Tonya Allen DDS, P.A. v. Smith County Appraisal District
12-15-00029-CV
| Tex. App. | Jul 30, 2015Background
- Property owner Tonya Allen filed an original petition challenging a Smith County Appraisal Review Board order; petition was electronically filed April 28, 2014, within the 60‑day statutory window after she received the ARB order on March 14, 2014.
- Allen did not request or pay for issuance/service of citation until August 6, 2014; the District was served August 11, 2014 — about 105 days after filing and roughly three months after the limitations period expired (May 13, 2014).
- The District answered and affirmatively pleaded limitations, then moved for summary judgment arguing Allen failed to exercise the diligence required for service to relate back to the filing date.
- Allen submitted an affidavit from her counsel asserting confusion about e‑filing and a routine file review, but acknowledging that the fee/request for service was not made until August.
- The trial court sustained the District’s objections to the affidavit and granted summary judgment for the District on limitations grounds; appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service effected after the statute of limitations can "relate back" to the filing date because plaintiff continuously exercised diligence in procuring issuance and service | Allen: filed within the 60‑day statutory period and later effected service; she exercised due diligence such that service should relate back to filing | District: plaintiff bore burden to explain every lapse after service was effected post‑limitations; Allen did not request/pay for citation until ~3 months after limitations expired and made no adequate efforts during that period, so no diligence as a matter of law | Court affirmed summary judgment for defendant: Allen failed to show continuous diligence and service did not relate back, so suit was time‑barred by limitations |
Key Cases Cited
- Proulx v. Wells, 235 S.W.3d 213 (Tex. 2007) (plaintiff must explain every lapse in effort; burden shifting in diligence analysis)
- Gant v. DeLeon, 786 S.W.2d 259 (Tex. 1990) (service after limitations requires showing of diligence to relate back)
- Zale Corp. v. Rosenbaum, 520 S.W.2d 889 (Tex. 1975) (relating service back to filing requires due diligence)
- Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826 (Tex. 1990) (filing alone does not constitute "bringing suit"; service is required)
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (standard of review for summary judgment)