Affirmed and Memorandum Opinion filed May 10

, 2022.

In The



## Fourteenth Court of Appeals

NO. 14

- 21

- 00 175

- CV

RENEE JENKINS

, Appellant

V.

RODNEY TAYLOR

, Appellee

On Appeal from the County Civil Court at Law No. 2

Harris County, Texas

Trial Court Cause No. 1136968

M E M O R A N D U M O P I N I O N

Appellant Renee Jenkins appeals a summary judgment dismissing her

negligence suit on statute of limitations grounds. Jenkins sued appellee Rodney

Taylor during the applicable two

- year statute of limitati ons but did not achieve

service on Taylor until ten months after limitations expired. Jenkins contends that

the trial court erred in granting summary judgment because a genuine issue of

material fact exists as to whether she exercised diligence in attempt ing service of

process, particularly in light of circumstances related to the COVID

- 19 pandemic.2

We conclude that Taylor met his summary judgment burden, but Jenkins

failed to explain all lapses of service efforts from the time she filed suit on July 5,

20 19 until she achieved service on September 18, 2020. Thus, the trial court did not

err in granting summary judgment in Taylor ’ s favor. We affirm the trial court ’ s

judgment.

Background

On July 5, 2019, Jenkins sued Taylor for injuries she allegedly suffered

resulting from a car accident that occurred on October 10, 2017. In her petition,

Jenkins requested citation by certified mail on Taylor for the address at which he

was ultimately pe rsonally served. Service was not achieved at the time of filing

, and

the record reveals no additional attempts at service until May 2020.

In late January 2020, the World Health Organization Director

- General

released a statement on the outbreak of COVID

- 19

, declaring a public health

emergency. On March 13, 2020, Governor Greg Abbott issued a proclamation

recognizing COVID

- 19 as an imminent threat of disaster in Texas. Additionally, the

Supreme Court of Texas and the Court of Criminal Appeals of Texas join tly issued

the First Emergency Order Regarding the COVID

- 19 State of Disaster on March 13,

2020

, ordering that “all courts in Texas may

. . . modify or suspend any and all

deadlines and procedures, whether prescribed by statute, rule, or order.” 596 S.W.3 d

265 (Tex. 2020). This order, initially set to expire on May 8, was extended by a

series of subsequent orders.

On May 5, 2020, Jenkins requested citation by certified mail, but service was

not achieved. Jenkins again requested citation by mail twice in mid

- September

2020, but service was not achieved. Finally, a process server personally served

Taylor on September 18, 2020.3

Taylor filed an answer on October 9, 2020, generally denying Jenkins ’ s

allegations and asserting a statute of limitations affirmati ve defense. Based on his

limitations defense, Taylor filed a traditional motion for summary judgment, urging

that Jenkins did not exercise diligence in effectuating service for the eleven months

following the expiration of limitations on October 10, 2019. Jenkins responded,

contending that she exercised diligence in serving Taylor by paying the service and

citation fees at the time of filing her petition and by following up periodically with

the clerk ’ s office. A s a reason for delay, Jenkins cited COVID

- 19 complications

with her counsel beginning in February 2020. H owever

, other than a declaration

from her counsel that Jenkins “exercised due diligence in having Defendant served

with citation and a copy of the petition,” Jenkins provided no evidence estab lishing

the efforts, if any, that she undertook to achieve service on Taylor from the time of

the lawsuit ’ s filing on July 5, 2019, until the second request for citation on May 5,

2020.

The trial court granted Taylor ’ s motion for summary judgment and dismissed

Jenkins ’ s claims against him on January 18, 202 1

. The court later denied Jenkins’s

motion for new trial

.

Standard of Review

We review summary judgment s de novo. Tran v. Trejos

, No. 14

- 17

- 00998

-

CV, 2019 WL 962605, at *2

- 4 (Tex. App.

