335 S.W.3d 738
Tex. App.2011Background
- Holmes filed suit Oct. 20, 2003, seeking judicial review of a Texas Workers' Compensation Appeals Panel decision.
- Citation attempt by certified mail failed; TMIC not served after November 2003 return marked IA and no further service attempts.
- June 19, 2006, trial court dismissed the case after lengthy docket neglect; reinstated July 2006 after Holmes claimed unawareness of setting.
- Holmes filed First Amended Petition June 19, 2009 and served TMIC June 24, 2009, about five years after reinstatement.
- TMIC answered July 17, 2009 raising limitations and lack of due diligence; August 2009 TMIC moved for summary judgment on limitations.
- Trial court granted summary judgment for TMIC; Holmes appealed asserting due diligence and timing issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether filing and requesting service suffices for due diligence | Holmes complied by filing and asking clerk to serve | Due diligence requires proactive service efforts beyond filing | Not sufficient; due diligence required and was absent |
| Whether IA on the green card created a genuine service issue | IA cast doubt on service adequacy | IA irrelevant to post-filing service diligence | IA not determinative of diligence; dismissal affirmed on lack of diligence |
| Whether the case should be carried for discovery due to service ambiguity | Pending discovery should toll process | No tolling without proper diligence or service | No; matter not carried; summary judgment proper |
| Whether the suit was timely filed under the fortieth-day rule | Filed Oct. 20, 2003, the first working day after the fortieth day | Fortieth day was Oct. 18, 2003; filing after is timely only if timely service | File timely; service still required diligence to interrupt limitations |
| Whether Holmes exercised due diligence to interrupt the limitations period | Diligence shown by filing and requesting service | Long unexplained service delay shows lack of due diligence | Holmes failed due diligence as a matter of law; summary judgment proper |
Key Cases Cited
- Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826 (Tex.1990) (filing alone does not interrupt limitations without due diligence in service)
- Gant v. DeLeon, 786 S.W.2d 259 (Tex.1990) (unexplained delays in service constitute lack of diligence as a matter of law)
- Proulx v. Wells, 235 S.W.3d 213 (Tex.2007) (due diligence can relate back filing date when service occurs after period)
- Ashley v. Hawkins, 293 S.W.3d 175 (Tex.2009) (burden on plaintiff to prove diligence when limitations are pled)
- Taylor v. Thompson, 4 S.W.3d 63 (Tex.App.-Houston [1st Dist.] 1999) (unexplained delay in service not due diligence as a matter of law)