Opinion issued January 25, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00584-CV ——————————— SEALY IDV THOMPSON 10, LLC, Appellant V. HARRIS COUNTY APPRAISAL DISTRICT, Appellee
On Appeal from the 152nd Judicial District Court Harris County, Texas Trial Court Case No. 2020-52735
MEMORANDUM OPINION
Appellant Sealy IDV Thompson 10, LLC (“Sealy”) appeals the trial court’s
summary judgment order dismissing Sealy’s appeal of the Harris County Appraisal
District’s property valuation under the Texas Tax Code. Sealy raises two issues, (1)
a plaintiff need not show diligent service to perfect an appeal under Chapter 42 of the Tax Code and (2) even if diligence is required, Sealy raised a genuine issue of
fact about diligence so granting summary judgment was error. Because Sealy failed
to timely serve HCAD and failed to raise a genuine issue of fact in opposition to
HCAD’s summary judgment motion, we affirm.
Background
In September 2020, Sealy sued HCAD, contending that Sealy’s property was
excessively and unequally appraised for tax year 2020. Sealy filed its suit within the
60-day period required by the tax code, but it did not serve HCAD with citation until
11 months later, in August 2021. HCAD filed its answer later that month, asserting
both a general denial and an affirmative defense stating, “Defendant has not been
timely served in this matter therefore, Plaintiff’s suit is barred.”
HCAD moved for summary judgment in April 2022, asserting that Sealy’s
untimely service did not relate back to the date of filing because Sealy failed to
exercise due diligence in serving its petition. Appellant opposed the motion and
responded. HCAD replied in July 2022. The trial court granted HCAD’s motion for
summary judgment in July 2022.
Summary Judgment
The parties agree that Sealy timely filed suit, but dispute whether diligent
service by Sealy was required. Sealy contends that because diligence is not a
2 requirement under section 42.21, the trial court erred by requiring proof of diligence.
And even if it is required, Sealy raised a genuine issue of fact about timely service.
A. Standard of Review
We review a trial court’s ruling on a motion for summary judgment de novo.
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.
2009). “A party moving for traditional summary judgment has the burden to prove
that there is no genuine issue of material fact and that it is entitled to judgment as a
matter of law.” SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 641 (Tex. 2015) (citing
TEX. R. CIV. P. 166a(c)). “When a defendant moves for summary judgment, it must
either (1) disprove at least one essential element of the plaintiff’s cause of action or
(2) plead and conclusively establish each essential element of its affirmative defense,
thereby defeating the plaintiff’s cause of action.” Surety Bonding Co. of Am. v. Auto.
Accept. Corp., 674 S.W.3d 580, 587 (Tex. App.—Houston [1st Dist.] 2023, no pet.).
B. Analysis
This Court has held that failure to timely serve the opposing party is an
affirmative defense that may be raised in a motion for summary judgment. See
Bilinsco Inc. v. Harris Cty. Appraisal Dist., 321 S.W.3d 648, 651 (Tex. App.—
Houston [1st Dist.] 2010, pet. denied) (treating argument that plaintiff failed to
timely serve HCAD as an affirmative defense raised in a motion for summary
judgment). In Bilinsco, the plaintiff sued HCAD to challenge the valuation of the
3 plaintiff’s property. Id. at 650. HCAD moved for traditional summary judgment,
arguing that the plaintiff failed to timely serve it so the trial court never acquired
jurisdiction. Id. We treated the 10-month delay of service as an affirmative defense.
Id. at 651 (citing Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007) (per curiam)).
The facts here mirror Bilinsco. Sealy sued HCAD before the 60-day deadline
in the tax code, challenging the valuation of Sealy’s property. See TEX. TAX CODE §
42.21(a). HCAD answered, asserting a general denial and an affirmative defense of
untimely service. HCAD then moved for summary judgment, arguing that the 11-
month delay in service barred Sealy’s suit. Absent contrary direction from the Texas
Supreme Court, we are bound to follow our precedent. See Mitschke v. Borromeo
LLC, 645 S.W.3d 251, 256–57 (Tex. 2022) (discussing horizontal stare decisis).
