Raymond Shaw v. Joseph Charles Lynch, 01-15-00040-CV

Shaw (plaintiff), a police sergeant, filed a timely personal-injury suit on December 26, 2012 alleging Lynch ran him over with an ATV on December 30, 2010.
The two-year limitations period expired December 30, 2012; citation was issued December 27, 2012 but Lynch was not served until February 20, 2013 (52 days after limitations expired).
Lynch moved for summary judgment on limitations, attaching the clerk’s issuance record and process server’s return showing service on February 20, 2013.
Shaw responded that the delay resulted from a clerk/processing error: he had requested citation be placed in process-server Legal Support’s box; Legal Support’s owner (Moreland) stated he did not receive the citation until January 22, 2013 and then subcontracted local servers, resulting in service on February 20.
Counsel Gheezi testified he expected service within 1–2 weeks; after about four Mondays with no return or answer he inquired and directed Moreland to locate and serve Lynch as expeditiously as possible.
The trial court sustained some hearsay objections to portions of affidavits and granted summary judgment for Lynch; the court of appeals reviewed de novo and reversed, finding a fact issue on diligence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Shaw exercised due diligence in procuring service so that service after limitations relates back to filing	Shaw: requested citation before limitations expired, followed up after noticing no return/answer, directed process server to locate and serve; delay due to clerk/process-server handling	Lynch: service occurred 52 days after limitations; Shaw failed to follow up for "four Mondays" and Moreland’s explanation is inadequate — insufficient diligence as matter of law	Reversed: evidence created genuine fact issue on diligence; four-week lapses here not patently unreasonable, so summary judgment on limitations was improper

Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (standard for reviewing summary judgment de novo)
Proulx v. Wells, 235 S.W.3d 213 (Tex. 2007) (timely filing only interrupts limitations if plaintiff exercises due diligence in issuance and service)
Ashley v. Hawkins, 293 S.W.3d 175 (Tex. 2009) (burden shifts to plaintiff to prove diligence once defendant shows untimely service)
Keeton v. Carrasco, 53 S.W.3d 13 (Tex. App.—San Antonio 2001) (investigating absence of answer and promptly reissuing/causing service can raise fact issue on diligence)
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (summary-judgment inferences must favor nonmovant)
Bilinsco Inc. v. Harris Cty. Appraisal Dist., 321 S.W.3d 648 (Tex. App.—Houston [1st Dist.] 2010) (party must follow up when clerk delays; undue inaction can defeat diligence)
Boyattia v. Hinojosa, 18 S.W.3d 729 (Tex. App.—Dallas 2000) (party who wholly ignores duty to have citation served during clerk delay shows no bona fide intention)