Veronica Acosta v. Nathaniel Martinez

• Court: Court of Appeals of Texas
• Decided: February 3, 2022
• Docket: 13-20-00185-CV
• Status: Published

Opinion

NUMBER 13-20-00185-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

VERONICA ACOSTA, Appellant,

v.

NATHANIEL MARTINEZ, Appellee.

On appeal from the 111th District Court of Webb County, Texas.

MEMORANDUM OPINION Before Justices Hinojosa, Tijerina, and Silva Memorandum Opinion by Justice Tijerina

Appellant Veronica Acosta appeals the trial court’s granting of summary judgment

in favor of appellee Nathaniel Martinez based on a limitations defense. By four issues,

Acosta argues the trial court erred in granting the motion because: (1) it considered

evidence outside the record; (2) the district clerk failed to comply with Texas Rules of Civil

Procedure Rule 99; and (3–4) her diligence in obtaining citation was a material fact issue precluding summary judgment. We affirm.1

I. BACKGROUND

On August 30, 2019, Acosta sued Martinez seeking damages for injuries she

sustained in a motor vehicle accident that occurred on September 28, 2017. On

September 4, 2019, the district clerk issued citation but held citation pending additional

copies of the petition from Acosta. On November 15, 2019, Acosta mailed the requested

copies to the district clerk. Ten days later, the district clerk mailed citation to Acosta, and

Acosta served Martinez with process on December 3, 2019. On December 20, 2019,

Martinez filed a response generally denying Acosta’s claim and asserting the statute of

limitations barred Acosta’s claims against him as a matter of law.

On February 3, 2020, Martinez filed a motion for summary judgment. Martinez

asserted that Acosta failed to timely serve him with suit; therefore, Acosta’s claims are

subject to the two-year statute of limitations and should be dismissed with prejudice as

she did not timely file suit within that time. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 16.003(a) (explaining that in general, a plaintiff must bring a personal-injury claim within

two years of “day the cause of action accrues”). To support his motion, Martinez attached

the following: (1) Acosta’s original petiton, (2) the court clerk’s register of actions; (3) a

civil process request form; (4) a letter dated November 15, 2019 from Acosta to the district

clerk requesting that the district clerk mail citation and the additional copies as requested

1 This appeal was transferred to this Court from the Fourth Court of Appeals in San Antonio by order of the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001.

2 by the clerk’s offie; (5) an affidavit of service affirming process of service on December 3,

2020; (6) his response and general denial; and (7) requests for admissions and

objections.

Acosta responded asserting that summary judgment is improper because Martinez

failed to prove that Acosta was not diligent in obtaining service on him. She attached an

affidavit from her counsel’s paralegal wherein he averred that he contacted the district

clerk’s office on at least two occasions between September 4, 2019, and November 25,

2019, requesting status of citation. Martinez responded stating that Acosta failed to

provide the district clerk the necessary copies to serve him with process, and as a result,

lacked due diligence as a matter of law. Following a hearing, the trial court granted

Martinez’s summary judgment. This appeal followed.

II. SUMMARY JUDGMENT

We address Acosta’s third and fourth issues first because they are dispostive.

Acosta argues the trial court erred in granting Martinez’s summary judgment motion

because her diligence in obtaining a certificate from the district clerk was a material fact

issue precluding summary judgment, and she acted reasonably under the circumstances.

A. Standard of Review

We review the trial court’s grant of a motion for summary judgment de novo. Mann

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

reviewing either a no-evidence or traditional summary judgment motion, we must take as

true all evidence favorable to the nonmovant and draw every reasonable inference and

3 resolve all doubts in favor of the nonmovant. M.D. Anderson Hosp. & Tumor Inst. v.

Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam).

The party moving for a traditional summary judgment has the burden to show that

no genuine issue of material fact exists, and the movant is entitled to summary judgment

as a matter of law. TEX. R. CIV. P. 166a(c); Willrich, 28 S.W.3d at 23. To be entitled to

traditional summary judgment, a defendant must conclusively negate at least one

essential element of each of the plaintiff’s causes of action or conclusively establish each

element of an affirmative defense. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 434

(Tex. 1997). “Evidence is conclusive only if reasonable people could not differ in their

conclusions.” City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). Once the

defendant produces sufficient evidence to establish the right to summary judgment, the

burden shifts to the plaintiff to come forward with competent controverting evidence

raising a genuine issue of material fact. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195,

197 (Tex. 1995). Where, as here, “the trial court’s order does not specify the grounds for

its summary judgment, we must affirm the summary judgment if any of the theories

presented to the trial court and preserved for appellate review are meritorious.” Provident

Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).