Satisfied that the trial court correctly considered the affirmative defense raised in
HCAD’s motion for summary judgment, we now review the substance of that
defense.
Summary judgment on a limitations affirmative defense involves shifting
burdens of proof. Proulx, 235 S.W.3d at 215–16. When a plaintiff files a petition
within the limitations period, service outside the limitations period is valid only if
the plaintiff exercised diligence in obtaining service. Ashley v. Hawkins, 293 S.W.3d
175, 179 (Tex. 2009); see also Proulx, 235 S.W.3d at 215 (“a timely filed suit will
4 not interrupt the running of limitations unless the plaintiff exercises due diligence in
the issuance and service of citation”).
Once a defendant pleads the limitations defense and shows that service was
untimely, the burden shifts to the plaintiff to show diligence. Proulx, 235 S.W.3d at
216. “Diligence is determined by asking ‘whether the plaintiff 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.’” Ashley, 293 S.W.3d at 179
(quoting Proulx, 235 S.W.3d at 216). “Although a fact question, a plaintiff’s
explanation may demonstrate a lack of diligence as a matter of law, ‘when one or
more lapses between service efforts are unexplained or patently unreasonable.’” Id.
HCAD pleaded the defense of limitations. And it is undisputed that Sealy did
not serve HCAD until 11 months after filing suit. Thus, Sealy had the burden to
present evidence of its efforts to serve HCAD, and to explain every delay and lapse
in effort. See Bilinsco, 321 S.W.3d at 652 (citing Proulx, 235 S.W.3d at 216). Sealy
contends that because the suit was filed during the COVID-19 pandemic, any delay
was excusable and offered an affidavit from its trial attorney. The affidavit stated
that between September 1, 2020, and July 27, 2021, (1) there were delays related to
COVID-19 because of Sealy’s attorney’s office staff working remotely, and (2)
Sealy’s counsel filed four new cases during the same time period and was unaware
that service of citation had not been achieved. The World Health Organization
5 declared a public health emergency based on COVID-19 in January 2020, and the
Texas Governor’s proclamation along with the First Emergency Order Regarding
the COVID-19 State of Disaster followed two months later. See The Governor of the
State of Texas, Proclamation No. 41-3720, 45 Tex. Reg. 2087, 2095 (2020); First
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Opinion issued January 25, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00584-CV ——————————— SEALY IDV THOMPSON 10, LLC, Appellant V. HARRIS COUNTY APPRAISAL DISTRICT, Appellee
On Appeal from the 152nd Judicial District Court Harris County, Texas Trial Court Case No. 2020-52735
MEMORANDUM OPINION
Appellant Sealy IDV Thompson 10, LLC (“Sealy”) appeals the trial court’s
summary judgment order dismissing Sealy’s appeal of the Harris County Appraisal
District’s property valuation under the Texas Tax Code. Sealy raises two issues, (1)
a plaintiff need not show diligent service to perfect an appeal under Chapter 42 of the Tax Code and (2) even if diligence is required, Sealy raised a genuine issue of
fact about diligence so granting summary judgment was error. Because Sealy failed
to timely serve HCAD and failed to raise a genuine issue of fact in opposition to
HCAD’s summary judgment motion, we affirm.
Background
In September 2020, Sealy sued HCAD, contending that Sealy’s property was
excessively and unequally appraised for tax year 2020. Sealy filed its suit within the
60-day period required by the tax code, but it did not serve HCAD with citation until
11 months later, in August 2021. HCAD filed its answer later that month, asserting
both a general denial and an affirmative defense stating, “Defendant has not been
timely served in this matter therefore, Plaintiff’s suit is barred.”
HCAD moved for summary judgment in April 2022, asserting that Sealy’s
untimely service did not relate back to the date of filing because Sealy failed to
exercise due diligence in serving its petition. Appellant opposed the motion and
responded. HCAD replied in July 2022. The trial court granted HCAD’s motion for
summary judgment in July 2022.
