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Clay v. Oden8/18/2000
Eric D. Clay and Vicki Sanders (appellants) appeal a take-nothing judgment granted in favor of Steven A. Oden. Appellants brought suit for injuries sustained in a motor vehicle accident. Oden moved for and obtained summary judgment based upon the statute of limitations. In two points of error, appellants contend the trial court erred in granting Oden's motion for summary judgment because (1) appellants provided a reasonable explanation and exercised due diligence in serving Oden after the statute ran, and (2) the trial court should have granted appellant's default judgment since Oden did not file an answer after he was served with citation. For the reasons stated below, we affirm the trial court's judgment.
Background
It is undisputed that a vehicle accident occurred on August 5, 1995 between appellants and Oden. Appellants filed suit against Oden alleging negligence on July 22, 1997, and the statute of limitations ran on August 5, 1997. Appellants filed an affidavit to have service of citation completed by publication on February 9, 1998. The trial court issued the citation on February 26, 1998, and it was returned on April 3, 1998, almost eight months after the limitations period ran. Oden did not file an answer. On August 14, 1998, a hearing on appellants's motion for default judgment was held, and the trial court appointed an attorney at litem to represent Oden, pursuant to rule 244 of the Texas Rules of Civil Procedure. After hearing testimony from both parties, the trial court granted the attorney ad litem's motion for continuance. The attorney ad litem filed "Defendant's Original Answer" on August 19, 1998, and located Oden in jail in Dallas County on September 18, 1998. After the trial court granted his motion to substitute counsel, Oden filed an amended original answer on December 22, 1998. On February 1, 1999, Oden filed a motion for summary judgment based upon the statute of limitations which the trial court granted.
Standard of Review
This Court reviews a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. See Foreness v. Hexamer, 971 S.W.2d 525, 527 (Tex.App._Dallas 1997, pet. denied). 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 judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non- movant will be taken as true; and (3) every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. See United States Fire Ins. Co. v. Williams, 955 S.W.2d 267, 268 (Tex. 1997). When a defendant moves for summary judgment on the ground that process was not served within the limitations period, the defendant must show that, as a matter of law, diligence was not used to effectuate service. See Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990).
Statute of Limitations - Due Diligence
A person must bring suit for personal injury no later than two years after the day the injury accrued. See Tex. Civ. Prac. & Rem. Code Ann. ยง 16.003 (Vernon Supp. 2000). In addition to filing suit within the applicable limitations period, a plaintiff must also use diligence to have the defendant served with process in order to effectively "bring suit" within the limitations period. See Gant, 786 S.W.2d at 260. When a plaintiff does not serve the defendant until after the limitations period runs, the date of service relates back to the date suit was filed only if the plaintiff exercises diligence in ef
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