Raymond B. Lewis and Rebecca Lewis v. AAA Flexible Pipe Cleaning Company

Opinion issued February 17, 2005 In The Court of Appeals For The First District of Texas NO. 01-04-00229-CV RAYMOND B. LEWIS AND REBECCA LEWIS, Appellants V. AAA FLEXIBLE PIPE CLEANING COMPANY, INC. AND DENNIS BRIAN MANN, Appellees On Appeal from the 190th District Court Harris County, Texas Trial Court Cause No. 2003-20,360 MEMORANDUM OPINION This is a negligence claim arising out of a motor vehicle collision. Appellants, Raymond and Rebecca Lewis, contend that the trial court erred in granting summary judgment in favor of appellees, Dennis Brian Mann and AAA Flexible Pipe Cleaning Company, Inc. (“AAA”), on the basis of appellees’ statute-of-limitations defense. We affirm. BACKGROUND On April 18, 2001, Mann, driving a truck belonging to his employer, AAA, collided with a car operated by appellant, Raymond Lewis. Raymond sustained significant personal injury. On April 17, 2003, the Lewises filed suit against Mann, alleging negligent operation of the truck, and against AAA, alleging vicarious liability. However, the Lewises never sought service of citation on either Mann or AAA, on their original petition. The Lewises allege that this was due to an oral agreement between the parties to postpone litigation until Raymond’s surgeries were complete, so that the full extent of his medical issues could be ascertained. In July 2003, the Lewises’ counsel, Bartholomew Okonkwo, learned that he had been administratively suspended from the practice of law. On or about September 1, 2003, substitute counsel, Yvonne Okonkwo, was found. On September 12, 2003, the trial court dismissed the suit for want of prosecution. On September 22, 2003, Yvonne Okonkwo filed her notice of appearance as the attorney of record and a motion to reinstate the suit, “seeking an additional sixty days to enable both sides to engage in serious negotiations . . . . In the alternative, to be given an opportunity to serve the defendant and hopefully proceed to negotiations.” The trial court reinstated the suit on October 3, 2003. On October 28, 2003, the Lewises filed a First Amended Original Petition and made their first request for service of citation on Mann and AAA. Service was effectuated on Mann and AAA on October 31, 2003. On November 18, 2003, Mann and AAA filed an original answer and a motion for summary judgment on the ground that the limitations period had expired. On December 15, 2003, the trial court granted Mann and AAA summary judgment on their limitations defense due to the Lewises’ lack of diligence in serving citation. ANALYSIS The Lewises raise several contentions that are cognizable as a single claim that the trial court erred in granting summary judgment in favor of AAA and Mann based on the statute of limitations defense. A. Standard of Review We review a trial court’s granting of a summary judgment de novo. Natividad v. Alexis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). A summary judgment under Rule of Civil Procedure 166a(c) is properly granted only when a movant establishes that there are no genuine issues of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant moving for summary judgment must either (1) disprove at least one element of the plaintiff’s cause of action, or (2) plead and conclusively establish each essential element of an affirmative defense to rebut plaintiff’s cause. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). In deciding whether there is a disputed material fact precluding summary judgment, every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Tex. R. Civ. P. 166a; Nixon, 690 S.W.2d at 549. B. Statute of Limitations The statute of limitations is an affirmative defense. Tex. R. Civ. P. 4. To recover, a defendant must show when the plaintiff’s cause of action accrued, show the applicable limitations period, and show that the plaintiff failed to properly bring suit prior to the expiration of that period. See Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). Hence, to recover on their tort claims arising April 18, 2001, the Lewises must have brought suit no later than April 18, 2003. Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (Vernon 2002) (suit on personal injury claim must be brought within two years of date the cause of action accrued). Properly bringing suit within the limitations period requires both filing a petition within the statutory period and effectuating service of citation on the defendant within the statutory period. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990). It is undisputed that the Lewises filed their petition within the limitations period, on April 17, 2003, but that no service of citation was requested on that date or before the limitations period expired. When a petition is filed within the limitations period, but service does not occur until after the statutory period has expired, the suit is time-barred unless the petitioner can show that diligence was exercised in effectuating service. Id. If due diligence is shown, the date of service will relate back to the date of the filing of the petition. Id. Generally, whether due diligence was exercised is a fact question determined by a two-prong test: (1) whether the plaintiff acted as an ordinarily prudent person would have acted under similar circumstances and (2) whether the plaintiff acted diligently up until the time when service was effectuated. Taylor v. Thompson, 4 S.W.3d 63, 65 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). A lack of diligence will be found as a matter of law if no valid excuse is offered or if the plaintiff’s actions and the lapse of time conclusively negate diligence. Id.; see Webster v. Thomas, 5 S.W.3d 287, 289 (Tex. App.—Houston [14th Dist.] 1999, no pet.). In sum, in order to obtain summary judgment on the basis that the statutory limitations period was not met, the movant must show that diligence was not used in effectuating service, as a matter of law. Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975). C. Diligence in Service of Citation It is undisputed that the action accrued on April 18, 2001 and that the Lewises filed suit on April 17, 2003, the day before the statute of limitations would have barred their claim. In addition, it is undisputed that the Lewises did not request service on Mann or AAA on their original petition. The Lewises’ counsel was administratively suspended in July 2003. Substitute counsel, Yvonno Okonkwo, took over the Lewises’ case on or about September 1, 2003. The trial court dismissed the case for want of prosecution on September 12, 2003. On September 22, 2003, Yvonne Okonkwo filed her notice of appearance and moved to reinstate the suit. The trial court reinstated the suit on October 3, 2003. The Lewises then filed an amended petition and requested service on the amended petition on Mann and AAA on October 28, 2003. Mann and AAA were served on October 31, 2003. Hence, when Mann and AAA moved for summary judgment on November 18, 2003, the record showed that the Lewises had delayed in issuing service of citation for 6 months beyond the date they initially filed suit and for 6 months beyond the expiration of the statutory limitations period. This delay established that the Lewises failed to properly bring suit within the statutory period. See Gant, 786 S.W.2d at 260. The burden then shifted to the Lewises to explain each period of delay. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990); Gant, 786 S.W.2d at 260. The Lewises contend that their delay in effectuating service at the time they filed their petition in April 2003 was due to the existence of an oral agreement between the parties that suit would be filed, but that litigation would not be further pursued until after Raymond Lewis’s surgeries were complete, so that the full extent of his damages could be ascertained. The proof offered of such agreement is solely the Lewises’ assertion in their September 2003 motion to re-instate that alleged “this case was filed on April 18, 2003, with an understanding that the parties will attempt negotiated settlement.” Mann and AAA presently deny such agreement. Concerning the period thereafter, the Lewises assert that the “parties kept in touch” throughout June and July concerning Raymond’s condition. Then, in July 2003, the Lewises realized that Raymond’s medical condition would take more time to determine, so they decided to serve Mann and AAA to avoid being dismissed for want of prosecution. However, service was delayed again due to the administrative suspension of their counsel. Substitute counsel, Yvonne Okonkwo, took over the case on or about September 1, 2003. On September 12, 2003, the trial court dismissed the suit for want of prosecution. On September 22, 2003, Yvonne Okonkwo filed her notice of appearance as the attorney of record and moved to reinstate the suit, “seeking an additional sixty days to enable both sides to engage in serious negotiations . . . . In the alternative, to be given an opportunity to serve the defendant and hopefully proceed to negotiations.” The Lewises contend that the trial court impliedly found good cause for the delays because it granted the reinstatement on October 3, 2003. The Lewises then filed a First Amended Original Petition and made their first request for service of process on October 28, 2003. Service was effectuated on Mann and AAA on October 31, 2003. The Lewises contend that these events demonstrate their diligence and explain their delay in serving citation. Once the Lewises show an explanation, the burden shifts back to Mann and AAA to show why those explanations are insufficient as a matter of law. See Carter v. MacFadyen, 93 S.W.3d 307, 313 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). Mann and AAA contend that the explanations are insufficient because there was no agreement to postpone service and the Lewises have produced no evidence of the alleged oral agreement. Indeed, Rule 11 provides that “no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed, and filed with the papers as part of the record, or unless it be made in open court and entered of record.” Tex. R. Civ. P. 11. There is no evidence that the agreement was reduced to writing or made in open court. While the Lewises made a bare statement that an agreement existed in their motion to reinstate, there remains no evidence that it was an agreement to postpone service. Not every explanation raises a fact issue about diligence, thereby precluding summary judgment. See Rodriguez v. Tinsman & Houser, Inc., 13 S.W.3d 47, 50 (Tex. App.—San Antonio 1999, pet. denied). A plaintiff’s duty to use diligence continues from the date suit is filed until the date service on the defendant is effectuated. Taylor, 4 S.W.3d at 65. Here, the Lewises concede that they failed to request service when they filed suit, the day before the limitations period expired, in addition to allowing six months to pass before requesting such service. We conclude that this constitutes a lack of due diligence as a matter of law. See Clemons v. Denson, 981 S.W.2d 941, 946 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (recognizing that this Court has previously held that “an unexplained delay for a period of six and one-half months is, as a matter of law, not due diligence in procuring” service of citation); see also Cooke v. Maxam Tool and Supply, Inc., 854 S.W.2d 136, 140 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (concluding that appellants’ “failure to request service at all, combined with the lapse of six months before requesting service, shows a lack of due diligence as a matter of law”). In addition, Mann and AAA contend that Okonkwo admitted in an affidavit to the trial court that he intended to attempt service in July 2003, and that this establishes that the Lewises knew they needed to request service at that time. Okonkwo asserts that service was then delayed because he was “diligently look[ing] for his replacement.” However, it was not until September 2003, that he arranged for Yvonne Okonkwo—an attorney in his office—to take over representation of the Lewises. Even if there initially had been an agreement to postpone service, there is a three-month gap, from July through September, for which no explanation is offered. See Gant, 786 S.W.2d at 260 (noting that Texas courts hold due diligence lacking as a matter of law based on unexplained shorter periods of time); see also Rodriguez, S.W.2d at 48, 51-52 (concluding delay of one month between filing of suit and service of process constitutes lack of diligence). Here, there are no efforts from which to evaluate the reasonableness or diligence. See Rodriguez, 13 S.W.3d at 51. Hence, summary judgment was proper because no genuine issue of fact is raised. Id. We conclude that the suit was barred by the expiration of the limitations period and was not tolled by diligence in effectuating service of citation. We hold that the trial court properly granted summary judgment. Appellants’ sole issue is overruled. CONCLUSION Having determined that the trial court properly granted summary judgment because the Lewises failed to serve Mann and AAA with citation on their original petition, within the limitations period, and then failed to exercise continued due diligence in effectuating service, we affirm the trial court’s judgment. Laura Carter Higley Justice Panel consists of Chief Justice Radack, and Justices Higley and Bland.