COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00074-CV

GAIL RIGSBY APPELLANT AND APPELLEE

V.

EECU APPELLEE AND APPELLANT

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FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 236-265926-13

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MEMORANDUM OPINION1

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Appellant and Cross-Appellee Gail Rigsby appeals the trial court’s 

judgment granting Appellee and Cross-Appellant EECU’s motion to dismiss filed 

pursuant to the Texas Citizens’ Participation Act (TCPA). See Tex. Civ. Prac. & 

Rem. Code Ann. § 27.005 (West 2015). EECU appeals the same judgment, 

 

1See Tex. R. App. P. 47.4.
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arguing that the trial court should have granted part of the motion to dismiss on 

different grounds. We will affirm in part and reverse and remand in part.

EECU is a member-owned Texas financial institution that offers its 

products and services to individuals who live or work in several north Texas 

counties. Rigsby began working for EECU in 2005. In 2012, she occupied the 

position of Branch Relationship Manager for EECU’s Arlington branch.

On May 11, 2012, members of EECU’s executive team interviewed Rigsby 

as part of an internal investigation involving irregularities with one of the financial 

products that it offers at its Arlington branch—the “First-Time Car Buyer 

Program.” Several days later, on May 15, 2012, EECU terminated Rigsby’s 

employment.

Rigsby filed her original petition against EECU on May 15, 2013. Claiming

that EECU had accused her of (i) engaging in fraud in regard to the car-buyer 

program, (ii) violating federal law (the Graham-Leach Bliley Act), and (iii) failing to 

protect sensitive client information, Rigsby alleged claims against EECU for 

defamation, intentional infliction of emotional distress, negligence, and gross 

negligence and sought exemplary damages. EECU generally denied Rigsby’s 

allegations, pleaded affirmative defenses, and filed a motion to dismiss the 

claims under the TCPA. EECU’s motion to dismiss argued that each of Rigsby’s 

claims were based on, related to, or were in response to EECU’s exercise of its 

right to free speech; that Rigsby could not establish by clear and specific 

evidence a prima facie case for the elements of each claim; and that EECU had
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established a valid defense—statute of limitations—to the defamation claim. The 

trial court granted EECU’s motion to dismiss, finding “that [Rigsby’s] claims are 

time-barred by the applicable Statute of Limitations.”

In her first issue, Rigsby argues that the trial court erroneously dismissed

her defamation claim as time-barred because she filed it timely and did not 

unreasonably delay serving EECU. EECU responds that the trial court properly 

dismissed Rigsby’s defamation claim because she did not exercise diligence in 

effecting service. We limit our analysis to whether Rigsby diligently served 

EECU.

The legislature enacted the TCPA “to encourage and safeguard the 

constitutional rights of persons to petition, speak freely, associate freely, and 

otherwise participate in government to the maximum extent permitted by law and, 

at the same time, protect the rights of a person to file meritorious lawsuits for 

demonstrable injury.” Tex. Civ. Prac. & Rem. Code Ann. § 27.002 (West 2015). 

To achieve these ends, the legislature provided that if a legal action is brought in 

response to a party’s exercise of the right of free speech, the right to petition, or 

the right of association, that person may move to dismiss the action. 

Id. § 27.003(a) (West 2015). The movant bears the initial burden to show by a 

preponderance of the evidence that the action “is based on, relates to, or is in 

response to the party’s exercise” of any of the aforementioned constitutional 

rights. Id. § 27.005(b). If the movant satisfies this burden, the trial court must 

dismiss the legal action unless the party who brought the action “establishes by 
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clear and specific evidence a prima facie case for each essential element of the 

claim in question.” Id. § 27.005(b), (c). Notwithstanding whether the previous 

burden is met, the trial court shall dismiss a legal action against the moving party 

if the moving party establishes by a preponderance of the evidence each 

essential element of a valid defense to the nonmovant’s claim. Id. § 27.005(d).

The trial court found that Rigsby’s defamation claim was barred by 

limitations, as affirmatively pleaded by EECU; the trial court therefore determined 

that EECU met its burden under section 27.005(d). See id. We review the trial 

court’s ruling de novo. See United Food & Commercial Workers Int’l Union v. 

Wal-Mart Stores, Inc., 430 S.W.3d 508, 511 (Tex. App.—Fort Worth 2014, no 

pet.).

To “bring suit” for defamation within the one-year limitations period 

prescribed by civil practice and remedies code section 16.002(a), a plaintiff must 

not only file suit within the applicable limitations period, she must also use 

diligence to have the defendant served with process. Tex. Civ. Prac. & Rem. 

