for
over five months with no explanation for period of delay conclusively negated due
diligence as a matter of law).
We hold that Islas’ inaction for over a year in procuring citation and
accomplishing service conclusively negates due diligence as a matter of law. See
Sharp, 500 S.W.3d at 121. Moreover, it is not reasonably diligent to wait over two
months after the statute of limitations has expired to effect service by publication
when the trial court had already granted a motion for service by publication long
before the expiration of the limitations period. See Tran, 2019 WL 962605, at *4
(“[I]t is not reasonably diligent to allow more than three months to pass without
affirmatively checking the status of a pending motion to substitute counsel when
the party knows that service has not been achieved and the limitations deadline is
2
Islas waited a year after that to file a motion asking the trial court to appoint an attorney
to defend the suit on behalf of Dominguez. She was not required to do so before effecting
service. See Tex. R. Civ. P. 244 (requiring trial court to appoint attorney to defend the suit after
service by publication if “no answer has been filed nor appearance entered within the prescribed
time”).
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fast approaching.”); cf. Sharp, 500 S.W.3d at 122 (Christopher, J., concurring)
(concluding plaintiff’s failure to attempt service before limitations expired when
the lawsuit had been on file for several months showed a lack of diligence and
supported summary judgment on limitations). We overrule Islas’ three issues.
Conclusion
We conclude that the trial court did not err in rendering summary judgment
in favor of Dominguez. We affirm the judgment of the trial court.
/s/ Frances Bourliot
Justice
Panel consists of Chief Justice Frost and Justices Bourliot and Poissant.
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