Summary Judgment
The parties agree that Sealy timely filed suit, but dispute whether diligent
service by Sealy was required. Sealy contends that because diligence is not a
2 requirement under section 42.21, the trial court erred by requiring proof of diligence.
And even if it is required, Sealy raised a genuine issue of fact about timely service.
A. Standard of Review
We review a trial court’s ruling on a motion for summary judgment de novo.
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.
2009). “A party moving for traditional summary judgment has the burden to prove
that there is no genuine issue of material fact and that it is entitled to judgment as a
matter of law.” SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 641 (Tex. 2015) (citing
TEX. R. CIV. P. 166a(c)). “When a defendant moves for summary judgment, it must
either (1) disprove at least one essential element of the plaintiff’s cause of action or
(2) plead and conclusively establish each essential element of its affirmative defense,
thereby defeating the plaintiff’s cause of action.” Surety Bonding Co. of Am. v. Auto.
Accept. Corp., 674 S.W.3d 580, 587 (Tex. App.—Houston [1st Dist.] 2023, no pet.).
B. Analysis
This Court has held that failure to timely serve the opposing party is an
affirmative defense that may be raised in a motion for summary judgment. See
Bilinsco Inc. v. Harris Cty. Appraisal Dist., 321 S.W.3d 648, 651 (Tex. App.—
Houston [1st Dist.] 2010, pet. denied) (treating argument that plaintiff failed to
timely serve HCAD as an affirmative defense raised in a motion for summary
judgment). In Bilinsco, the plaintiff sued HCAD to challenge the valuation of the
3 plaintiff’s property. Id. at 650. HCAD moved for traditional summary judgment,
arguing that the plaintiff failed to timely serve it so the trial court never acquired
jurisdiction. Id. We treated the 10-month delay of service as an affirmative defense.
Id. at 651 (citing Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007) (per curiam)).
The facts here mirror Bilinsco. Sealy sued HCAD before the 60-day deadline
in the tax code, challenging the valuation of Sealy’s property. See TEX. TAX CODE §
42.21(a). HCAD answered, asserting a general denial and an affirmative defense of
untimely service. HCAD then moved for summary judgment, arguing that the 11-
month delay in service barred Sealy’s suit. Absent contrary direction from the Texas
Supreme Court, we are bound to follow our precedent. See Mitschke v. Borromeo
LLC, 645 S.W.3d 251, 256–57 (Tex. 2022) (discussing horizontal stare decisis).
Satisfied that the trial court correctly considered the affirmative defense raised in
HCAD’s motion for summary judgment, we now review the substance of that
defense.
Summary judgment on a limitations affirmative defense involves shifting
burdens of proof. Proulx, 235 S.W.3d at 215–16. When a plaintiff files a petition
within the limitations period, service outside the limitations period is valid only if
the plaintiff exercised diligence in obtaining service. Ashley v. Hawkins, 293 S.W.3d
175, 179 (Tex. 2009); see also Proulx, 235 S.W.3d at 215 (“a timely filed suit will
4 not interrupt the running of limitations unless the plaintiff exercises due diligence in
the issuance and service of citation”).
Once a defendant pleads the limitations defense and shows that service was
untimely, the burden shifts to the plaintiff to show diligence. Proulx, 235 S.W.3d at
216. “Diligence is determined by asking ‘whether the plaintiff 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.’” Ashley, 293 S.W.3d at 179
(quoting Proulx, 235 S.W.3d at 216). “Although a fact question, a plaintiff’s
explanation may demonstrate a lack of diligence as a matter of law, ‘when one or
more lapses between service efforts are unexplained or patently unreasonable.’” Id.