B. Applicable Law

The statute of limitations for a negligence suit is two years. See TEX. CIV. PRAC. &

REM. CODE ANN § 16.003(a). “[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

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

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

“[O]nce a defendant has affirmatively ple[a]d[ed] 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 (quoting Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830

(Tex. 1990)). “[I]t 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. “[I]f 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.” Id.

To assess diligence, the relevant inquiry is whether Acosta acted as an ordinarly

prudent person would have acted under similar circumstances and was diligent up until

the time Martinez was served. See id. “[T]he question of the plaintiff’s diligence in effecting

service is one of fact, and is determined by examining the time it took to secure citation,

service, or both, and the type of effort or lack of effort the plaintiff expended in procuring

service.” Id. However, “the plaintiff’s explanation of its service efforts may demonstrate a

lack of due diligence as a matter of law, as when one or more lapses between service

efforts are unexplained or patently unreasonable.” Id.

C. Discussion

In this case, the following facts are undisputed: (1) The accident occurred on

September 28, 2017; (2) Acosta sued Martinez on August 30, 2019—one month before

5 the limitations period expired; and (3) service was not successfully completed until

December 3, 2019—sixty-six days after the statute of limitations period had run, and three

months after Acosta filed suit. Thus, following Martinez’s motion for summary judgment,

the burden shifted to Acosta to demonstrate she acted with with due diligence in her

attempt to serve Martinez and of presenting evidence explaining the delay in service. See

id. at 215.

First, Acosta asserts that the delay in serving Martinez was not caused by her but

by “the failure of the District Clerk to notify [Acosta] that the citation was ready for service.”

Specifically, she claims that citation was in possession of the district clerk, and because

citation was not in her possession, there exists a fact issue as to whether her actions

were diligent in serving Martinez. To support her contention, Acosta references the

register of actions document attached to Martinez’s summary judgment motion. According

to this document, the district clerk issued two citations on September 3, 2019, but “held”

the issuance “pending copies.” The evidence provides that Acosta thereafter mailed the

requested copies to the district clerk on November 15, 2019—over one month later.

According to the rules of civil procedure, “[t]he party requesting citation shall be

responsible for obtaining service of the citation and a copy of the petition.” TEX. R. CIV. P.

99(a); Boyattia v. Hinojosa, 18 S.W.3d 729, 734 (Tex. App.—Dallas 2000, pet. denied)

(“[W]hen a party learns, or by the exercise of diligence should have learned, that the clerk

has failed to fulfill his duty under rule 99, it is incumbent upon the party to ensure that the

job is done.”). Thus, it was Acosta’s responsibility—not the district clerk’s—to obtain

6 service of the citation on Martinez, and “[t]his responsibility extends to seeing that service

is properly reflected in the record.” Creaven v. Creaven, 551 S.W.3d 865, 873 (Tex.

App.—Houston [14th Dist.] 2018, no pet.); TAC Americas, Inc. v. Boothe, 94 S.W.3d 315,

322 (Tex. App.—Austin 2002, no pet.). As a result, we reject Acosta’s assertion that the

failure to serve Martinez was a direct result of the district clerk’s errors.

Next, Acosta claims she acted as a reasonably prudent person would have under

the circumstances, but she makes this assertion without citation to legal authority and

without explaining how that authority applies to the facts here. See TEX. R. APP. P. 38.1(i).

Instead, she asserts that her counsel’s paralegal called the district clerk’s office at least

twice requesting citation status. See Proulx, 235 S.W.3d at 215 (providing that it is the

plaintiff’s burden to explain every lapse in effort or period of delay). However, an inquiry

of status is not an explanation for an approximately three-month delay in procuring a

citation. According to the Fourth Court of Appeals, “[a]n invalid explanation of delay, like

no explanation for delay, constitutes lack of diligence as a matter of law.” Rodriguez v.

