Jason Barger, an Individual v. DGL Group, Ltd D/B/A Hover-1, and John Does 1-100, Inclusive

• Court: Court of Appeals of Texas
• Decided: July 30, 2024
• Docket: 07-23-00270-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-23-00270-CV

JASON BARGER, AN INDIVIDUAL, APPELLANT

V.

DGL GROUP, LTD D/B/A HOVER-1, AND JOHN DOES 1-100, INCLUSIVE, APPELLEES

On Appeal from the 99th District Court Lubbock County, Texas Trial Court No. DC-2022-CV-1220, Honorable J. Phillip Hays, Presiding

July 30, 2024 MEMORANDUM OPINION Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

This appeal concerns whether the statute of limitations was tolled in a product

liability suit when the defendant was not served with a citation until 148 days after the

limitations period expired. Appellant, Jason Barger, was allegedly injured on September

25, 2020, by a product manufactured by Appellee, DGL Group, Ltd. d/b/a Hover-1 (DGL).1

He filed suit on September 19, 2022, six days before the statute of limitations expired.

1 Appellant does not dispute that this is the date his cause of action accrued. However, DGL was not served until February 14, 2023, nearly five months later. The trial

court granted DGL’s motion for summary judgment on limitations grounds.

On appeal, Barger argues that (1) a 148-day delay in service is not unreasonable

as a matter of law, (2) DGL failed to specify what an ordinarily prudent person in Barger’s

position would have done, and (3) DGL was not unduly prejudiced by the delay. We affirm

the trial court’s judgment.

Analysis

We review a trial court’s summary judgment de novo. See Mann Frankfort Stein

& Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). In a traditional motion

for summary judgment, the movant has the burden to show there is no genuine issue of

material fact and that it is entitled to judgment as a matter of law. Id. A defendant moving

for summary judgment on an affirmative defense must conclusively prove all elements of

the defense. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).

A person must “bring suit” within two years after the cause of action accrues. See

TEX. CIV. PRAC. & REM. CODE § 16.003(a).2 As the Supreme Court of Texas has reiterated,

the phrase “bringing suit” means more than simply filing the plaintiff’s petition; it also

includes completing proper service of process on the defendant:

[T]o “bring suit” is a term of art reflecting the traditional requirements to satisfy a statute of limitations: filing the petition and achieving service of

2 “Texas courts have held that this two-year window applies to products-liability actions.” Gutierrez v. Ethicon, Inc., 535 F. Supp. 3d 608, 619 (W.D. Tex. 2021) (citing Heckel v. Allen Samuels Chevrolet, No. 14-07-00254-CV, 2008 Tex. App. LEXIS 705, *9–10 (Tex. App.—Houston [14th Dist.] Aug. 28, 2008, no pet.) (mem. op.).

2 process. Timeliness for just one will not do. Thus, while service follows filing, both are prerequisites to “bringing” the suit. The suit is not “brought,” and the statute of limitations is not satisfied, until the plaintiff achieves both steps.

Tex. State Univ. v. Tanner, 689 S.W.3d 292, 300 (Tex. 2024). Applying these terms to

the present case, the undisputed evidence shows even though suit was filed six days

before the limitations period ran, it was not brought until February 14, 2023, approximately

four months and twenty days after limitations had expired. Per the statute, Barger’s

lawsuit would be barred by limitations. TEX. CIV. PRAC. & REM. CODE § 16.003(a).

However, our analysis does not end here. Recognizing that some defendants can

be difficult to serve, Texas courts have sometimes used a common-law workaround to

mitigate the potentially harsh consequences of a limitations deadline. See Tanner, 689

S.W.3d at 299 (“The common law thus developed a sensible balance, not to undermine

but to effectuate the service requirement.”). Courts may permit an otherwise late-filed

lawsuit to avoid the limitations bar if the plaintiff demonstrates due diligence in serving the

defendant. Id.; Prouix v. Wells, 235 S.W.3d 213, 215 (Tex. 2007). To use this exception,

Barger must prove he “acted as an ordinarily prudent person would have acted under the

same or similar circumstances and was diligent up until the time the defendant was

served.” Proulx, 235 S.W.3d at 216; Hicks v. Simmons, No. 07-16-00344-CV, 2017 Tex.

App. LEXIS 4972, at *1–2 (Tex. App.—Amarillo May 31, 2017, no pet.) (mem. op.).

Determining whether a plaintiff was diligent in securing citation and service involves

examining whether the plaintiff offered an explanation for every delay, “and not a

conclusory or cursory one, either.” Tanner, 689 S.W.3d at 299.

3 Barger’s summary judgment evidence shows that after filing suit six days before

limitations expired, his counsel became confused upon discovering that DGL was not

registered with the Texas Secretary of State to do business in Texas. Under the Business

and Commerce Code, the Secretary of State is deemed to be DGL’s agent for service

given these circumstances. TEX. BUS. ORGS. CODE § 5.251 (“The secretary of state is an

agent of an entity for purposes of service of process, notice, or demand on the entity if . .

. [the entity is a foreign-filed entity] and transacts business in this state without being

registered as required by Chapter 9.”). Barger elected to pursue service on DGL by other

means. On November 8, 2022, his counsel requested a citation be issued to obtain

service on DGL. After receiving a Notice of Intent to Dismiss his suit due to a lack of

service in February 2023, efforts appear to have been renewed to locate and serve DGL’s

agent. Accordingly, after locating a summons related to a civil suit against DGL in federal

district court, counsel obtained a service address for DGL’s agent. DGL was served on

February 14, 2023.

To summarize: The 148 days between filing the suit and completing service reveal

only one attempt by Barger to serve DGL in Texas (November 2022) and one successful

effort in New Jersey (February 2023). Barger provides no explanation for the delays in

locating and serving DGL, nor does he explain why he did not pursue other available

alternative service methods. While diligence is typically a question of fact, a lack of

4 diligence can be established as a matter of law “when one or more lapses between

service efforts are unexplained or patently unreasonable.” Proulx, 235 S.W.3d at 216.3

To avoid a take-nothing judgment, Barger was required to “present evidence

regarding the efforts that were made to serve the defendant, and to explain every lapse

in effort or period of delay.” Tanner, 689 S.W.3d at 302 (emphasis in original) (cleaned

up). His failure to provide explanations for the periods of delay in serving DGL

demonstrates a lack of due diligence as a matter of law. The trial court did not err in

rendering summary judgment in favor of DGL. We overrule Barger’s three issues.

Conclusion

The trial court’s judgment is affirmed.

Lawrence M. Doss Justice

3 See also Tanner, 689 S.W.3d at 299 (recognizing that the standard for proving diligence may vary

depending on the difficulty in serving the defendant: “the easier it is to achieve service, the harder it will be for a plaintiff to establish diligence during a substantial (or even minor) delay.”).