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Sanderson v. Vela3/27/2003
Appellant Sanderson appeals a summary judgment granted in favor of appellee Vela in a personal injury suit stemming from a motor vehicle accident. In his summary judgment motion, Vela asserted that the suit was barred by the affirmative defense of limitations because of a lack of due diligence in service of process. In one issue, appellant claims the trial court erred in granting summary judgment because there is a material issue of fact as to whether or not she exercised due diligence in effectuating service. We affirm the trial court's judgment.
Background
On December 28, 1998, appellant's automobile was allegedly struck by appellee causing appellant injuries. On December 27, 2000, appellant filed suit. Citation issued the next day. On January 12, 2001, appellant's private process server picked up the citation from the courthouse. That process server delegated the act of service to another court approved process server. Appellant's attorney alleged in an affidavit that he called the original process server a few times in February 2001 to ascertain the status of service, but only learned that the original process server would "check" with the server to whom service had been delegated. Thereafter, on April 2, 2001, appellant received notice from the court of a final disposition hearing. By late July 2001, Appellant determined that the process server delegated to effectuate service could not be located. On July 30, 2001, citation was re-issued and another process server was dispatched to effectuate service. Appellant's affidavit evidence asserts that the appellee's family concealed him in these latter attempts at service. Appellant ultimately had to resort to substituted service on January 3, 2002.
Standard of Review
The standards for reviewing a summary judgment are well established: (1) the movant for summary judgment has the burden of showing there is no genuine issue of material fact and it is entitled to summary judgment as a matter of law; (2) in deciding whether there is a disputed fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and (3) every inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nat'l. Cas. Co. v. Lane Exp., Inc., 998 S.W.2d 256, 259 (Tex. App.-Dallas 1999, pet. denied)(citing Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985)). A defendant is entitled to summary judgment when each element of an affirmative defense to plaintiff's cause of action has been established as a matter of law. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990); Holt v. D'Hanis State Bank, 993 S.W.2d 237, 240 (Tex. App.-San Antonio 1999, no pet.).
Applicable Law
A plaintiff must file suit within the applicable limitations period and use diligence to have the defendant served. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (per curiam)(citing Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180, 182 (Tex. 1970)). The date of service relates back to the date of filing of the petition only if the plaintiff exercised diligence in effecting service. Id. (citing Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 890 (Tex. 1975) (per curiam)). The mere filing of suit will not interrupt the running of limitations unless a plaintiff exercises due diligence in the issuance and service of citation. Rigo Mfg. Co., 458 S.W.2d at 182; Perkins v. Groff, 936 S.W.2d 661, 667-68 (Tex. App.-Dallas 1996, writ denied). A party who files suit, but does not effect service until after limitations has run must show a bonafide immediate intention to serve the defendant. See Buie v. Couch, 126 S.W.2d 565, 566 (Tex. Civ. App.-Waco 1939, writ ref'd). The party reques
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