Derrick Williams v. Kathleen B. Cleaveland

• Court: Court of Appeals of Texas
• Decided: February 15, 2024
• Docket: 05-22-01363-CV
• Status: Published

Opinion

AFFIRM; and Opinion Filed February 15, 2024.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01363-CV

DERRICK WILLIAMS, Appellant V. KATHLEEN B. CLEAVELAND, Appellee

On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-21-18036

MEMORANDUM OPINION Before Justices Nowell, Miskel, and Kennedy Opinion by Justice Kennedy Derrick Williams appeals a summary judgment order dismissing his

negligence claim against Kathleen B. Cleaveland. In a single issue, Williams urges

the trial court erred in granting summary judgment based on his lack of due diligence

in serving process on Cleaveland. We affirm the trial court’s order granting

Cleaveland summary judgment. Because all issued are settled in law, we issue this

memorandum opinion. TEX. R. APP. P. 47.4. BACKGROUND

Williams and Cleaveland were involved in an automobile accident on

Interstate 35 on December 19, 2019. Williams filed suit on December 16, 2021,

asserting a claim of negligence against Cleaveland. The citation and petition were

served on Cleaveland on July 12, 2022, more than 6 months after limitations ran. In

addition to generally denying the allegations in Williams’ petition, Cleaveland

asserted Williams’ claim was barred by limitations because he failed to effect service

on her within the applicable limitations period.

On September 14, 2022, Cleaveland filed a motion for traditional summary

judgment urging that while Williams timely filed suit, his more than 6-month delay

in attempting service upon her establishes, as a matter of law, a lack of diligence

requiring dismissal of his claim. In support of her motion for summary judgment,

Cleaveland relied on: Plaintiff’s Original Petition, establishing when Williams filed

suit; the District Court Clerk’s Citation issued on December 28, 2021; the District

Court’s Notice of Dismissal for Want of Prosecution dated May 17, 2022, setting

the case for dismissal on June 17, 2022; Williams’ Motion to Retain the case on the

court’s docket, dated June 14, 2022;1 the District Court’s Order Granting Williams’

Motion to Retain; the Affidavit of Service showing Cleaveland was served the

1 In his motion to retain, Williams claimed a process server had made multiple attempts to serve Cleaveland and stated, “Plaintiff needs additional time to have defendant(s) served.” The motion was not verified or supported by an affidavit and, in response to Cleaveland’s motion, Williams did not assert or establish with evidence that a process server made any attempt to serve Cleaveland before July 12, 2022. –2– citation and petition on July 12, 2022; and Cleaveland’s Amended Answer asserting

the affirmative defense of limitations.

In his response to the motion, Williams asserted that he was acting diligently

and as an ordinary prudent person that had recently experienced the death of his

father and that the delay was only due to his extenuating circumstances. In support

of his response, Williams indicated that he was relying on: Plaintiff’s Original

Petition (Exhibit A); Letter to Clerk Requesting Citation and Citation for Defendant

Kathleen B. Cleaveland (Exhibit B); and Clerk’s Citation of Service (Exhibit C).

Attached to his response was Exhibit A—Plaintiff’s Original Petition; and Exhibit

C—an undated Request to Obtain Citation bearing the caption of the case and

stating, “I am requesting a new citation to be issued so service can be performed.”

The response did not include an Exhibit B.

Cleaveland filed a reply urging Williams failed to raise a fact issue in response

to her evidence establishing his claim was barred by limitations.

On November 30, 2022, the trial court signed an order granting

“[Cleaveland’s] Motion for Summary Judgment based on [Williams’] lack of

diligence in serving [Cleaveland]” and ordering that the suit be dismissed with

prejudice. This appeal followed.

–3– DISCUSSION

I. Standard of Review

We review the trial court’s summary judgment decision de novo. Mann

Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.

2009); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In doing

so, we take as true all evidence favorable to the nonmovant and indulge every

reasonable inference and resolve any doubts in favor of the nonmovant. Nixon, 690

S.W.2d at 548–49. Our review is limited to consideration of the evidence presented

to the trial court. Mathis v. Restoration Builders, Inc., 231 S.W.3d 47, 52 (Tex.

App.—Houston [14th Dist.] 2007, no pet.). Statements made in the summary

judgment motion, response and reply are not competent summary judgment

evidence. See Kelly v. Ocwen Loan Servicing, LLC, No. 02-14-00232-CV, 2016 WL

279262, at *3 (Tex. App.—Fort Worth Jan. 14, 2016, pet. denied) (mem. op.)

