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Potter v. Giron5/4/2000
This suit arose out of an automobile accident involving vehicles driven by Nora Potter, appellant, and Yesenia Giron, appellee. Appellant later sued for personal injuries she sustained. We are asked to decide if the trial court erred in its rendition of summary judgment in favor of appellee. We affirm.
Facts and Procedural History
Appellant sued Lucia Cordero, owner of the car, and appellee on July 22, 1996. Appellant had already reached a settlement with Cordero, so she dismissed Cordero from the lawsuit and set about to have appellee served. Appellant told the court in her motion for default judgment that appellee had been served by certified mail on March 12, 1997, and she obtained a default judgment on August 21, 1998. This default judgment was set aside on October 19, 1998. Appellee subsequently filed her original answer and a motion for summary judgment.
Summary Judgment
Summary judgment is proper only when the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). To obtain summary judgment on the grounds that an action was not served within the applicable limitations period, the movant must show, as a matter of law, that diligence was not used to effectuate service. Id.; Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975).
Appellant argues generally that the trial court erred in its rendition of summary judgment in favor of appellee on the grounds that the suit is barred by the statute of limitations. Appellee contends appellant's suit is barred by the statute of limitations for lack of due diligence in the service of citation on appellee.
The statute of limitations governing causes of action for personal injury is two years. Tex. Civ. Prac. & Rem. Code Ann. ยง 16.003 (Vernon Supp. 2000). To bring suit within the two-year statute of limitations, a plaintiff must not only file the suit within the limitation period, but must also use diligence to have the defendant served with process. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990).
Appellee properly pleaded the affirmative defense of the statute of limitations in her answer. Tex. R. Civ. P. 94. Appellee met her initial burden of showing when appellant's cause of action accrued, March 30, 1995, the date of the accident, which appellant does not dispute. Butler v. Ross, 836 S.W.2d 833, 835 (Tex. App.-Houston [1st Dist.] 1992, no writ) (movant is required to show when the cause of action accrued to show the statute of limitations bars the claim). When a defendant affirmatively pleads the defense of limitations, and the record shows failure to timely serve the defendant, the burden is on the plaintiff to explain the delay. Id. Because appellant failed to serve citation on appellee within the period of limitations, she has the burden to adduce summary judgment proof raising a fact issue that she exercised due diligence in procuring the subsequent issuance and service of citation upon appellee. Taylor v. Thompson, 4 S.W.3d 63, 65 (Tex. App.-Houston [1st Dist.] 1999, pet. denied).
Appellant argues that she does not have the burden to prove diligence in her attempts to serve process on appellee, but rather, that appellee has the burden to prove lack of due diligence by appellant. Appellant erroneously relies on Zale Corp. v. Rosenbaum, 520 S.W.2d 889 (Tex. 1975), for this proposition.
When summary judgment is sought based on the statute of limitations, it is the movant's burden to conclusively establish the bar of limitations. The distinction in who has the burden of proof lies in wh
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