Tonya Allen DDS, P.A. v. Smith County Appraisal District
12-15-00029-CV
| Tex. App. | Sep 2, 2015Background
- Tonya Allen filed a tax-appraisal petition on April 28, 2014, challenging the Smith County Appraisal Review Board’s order.
- The appraisal review board’s decision was received March 14, 2014; the 60-day filing deadline for an appeal expired May 13, 2014.
- Allen timely filed her petition within 60 days, but did not request or pay for service of citation until August 6, 2014; the Appraisal District was served August 11, 2014.
- The Appraisal District pleaded limitations as an affirmative defense and moved for summary judgment after being served; the trial court granted summary judgment.
- Allen argued she exercised due diligence (blaming confusion over new e-filing procedures and relying on the district clerk), and that a fact issue existed about diligence.
- The court concluded Allen failed to show due diligence in procuring service (three-month delay before requesting service); summary judgment for the District was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Allen exercised due diligence in obtaining service so that service related back to the filing date and avoided the limitations bar | Allen argued counsel’s affidavit showed reliance on e-filing and ordinary practices; she relied on the clerk and thus did not act negligently | District argued service occurred after limitations expired and plaintiff bears burden to show diligence; delay was unexplained and unreasonable | Court held Allen failed to show due diligence; summary judgment on limitations affirmed |
Key Cases Cited
- Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex. 2009) (standard of de novo review for summary judgment and burdens)
- Amedisys Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507 (Tex. 2014) (movant’s burden on summary judgment and nonmovant’s response obligations)
- Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826 (Tex. 1990) (mere filing does not interrupt limitations absent due diligence in issuance and service)
- Proulx v. Wells, 235 S.W.3d 213 (Tex. 2007) (when service is after limitations, plaintiff must explain delay; relation-back principles)
- Slagle v. Prickett, 345 S.W.3d 693 (Tex. App.—El Paso 2011) (plaintiff must show steps taken to obtain service, not reasons for inaction)
- Boyattia v. Hinojosa, 18 S.W.3d 729 (Tex. App.—Dallas 2000) (plaintiff—not clerk or process server—bears responsibility to ensure service)