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Guillen v. Frels12/8/2005
years after the accident. As this court explained in Carter v. MacFadyen:
Filing suit interrupts limitations only if a plaintiff exercises diligence in serving the defendant. When a defendant moves for summary judgment and shows that service occurred after the limitations deadline, "the burden shifts to the plaintiff . . . to explain the delay." The plaintiff's evidence must explain every period of delay. Once the plaintiff presents an explanation, the burden shifts back to the defendant to show why those explanations are insufficient as a matter of law.
93 S.W.3d 307, 313 (Tex. App.--Houston [14th Dist.] 2002, pet. denied) (citations omitted).
Due diligence requires the plaintiff to exercise the diligence to procure service that an ordinarily prudent person would have used under the same or similar circumstances. Belleza-Gonzalez v. Villa, 57 S.W.3d 8, 12 (Tex. App.--Houston [14th Dist.] 2001, no pet.). Generally, the question of diligence is a question of fact. Id. Nevertheless, lack of diligence may be shown as a matter of law based on unexplained lapses of time between the filing of the petition and service on the defendant. Brown, 77 S.W.3d at 887.
The summary judgment proof in the present case fails to raise a genuine issue of material fact regarding Guillen's diligence during the eight month period from February 24, 2003, when the trial court granted Guillen's motion to retain the case on the docket and October 31, 2003, when Guillen filed her amended motion naming William Frels as personal representative of Arnold's estate. In her motion to retain the case on the docket, Guillen represented she then had "conclusive information" Arnold had been dead for some time; she also requested additional time to amend her pleadings "to serve the heirs to [Arnold's] estate and to prosecute this suit." Yet, she waited eight months to file an amended pleading. There is nothing in the summary judgment proof explaining this period of delay.
This unexplained eight-month delay alone conclusively negates diligence as a matter of law. See id. (holding unexplained delay of slightly more than five months not due diligence as a matter of law); Belleza-Gonzales, 57 S.W.3d at 11-12 (citing cases in which delays of five to six months established lack of due diligence as a matter of law); Pitula v. Valera, No. 12-01-00302-CV, 2002 WL 1065971, at *2 (Tex. App.--Tyler May 22, 2002, no pet.) (not designated for publication) (holding failure to serve administrator of defendant's estate for approximately six months after being notified of defendant's death showed lack of due diligence as matter of law).
We overrule Guillen's two issues.
CONCLUSION
Having overruled Guillen's two issues, we affirm the judgment of the trial court.
Judgment rendered and Memorandum Opinion filed December 8, 2005.
Panel consists of Chief Justice Hedges and Justices Yates and Anderson.
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