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Cooper v. Balderas8/16/2001
Adonna Cooper appeals from a summary judgment granted in favor of Callie Balderas based upon the affirmative defense of limitations, specifically lack of due diligence in obtaining service of citation. We reverse and remand.
FACTS
On September 24, 1996, Adonna Cooper was involved in a motor vehicle collision with Callie Balderas. On September 17, 1998, Cooper filed a personal injury suit against Balderas for damages. Balderas was not served with citation until February 10, 1999, more than four months after the statute of limitations had expired. Balderas moved for summary judgment on August 5, 1999, claiming that limitations barred suit because Cooper had not exercised due diligence in obtaining service of process. Cooper filed a response to the motion on September 20, 1999, along with a motion for continuance in order to depose Balderas's insurance adjuster who she claimed had relevant knowledge of her attempts to locate Balderas. The trial court denied Cooper's request for a continuance, struck Cooper's supplemental response as untimely, and granted Balderas's motion for summary judgment.
Due Diligence
In Issue One, Cooper complains that the trial court erred in granting summary judgment because Balderas failed to conclusively prove that Cooper had not exercised due diligence in obtaining service upon her.
To bring suit within the two-year limitations period prescribed by the Texas Civil Practice and Remedies Code, the plaintiff must not only file suit within two years, but must also use diligence in having the defendant served with process. When, as here, 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 exercises diligence in effecting service. 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.
A defendant moving for summary judgment on the affirmative defense of limitations has the burden of conclusively establishing that defense. Here, movant must show that, as a matter of law, diligence was not used to effectuate service. Due diligence is generally a fact question raised by the validity of the plaintiff's excuse for failure to timely serve notice of process. Nevertheless, if no excuse is offered for a delay in procuring service of citation, or if the lapse of time and the plaintiff's actions conclusively negate diligence, running of limitations may be found as a matter of law. Unexplained lapses of time between filing of the suit, issuance of citation, and service of process may be sufficient to conclusively establish lack of diligence.
The Arguments of the Parties
Cooper argues that her summary judgment evidence, including an affidavit filed by Massar, created a fact issue regarding the diligence issue because it not only shows an ongoing effort to locate Balderas during the four-month period, but also establishes an excuse for her inability to do so, namely, the refusal of the insurance adjuster to provide her address and Balderas's efforts to avoid service. Balderas, on the other hand, defends the trial court's judgment by arguing that she conclusively established a lack of due diligence because the evidence shows the existence of two extended time periods in which Cooper made no effort to locate or serve her and Cooper has offered no explanation or excuse for these lapses. Balderas also raises defects of both form and substance with respect to Cooper's summary judgment e
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