Jennifer Samaniego v. Alieda Silguero
03-14-00795-CV
| Tex. App. | Jul 28, 2016Background
- On May 2, 2011 Samaniego was injured in an automobile collision and filed suit against Silguero on May 2, 2013 (two-year limitations period for personal-injury claims).
- Samaniego attempted service twice at two separate addresses in May 2013 but those attempts were unsuccessful; no further service attempts are shown in the record for the next several months.
- In October 2013 Samaniego’s original attorney suffered a stroke and became incapacitated; a court-appointed attorney offered to review files and assist in transferring or finding new counsel.
- Samaniego did not retain new counsel until late April 2014; substituted service was effected on Silguero on June 11, 2014—more than a year after limitations had run and 13 months after suit was filed.
- Silguero moved for summary judgment asserting limitations; the county court granted the motion, finding Samaniego failed to show due diligence in effecting service.
- On appeal, the Third Court of Appeals affirmed, concluding Samaniego’s explanation left unexplained, unreasonable gaps and failed as a matter of law to show due diligence in procuring service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff exercised due diligence in procuring service before limitations ran | Samaniego: she attempted service in May 2013, lost counsel to a stroke in Oct 2013, acted with due diligence to obtain new counsel and the new counsel timely arranged service | Silguero: plaintiff was not served within limitations and plaintiff cannot explain the multiple, unexplained gaps in service efforts—therefore no due diligence | Held: No. Plaintiff’s evidence left unexplained lapses and did not show diligence as a matter of law; summary judgment affirmed |
Key Cases Cited
- Proulx v. Wells, 235 S.W.3d 213 (Tex. 2007) (sets standard that filing plus diligent service within limitations is required and unexplained lapses can defeat diligence)
- Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826 (Tex. 1990) (duty to use diligence in serving defendant to bring suit within limitations)
- Ashley v. Hawkins, 293 S.W.3d 175 (Tex. 2009) (clarifies diligence inquiry and when lapses defeat plaintiff as a matter of law)
- Gant v. DeLeon, 786 S.W.2d 259 (Tex. 1990) (service within limitations required to commence suit for limitations purposes)
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (summary-judgment review standards)
- Webster v. Thomas, 5 S.W.3d 287 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (efforts to obtain counsel do not necessarily equate to efforts to effect service)