HCAD pleaded the defense of limitations. And it is undisputed that Sealy did
not serve HCAD until 11 months after filing suit. Thus, Sealy had the burden to
present evidence of its efforts to serve HCAD, and to explain every delay and lapse
in effort. See Bilinsco, 321 S.W.3d at 652 (citing Proulx, 235 S.W.3d at 216). Sealy
contends that because the suit was filed during the COVID-19 pandemic, any delay
was excusable and offered an affidavit from its trial attorney. The affidavit stated
that between September 1, 2020, and July 27, 2021, (1) there were delays related to
COVID-19 because of Sealy’s attorney’s office staff working remotely, and (2)
Sealy’s counsel filed four new cases during the same time period and was unaware
that service of citation had not been achieved. The World Health Organization
5 declared a public health emergency based on COVID-19 in January 2020, and the
Texas Governor’s proclamation along with the First Emergency Order Regarding
the COVID-19 State of Disaster followed two months later. See The Governor of the
State of Texas, Proclamation No. 41-3720, 45 Tex. Reg. 2087, 2095 (2020); First
Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket Nos.
20-9042, 596 S.W.3d 265, 265–66 (Tex. 2020).
Assuming COVID-19’s effects delayed service after January 2020, Sealy
presented no evidence showing that Sealy or its counsel asked about the status of
service during this nearly 11-month period between filing the case in September
2020 and finally asking about service in July 2021. It is not reasonably diligent to
allow more than 10 months to pass after filing suit without affirmatively checking
the status of service until months after the limitations period expired. Jenkins v.
Taylor, No. 14-21-00175-CV, 2022 WL 1463797, at *3–*4 (Tex. App.—Houston
[14th Dist.] May 10, 2022, no pet.) (mem. op.) (untimely service when suit was filed
before COVID-19 pandemic and service did not occur until 11 months after statute
of limitations and six months after governor’s public health emergency declaration);
Stoney v. Gurmatakis, No. 01-09-00733-CV, 2010 WL 1840247, at *3 (Tex. App.—
Houston [1st Dist.] May 6, 2010, no pet.) (mem. op.) (plaintiff failed to show
diligence in part because she failed to explain approximately two-month delay in
inquiring with clerk’s office about procuring citation); see also Farris v. Evans, No.
6 01-20-00165-CV, 2020 WL 3969666, at *4 (Tex. App.—Houston [1st Dist.] July
14, 2020, no pet. (citing Slagle v. Prickett, 345 S.W.3d 693, 698 (Tex. App.—El
Paso 2011, no pet.) (“[W]hen a defendant complains of lack of due diligence in
service of process, the plaintiff must explain what steps he took to obtain service,
not explain why he did nothing.”)).
Sealy also contends that under the Texas Supreme Court’s Emergency Orders,
all deadlines, including limitations periods, were tolled. But such tolling was not
automatic. See First Emergency Order Regarding the COVID-19 State of Disaster,
596 S.W.3d 265 (Tex. 2020) (order dated March 13, 2020, stating that courts “may
. . . [m]odify or suspend any and all deadlines and procedures, whether prescribed
by statute, rule, or order”). Sealy never sought an extension under the Emergency
Orders to serve its petition on HCAD. See, e.g., Cweren v. Eureka Multifamily Grp.,
L.P., No. 01-21-00470-CV, 2023 WL 2977755, at *11 (Tex. App.—Houston [1st
Dist.] Apr. 18, 2023, no pet. h.) (mem. op.) (collecting cases stating no authority to
rely on the Emergency Orders after applicable deadline has passed).
Thus, Sealy has not shown reasonable diligence in attempting to serve HCAD
from September 2020 to July 2021. Although Sealy filed suit within the limitations
period, Sealy’s claim is barred by HCAD’s limitations defense because Sealy did
not achieve service until several months after the limitations period expired and
Sealy did not present evidence reasonably explaining the delays in serving HCAD
7 to create a genuine issue of material fact. See Bilinsco, 321 S.W.3d at 653–54;
Jenkins, 2022 WL 1463797, at *4. Because the trial court did not err in granting
summary judgment on limitations grounds, we overrule Sealy’s issues.
Conclusion
We affirm the trial court’s judgment.
Sarah Beth Landau Justice
Panel consists of Chief Justice Adams and Justices Landau and Rivas-Molloy.