— Houston [14th Dist.] Feb. 28, 2019, no

pet.) (mem. op.). In the traditional summary judgment context, the movant has the

burden to show there is no genuine issue of material fact and that the movant is

entitled to judgment as a matter of law. Tex. R

. Civ. P. 166a(c) ; Tran

, 2019 WL

962605, at *2

. A defendant seeking summary judgment based on an affirmative

defense such as limitations bears the burden to conclusively establish every element

of that defense, including the accrual date of the cause of action. Diversicare Gen.4

Partner, Inc. v. Rubio

, 185 S.W.3d 842, 846 (Tex. 2005) ; see also Sha rp v. Kroger

Tex. L.P.

, 500 S.W.3d 117, 119 (Tex. App.

— Houston [14th Dist.] 2016, no pet.)

.

To defeat summary judgment, the non

- movant must present evidence creating a

genuine issue of material fact on at least one of the elements of the affirmative

defen se. See Diversicare Gen. Partner

, 185 S.W.3d at 846

.

Applicable Law

A plaintiff must bring suit for personal injury within two years from the date

the cause of action accrues. Tex. Civ. Prac. & Rem. Code § 16.003(a) ; Proulx v.

Wells

, 235 S.W.3d 213, 215 (Tex. 2007)

. To “bring suit” within the applicable

limitations period, a plaintiff must both file suit within that period and use due

diligence to serve the defendant with process. See, e.g.

, Ashley v. Hawkins

, 293

S.W.3d 175, 179 (Tex. 2009) ; Proulx

, 23 5 S.W.3d at 215

- 16 ; Sharp

, 500 S.W.3d at

119

. When, as here, a defendant affirmatively pleads a limitations defense and

shows that service was not achieved within the applicable limitations period, the

burden shifts to the plaintiff to prove diligence. Sharp

, 500 S.W.3d at 119 (citing

Proulx

, 235 S.W.3d at 216 ). To show diligence, the plaintiff must present ev idence

of the efforts made to serve the defendant and explain every lapse in effort or period

of delay. Id. If the plaintiff ’ s explanation for the delay raises a genuine issue of

material fact concerning the diligence of service efforts, the burden shift s back to the

defendant to show why, as a matter of law, the explanation is insufficient. Id.

Conversely, if one or more lapses between service efforts are unexplained or patently

unreasonable, then the plaintiff has failed to show diligence as a matter of law, and

the defendant will bear no further burden at all. See Proulx

, 235 S.W.3d at 216

.

Analysis

Jenkins does not dispute that the statute of limitations for her personal injury

suit against Taylor expired on October 10, 2019. See Tex. Civ. Prac. & Rem. Code5

§ 16.003(a) ; Proulx

, 235 S.W.3d at 215

. Likewise, it is undisputed that Jenkins filed

suit against Taylor before the statute of limitations expired but did not serve Taylor

with the lawsuit until eleven months after limitations expired. Thus, Taylor is

entitled to summary judgment on his limitations defense unless Jenkins presented

evidence raising a genuine issue of material fact on due diligence as to every period

of delay in effecting service. See Sharp

, 500 S.W.3d at 120

. For the following

reasons, we conclude that Jenkins failed to demonstrate diligence for all periods of

delay.

Although a plaintiff is not required to use the highest degree of diligence to

procure service, s he must use the degree of diligence that an ordi narily prudent

person would have used under the same or similar circumstances. Sharp

, 500

S.W.3d at 120 (citing Auten v. DJ Clark, Inc.

, 209 S.W.3d 695, 698

- 99 (Tex. App.

—

Houston [14th Dist.] 2006, no pet.) ). Diligence is generally a question of fact, bu t if

a plaintiff offers no excuse for a delay in service or if the lapse of time and the

plaintiff ’ s acts conclusively negate diligence, courts will find a lack of diligence as

a matter of law. Id. (citing Belleza

- Gonzalez v. Villa

, 57 S.W.3d 8, 12 (Tex. App.

—

Houston [14th Dist.] 2001, no pet.) ). Courts consistently hold that due diligence is

lacking as a matter of law when unexplained lapses of time exist between filing suit,

issuance of citation, and service. 1

1 Sharp

, 500 S.W.3d at 120 (citing Li v. Univ. of Tex. Health Sci. Ctr. at Houston

, 984

S.W.2d 647, 652 (Tex. App.

