Sharp v. Kroger Texas L.P.

500 S.W.3d 117, 2016 Tex. App. LEXIS 7760, 2016 WL 3965113
CourtCourt of Appeals of Texas
DecidedJuly 21, 2016
DocketNO. 14-15-00784-CV
StatusPublished
Cited by26 cases

This text of 500 S.W.3d 117 (Sharp v. Kroger Texas L.P.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sharp v. Kroger Texas L.P., 500 S.W.3d 117, 2016 Tex. App. LEXIS 7760, 2016 WL 3965113 (Tex. Ct. App. 2016).

Opinions

OPINION

Martha Hill Jamison, Justice

This is an appeal from the trial court’s grant of summary judgment in favor of appellee Kroger Texas L.P. based on appellant Delores Sharp’s failure to exercise due diligence in procuring citation and effectuating service of process on Kroger before the two-year statute of limitations expired. We affirm.

Background

On April 15, 2013, Sharp allegedly was injured at Kroger’s grocery store. Sharp filed suit on November 19, 2014. The statute of limitations expired on April 15, 2015. Sharp asked the district court clerk to issue citation on April 27, 2015, twelve days after, the expiration of the statute of limitations, and five months and eight days after Sharp filed her petition.1 Service on Kroger was effected on May 12, 2015.

[119]*119Kroger answered, pleading the affirmative defense of limitations, and thereafter filed a motion for summary judgment on the ground that Sharp had not served Kroger before the statute of limitations expired. In her response, Sharp argued that “the delay between filing the case and issuing citation was in the hopes that the parties could work together to settle the matter.” The only evidence attached to the response was a letter from Kroger’s claims representative sent to Sharp’s attorney thirteen days prior to the expiration of the statute of limitations in which the claims representative requested radiology films “to properly evaluate liability.” The trial court granted Kroger’s motion and denied Sharp’s motion for new trial.

Discussion

In her sole issue on appeal, Sharp challenges the trial court’s grant of summary judgment, contending that she used due diligence in effecting service on Kroger within 27 days after the statute of limitations expired and the parties’ attempt to settle the matter justified her delay in effecting service. We disagree.

We review de novo the trial court’s grant of summary judgment. 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 of establishing that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Id. (citing Tex. R. Civ. P. 166a(c)). When a defendant moves for summary judgment on an affirmative defense, it must conclusively prove all the essential elements of his defense as a matter of law, leaving no issues of material fact. Frost Nat’l Bank v. Burge, 29 S.W.3d 580, 587 (Tex.App.— Houston [14th Dist.] 2000, no pet.). We consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See Fielding, 289 S.W.3d at 848. The evidence raises a genuine issue of fact if reasonable and fair-minded jurors.could differ in their conclusions in light of all of the summary judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d.754, 755 (Tex.2007) (per curiam).

A suit for personal injuries must be brought within two years from the time the cause of action accrues. See 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. 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. Id. at 216. Thus, it is the plaintiff’s 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. Id. But if the plaintiffs 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. Id.

It is undisputed that Sharp filed suit before the statute of limitations expired [120]*120but did not request citation or effect service on Kroger until after the statute of limitations expired. Kroger pleaded the affirmative defense of limitations. See id. The burden then shifted to Sharp to demonstrate due diligence as to every period of delay in procuring citation and effecting service on Kroger. See id.

Diligence Measured from Filing of Lawsuit. As an initial matter, we address the applicable time period. Relying on two supreme court cases, Sharp contends that diligence in obtaining service is measured from the expiration of the statute of limitations and not from the date of filing of the lawsuit. See id.; Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex.1990). However, this reliance is misplaced. These cases reiterate the longstanding rule that the measure of diligence begins from the time the suit is filed and an explanation is needed for every period of delay. See Proulx, 235 S.W.3d at 216 (analyzing period of delay “between the filing of suit and service of citation”); Gant, 786 S.W.2d at 260 (measuring periods of delay from date suit was filed); see also Tate v. Beal, 119 S.W.3d 378, 380 (Tex.App.—Fort Worth 2003, pet. denied) (“The duty to exercise diligence is a continuous one, extending from the date suit is filed until service is obtained.”).

In Proulx, the plaintiff filed suit approximately 20 days before the statute of limitations expired. 235 S.W.3d at 214. Citation was issued the day before, limitations expired, and the plaintiff began trying to serve the defendant with process the next day. Id. The supreme court concluded that the defendant failed to conclusively establish plaintiffs explanation was insufficient when plaintiff made thirty service attempts over the course of nine months to five different addresses while the defendant was actively avoiding service. Id. at 217. Proulx is distinguishable from the case at hand because Sharp did not request issuance of citation until several months after the lawsuit was filed and almost two weeks after statute of limitations had expired and there is no evidence that Kroger was avoiding service.

In Gant, the supreme court considered the cumulative period between the time the plaintiff filed the lawsuit and successfully accomplished service on the defendant after the expiration of the statute of limitations, focusing on the plaintiffs unexplained delay in obtaining service. 786 S.W.2d at 260. The court ultimately held that the plaintiff failed to use due diligence. Id. We similarly must analyze Sharp’s delay from the time the suit was filed until she requested citation and effected service.

Due Diligence Lacking as a Mattpr of Law.

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Cite This Page — Counsel Stack

Bluebook (online)
500 S.W.3d 117, 2016 Tex. App. LEXIS 7760, 2016 WL 3965113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sharp-v-kroger-texas-lp-texapp-2016.