Code Ann. § 16.002(a) (West 2002); see Gant v. DeLeon, 786 S.W.2d 259, 260

(Tex. 1990); Slagle v. Prickett, 345 S.W.3d 693, 696‒97 (Tex. App.—El Paso 

2011, no pet.). When a plaintiff files a petition within the limitations period but 

does not serve the defendant until after the statutory period has expired, the date 

of service relates back to the date of filing if the plaintiff exercised diligence in 

effecting service. Gant, 786 S.W.2d at 260.
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When a defendant has affirmatively pleaded the defense of limitations and 

shown that service was obtained after limitations expired, the burden shifts to the 

plaintiff to explain the delay. Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007)

(reasoning that plaintiff must present evidence of efforts she made to serve the 

defendant and explain every lapse in effort or period of delay). In assessing 

diligence, the relevant inquiry is whether the plaintiff acted as an ordinarily 

prudent person would have acted under the same or similar circumstances and 

was diligent in effecting service up until the time the defendant was served. Id. If 

no excuse is offered for a delay, lack of diligence will be found as a matter of law. 

Gant, 786 S.W.2d at 260; James v. Gruma Corp., 129 S.W.3d 755, 759‒60 (Tex. 

App.—Fort Worth 2004, pet. denied).

The record demonstrates that Rigsby filed her original petition on May 15, 

2013, and that citation issued the next day. Rigsby served EECU’s President 

with the petition three months later, on August 14, 2013, but the service was 

improper because the President was not EECU’s registered agent for service. 

On September 9, 2013, EECU notified Rigsby of the error by letter, and on 

November 4, 2013, the parties filed a joint motion to quash the citation served on 

EECU’s President. On November 8, 2013, the trial court granted the motion to 

quash and ordered that EECU be served as of November 8, 2013. Rigsby’s 

entire argument on the diligence issue is as follows:

Here, EECU had possession of Mrs. Rigsby’s lawsuit three 

months after citation issued, and Mrs. Rigsby affected service on 

EECU less than six months after filing suit. During this time, 
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Mrs. Rigsby was in contact with EECU regarding the lawsuit. 

Mrs. Rigsby’s delay does not rise to the level of delay that

conclusively negates diligence as a matter of law. Even assuming 

that this delay in service was fatal to Mrs. Rigsby’s defamation claim 

(which it is not), Mrs. Rigsby’s intentional infliction of emotional 

distress and negligence claims were filed and served within the two 

year statute of limitations. At the very least, the Trial Court’s 

dismissal of these claims as time-barred is clearly reversible error. 

[Footnote and record references omitted.]

Even if we assume that the August 14, 2013 service on EECU’s President was 

proper, Rigsby has offered absolutely no explanation for the three-month delay in 

service between May 15, 2013, and August 14, 2013. Consequently, Rigsby 

failed to exercise diligence in serving EECU as a matter of law. See Ashley v. 

Hawkins, 293 S.W.3d 175, 180‒81 (Tex. 2009) (concluding that plaintiff who 

gave no explanation for delay in service failed to exercise diligence as a matter of 

law); Gant, 786 S.W.2d at 260 (same); see also Boyattia v. Hinojosa, 18 S.W.3d 

729, 734 (Tex. App.—Dallas 2000, pet. denied) (“We conclude Boyattia’s failure 

to act during the clerk’s three-month delay constitutes a lack of diligence as a 

matter of law.”); Holt v. D’Hanis State Bank, 993 S.W.2d 237, 241 (Tex. App.—

San Antonio 1999, no pet.) (holding that unexplained three-month delay in 

service constituted lack of diligence as a matter of law). We hold that the trial 

court did not err by granting EECU’s motion to dismiss Rigsby’s defamation claim 

on the limitations defense. We overrule Rigsby’s first issue.

Rigsby argues in her second and third issues that the trial court erred by 

dismissing her non-defamation claims—intentional infliction of emotional distress, 

negligence, and gross negligence—as time-barred. EECU argues in what we 
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construe to be its only cross-issue that the trial court erred by dismissing 

Rigsby’s non-defamation claims on limitations grounds rather than on the 

independent grounds that it advanced in its motion to dismiss. As EECU

correctly points out, it never sought to dismiss Rigsby’s non-defamation claims 

for failure to comply with the applicable statute of limitations. Therefore, the trial 

court erred by dismissing Rigsby’s non-defamation claims on a ground that 

EECU never asserted. EECU argues that it is entitled to prevail on its TCPA 

motion to dismiss and to recover attorneys’ fees and costs, and it asks us to 

affirm the dismissal for the reasons set forth in its brief and motion, but the trial 

court should have an opportunity to consider EECU’s asserted grounds for 

dismissal before this court does, as EECU alternatively prays. We sustain 

EECU’s cross-issue in part and overrule Rigsby’s second and third issues as 

moot.

Having sustained EECU’s cross-issue in part, we reverse the trial court’s 

judgment insofar as it dismisses Rigsby’s intentional infliction of emotional 

distress, negligence, and gross negligence claims and remand this case to the 

trial court to consider EECU’s motion to dismiss those claims for the reasons 

advanced in EECU’s motion to dismiss. Having overruled Rigsby’s first issue, we 

affirm the trial court’s judgment dismissing Rigsby’s defamation claim.

/s/ Bill Meier

BILL MEIER

JUSTICE
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PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DELIVERED: April 2, 2015