(statements contained in response is not summary judgment evidence); Morris v.

Unified Hous. Found. Inc., No. 05-13-01425-CV, 2015 WL 4985599, at *6 (Tex.

App.—Dallas Aug. 21, 2015, no pet.) (mem. op.) (statement in summary judgment

response not competent evidence); see also Nicholson v. Mem’l Hosp. Sys., 722

S.W.2d 746, 749 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.) (summary

judgment pleadings do not constitute summary judgment evidence).

–4– II. Applicable Law

A traditional summary judgment motion may be granted when “there is no

genuine issue as to any material fact and the moving party is entitled to judgment as

a matter of law.” TEX. R. CIV. P. 166a(c); Tex. Com. Bank, N.A. v. Grizzle, 96

S.W.3d 240, 252 (Tex. 2002). To defeat a plaintiff’s cause of action on a traditional

motion for summary judgment, a defendant must either conclusively negate at least

one element of each of the plaintiff’s theories of recovery or conclusively establish

each element of an affirmative defense, thereby rebutting plaintiff’s claim. Pollard

v. Hanschen, 315 S.W.3d 636, 638 (Tex. App.—Dallas 2010, no pet.). A matter is

conclusively established if ordinary minds could not differ as to the conclusion to be

drawn from the evidence. Kastner v. Jenkens & Gilchrist, P.C., 231 S.W.3d 571,

577 (Tex. App.—Dallas 2007, no pet.).

Here, Cleaveland sought traditional summary judgment on her affirmative

defense of limitations. A suit for personal injuries must be brought within two years

from the time the cause of action accrues. TEX. CIV. PRAC. & REM. CODE

§ 16.003(a). But a timely filed suit will not interrupt the running of limitations unless

the plaintiff exercises due diligence in the issuance and service of citation. Proulx

v. Wells, 235 S.W.3d 213, 215 (Tex. 2007). If service is diligently effected after

limitations has expired, the date of service will relate back to the date of filing. Id.

The duty to exercise diligence continues until service of process is achieved. Broom

v. MacMaster, 992 S.W.2d 659, 664 (Tex. App.— Dallas 1999, no pet.).

–5– In Proulx, the Texas Supreme Court clarified that once a defendant has

affirmatively pleaded the limitations defense and shown that service was effected

after limitations expired, the burden shifts to the plaintiff to explain the delay.

Proulx, 235 S.W.3d at 216; see also Mauricio v. Castro, 287 S.W.3d 476, 479 (Tex.

App.—Dallas 2009, no pet.). Thus, if the defendant establishes service was effected

after limitations ran, the plaintiff then has the burden to present evidence regarding

the efforts that were made to serve the defendant and to explain every lapse in effort

or period of delay. Proulx, 235 S.W.3d at 216 (citing Gant v. Deleon, 786 S.W.2d

259, 260 (Tex. 1990)); Mauricio, 287 S.W.3d at 479. If the plaintiff’s explanation

for the delay raises a material fact issue concerning the diligence of service efforts,

the burden shifts back to the defendant to conclusively show why, as a matter of law,

the explanation is insufficient. Proulx, 235 S.W.3d at 216 (citing Zale Corp. v.

Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975)). In some instances, the plaintiff’s

explanation may be legally improper to raise the diligence issue and the defendant

will bear no burden at all. Id.

III. Application of Law to Facts

Williams’ claim accrued when the accident occurred on December 19, 2019,

and therefore, the applicable limitations period expired on December 19, 2021.

Cleaveland presented summary judgment evidence establishing Williams filed suit

on December 16, 2021, and she was served with process over six months later on

July 12, 2022. Accordingly, Cleaveland fulfilled her initial burden of establishing

–6– service was effected after the expiration of the limitations period. See Proulx, 235

S.W.3d at 216. The burden then shifted to Williams to present evidence regarding

the efforts he made to serve Cleaveland, and to explain every lapse in effort or period

of delay. Id.

To determine if the plaintiff has raised a fact issue concerning his exercise of

diligence, we examine whether the plaintiff acted as an ordinarily prudent person

would have acted under the same or similar circumstances, and whether he acted

diligently in effecting service up until the time the defendant was served. See

Quezada v. Fulton, No. 05-13-01545-CV, 2014 WL 8060589, at *2 (Tex. App.—

Dallas Dec. 18, 2014, no pet.) (mem. op.); Tate v. Beal, 119 S.W.3d 378, 381 (Tex.

