Jimenez v. County of Val Verde

993 S.W.2d 167, 1999 WL 140165

Opinions

OPINION

PAUL W. GREEN, Justice.

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court’s judgment in this memorandum opinion. See Tex. RApp. P. 47.1.

The trial court correctly rendered a take-nothing summary judgment against Leonor Jimenez in her slip and fall suit against Val Verde County for the following reasons:

1. Jimenez’s claim was barred by the two year statute of limitations.

2. Jimenez’s cause of action accrued on August 29, 1994, and suit was filed August 15, 1996; however, Val Verde County was not served with citation until April 4,1997. Jimenez blames the process server for the eight-month delay in accomplishing service.

3. Limitations is not tolled merely by filing suit within the limitations period; due diligence must also be exercised in having the defendant served with process. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex.1990). Summary judgment is proper if the defendant is able to show as a matter of law that diligence was not used to effectuate service. Id.

4. “It is the responsibility of the one requesting service, not the process server, to see that service is properly accomplished.” Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 153 (Tex.1994); Tex.R. Civ. P. 99(a). An attorney’s “misplaced reliance on his process server [does] not constitute due diligence” as a matter of law. Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 590 (Tex. App.-Corpus Christi 1994, no writ).

5. Jimenez has thus failed as a matter of law to raise a fact issue on her obligation to show diligence that would avoid the running of limitations.

The judgment is affirmed.

Dissenting opinion by: ALMA L. LÓPEZ, Justice.