Tinsman & Houser, Inc., 13 S.W.3d 47, 51 (Tex. App.—San Antonio 1999, pet. denied);

see Proulx, 235 S.W.3d at 216 (holding “patently unreasonable” explanations for delay

“demonstrate a lack of due diligence as a matter of law”). “It matters not, therefore, that

service in the instant case was accomplished within a relatively short of time after the

expiration of the limitations period.” Rodriguez, 13 S.W.3d at 51; Roberts v. Padre Island

Brewing Co., 28 S.W.3d 618, 621 (Tex. App.—Corpus Christi–Edinburg 2000, pet.

denied) (rejecting appellant’s argument that she exercised diligence by repeatedly

7 attempting to contact the district clerk’s office to inquire about the status of service); Holt

v. D’Hanis State Bank, 993 S.W.2d 237, 241 (Tex. App.—San Antonio 1999, no pet.)

(stating that “unexplained delay constitutes a lack of due diligence as a matter of law”);

see also Richard v. Turner, No. 13-08-00015-CV, 2009 WL 2712393, at *2 (Tex. App.—

Corpus Christi–Edinburg Aug. 31, 2009, pet. denied) (mem. op.) (concluding that the

record established lack of due diligence as matter of law and noting that plaintiff failed to

provide specific dates regarding service efforts).

Furthermore, the summary judgment evidence provides that Acosta failed to

provide the district clerk with the required number of copies in order to effect service. See

Rodriguez, 13 S.W.3d at 49 (“An offered explanation must involve diligence to seek

service of process.”). Because Acosta had the duty and ultimate responsibility “to ensure

that service actually took place,” Tarrant County v. Vandigriff, 71 S.W.3d 921, 926 (Tex.

App.—Fort Worth 2002, pet. denied), we reject her argument that “the trial court

incorrectly placed an unreasonable diligence burden on [her] by holding [her] responsible

for the district clerk’s official mistake.” See TEX. R. CIV. P. 99(a); Boyattia, 18 S.W.3d at

734 (providing that a plaintiff “who wholly ignores her duty to have the citation served on

the defendant during a lengthy period of time [in which] the citation remains with the clerk

does not manifest a bona fide intention to have process served”).

As Acosta did not exercise due diligence in ensuring that service actually took

place, “the lawsuit is deemed filed on the date of service.” Holt, 993 S.W.2d at 241; see

Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (per curiam) (providing that “bring[ing]

8 suit” within a limitations period involves both filing a petition within the applicable time

period and exercising due diligence in serving the defendant with citation). We conclude

that the evidence presented to the trial court established, as a matter of law, that Acosta

failed to use diligence in procuring the citation and effecting service on Martinez. See

Keller, 168 S.W.3d at 816; Rodriguez, 13 S.W.3d at 51 (upholding summary judgment

because plaintiff’s explanation that service was delayed for twenty-five days out of

professional courtesy was not sufficient); Sharp v. Kroger Tex., L.P., 500 S.W.3d 117,

121 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (concluding that unilaterally waiting

to serve a defendant with citation during settlement negotiations for over five months

negated due diligence as a matter of law); (Perkins v. Groff, 936 S.W.2d 661, 668 (Tex.

App.—Dallas 1996, writ denied) (upholding summary judgment based on expiration of

limitations because the plaintiff failed to explain eighteen-day delay between expiration of

limitations and service); Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex. App.—Corpus Christi–

Edinburg 1991, no pet.) (holding that the issuance and service of citation until over five

months after the expiration of limitations negated due diligence); see also Plantation Prod.

Props., L.L.C. v. Meeks, No. 10-02-00029-CV, 2004 WL 2005445, at *6 (Tex. App.—

Waco Sept. 8, 2004, no pet.) (mem. op.) (stating that “[i]t is not unusual, given the

circumstances of individual cases, for a two-month delay to be considered

unreasonable”); Rojas v. CitiMortgage, Inc., No. 13-16-00257-CV, 2017 WL 4054397, at

*5 (Tex. App.—Corpus Christi–Edinburg Sept. 14, 2017, no pet.) (mem. op.) (holding that

the plaintiff failed to carry its burden as a matter of law where it failed to explain the thirty-

9 six-day delay between filing suit and obtaining service, even though service was

completed eight days after the passing of limitations). Accordingly, we hold that the trial

court did not err in granting summary judgment in favor of Martinez. See Grinnell, 951

S.W.2d at 425. We overrule Acosta’s third and fourth issues.2

III. CONCLUSION

We affirm the trial court’s judgment.

JAIME TIJERINA Justice

Delivered and filed on the 3rd day of February, 2022.

2 Because these issues are dispositive, we need not address Acosta’s remaining issues. See TEX. R. APP. P. 47.1.