App.—Fort Worth 2003, pet. denied).

Williams’ response to Cleaveland’s motion for summary judgment contained

two exhibits as evidence: a copy of his Original Petition and a copy of his Motion to

Obtain a Copy of Citation. Neither of these exhibits raise a fact issue as to diligence

because they provide no explanation for the delay between December 16, 2021

(when the lawsuit was filed), and July 12, 2022 (when Cleaveland was served). The

only explanation for the delay is set forth in the body of his response indicating he

had recently experienced the death of his father and that the delay was only due to

his extenuating circumstances. While we recognize the loss of a parent can be a

traumatic event, Williams’ unsworn statement is not summary judgment evidence,

and, nevertheless, it is insufficient to raise a fact issue on diligence during the period

–7– between filing and service, as it is not an explanation of the diligence exercised, but

rather an explanation as to why diligence was not exercised. See City of Houston v.

Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) (response to motion for

summary judgment motion is a pleading and does not, standing alone, constitute

competent summary judgment evidence); see also Morris, 2015 WL 4985599, at *6

(“But statements in a summary judgment response are not competent evidence, even

if the response is verified.”).

We recognize that the existence of diligence is usually a question of fact. See

Perry v. Kroger Stores Store No. 119, 741 S.W.2d 533, 534 (Tex. App.—Dallas

1987, no writ). However, if no explanation consistent with due diligence is offered,

the reasonableness of a plaintiff’s delay cannot be factually determined. See id.;

Liles v. Phillips, 677 S.W.2d 802, 809 (Tex. App.—Fort Worth 1984, writ ref’d

n.r.e.). As to evidence concerning the issuance of citation and service of process on

Cleaveland, the record contains only the District Court Clerk’s Citations, showing

citations issued on December 28, 2021, and on July 11, 2022, and the affidavit of

service, which established the citation and petition were served on Cleaveland on

July 12, 2022, at 718 Mulberry Dr., Athens, Texas 75751, the same address

identified in Williams’ Original Petition as the address for service of process, that

was filed almost seven months before. See Mauricio, 287 S.W.3d at 480 (noting

Mauricio was served at his home, which bore the same address as that stated in

Castro’s petition). Williams did not present any evidence that he attempted to serve

–8– Cleaveland at any time prior to July 12, 2022, nor did he provide a verified or sworn

explanation for the more than six-month delay in serving her. On the record before

us, we are compelled to conclude that Williams failed to exercise due diligence as a

matter of law. See, e.g., Ashley v. Hawkins, 293 S.W.3d 175, 180–81 (Tex. 2009)

(“We agree with the trial court and hold that, as a matter of law, Hawkins’ responses

do not create a fact issue as to diligence, as this eight-month gap in time is left

unexplained.”); Webster v. Thomas, 5 S.W.3d 287, 291 (Tex. App.—Houston [14th

Dist.] 1999, no pet.) (holding no due diligence as a matter of law when evidence

showed plaintiff’s actions over four months were not designed to procure the

issuance and service of citation); Butler v. Ross, 836 S.W.2d 833, 836 (Tex. App.—

Houston [1st Dist.] 1992, no writ) (holding five-and-a-half months of inactivity and

no service efforts between failed attempts at the wrong address and proper service

at the correct address constituted a lack of due diligence); Hansler v. Mainka, 807

S.W.2d 3, 5 (Tex. App.—Corpus Christi–Edinburg 1991, no writ) (stating that

request for service five months after suit was filed affirmatively demonstrated lack

of due diligence). Accordingly, the trial court did not err by granting Cleaveland’s

motion for summary judgment. We overrule Williams’ sole issue.

–9– CONCLUSION

We affirm the trial court’s judgment.

/Nancy Kennedy/ NANCY KENNEDY 221363F.P05 JUSTICE

–10– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DERRICK WILLIAMS, Appellant On Appeal from the 134th Judicial District Court, Dallas County, Texas No. 05-22-01363-CV V. Trial Court Cause No. DC-21-18036. Opinion delivered by Justice KATHLEEN B. CLEAVELAND, Kennedy. Justices Nowell and Miskel Appellee participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee KATHLEEN B. CLEAVELAND recover her costs of this appeal from appellant DERRICK WILLIAMS.

Judgment entered this 15th day of February 2024.

–11–