— Houston [14th Dist.] 1998, pet. denied)); see also Ashley

, 293

S.W.3d at 18 0

- 81 (plaintiff’s unexplained eight

- month gap in service efforts demonstrated lack of

diligence as a matter of law); Gant v. DeLeon

, 786 S.W.2d 259, 260 (Tex. 1990) (per curiam)

(“Plaintiffs’ unexplained delay of three periods totaling 38 months in obtaini ng service on

defendant establishes failure to use diligence as a matter of law.”); Tran

, 2019 WL 962605, at *4

(“Crediting Tran’s diligence in service efforts after Hurricane Harvey, Tran has not demonstrated

ordinary diligence from mid

- May through the da te Hurricane Harvey struck.”); Milcoun v. Werner

Co.

, 565 S.W.3d 358, 363

- 66 (Tex. App.

— Houston [14th Dist.] 2018, no pet.) (plaintiff’s

explanations for making no effort to serve defendant during ten

- month period both before and after

limitations expired showed lack of diligence as a matter of law); Molina v. Gears

, No. 14

- 16

-6

Jenkins filed suit on July 5, 2019, but she did not secure service of process

until September 18, 2020. The statute of limitations expired on October 10, 2019.

Jenkins offered an excuse for the delay in service based on: (1) delays related to the

COVID

- 19 outbreak beginning in January 2020 ; and (2) not being aware that service

of citation was not achieved.

Jenkins ’ s first proffered explanation relates to the period from fil ing suit on

July 5, 2019 to her second service attempt on May 5, 2020

. S he presented no

evidence demonstrating that sh e or her counsel made inquiries on the status of

citation during this ten

- month period. The World Health Organization declared a

public health emergency based on COVID

- 19 in January 2020, and the Texas

Governor’s proclamation along with the First Emergenc y Order Regarding the

COVID

- 19 State of Disaster followed on March 13, 2020. Assuming COVID

- 19 ’ s

effects delayed service efforts after January 2020, Jenkins nonetheless has not

demonstrate d ordinary diligence during the three months between early July 2019

and the expiration of limitations in October 2019

, nor during the three months after

the limitations deadline until the COVID

- 19 outbreak in January 2020

. Further,

Jenkins present ed no evidence demonstrating that s he or her counsel inquired on the

00858

- CV, 2018 WL 1404340, at *4

- 5 (Tex. App.

— Houston [14th Dist.] Mar. 20, 2018, pet.

denied) (mem. op.) (plaintiff’s unexplained 81

- day delay in first attempting service

— which

occur red after limitations expired

— coupled with failure to achieve service until over ten months

after limitations expired amounted to lack of diligence as a matter of law); Slagle v. Prickett

, 345

S.W.3d 693, 698

- 99 (Tex. App.

— El Paso 2011, no pet.) (plaintiff failed to exercise due diligence

when he took no action for three months after he filed his original petition); Mauricio v. Castro

, 287 S.W.3d 476, 480 (Tex. App.

— Dallas 2009, no pet.) (plaintiff failed to exercise due diligence

when he filed suit two wee ks before limitations expired but offered no explanation for effecting

service thirty

- one days after limitations expired); Carter v. MacFadyen

, 93 S.W.3d 307, 314 (Tex.

App.

— Houston [14th Dist.] 2002, pet. denied) (plaintiff failed to exercise due diligenc e in part

due to failure to explain two and one

- half month gap between the timely filing of the plaintiff’s

petition and first service attempts after limitations expired); Rodriguez v. Tisman & Houser, Inc.

, 13 S.W.3d 47, 51

- 52 (Tex. App.

— San Antonio 1999, pet. denied) (plaintiff failed to exercise due

diligence even though service was accomplished a few weeks after limitations period expired).7

status of service throughout the second four

- month period of inactivity between May

2020 and early September 2020

.

The failure to inquire as to the status of service from July 2019 to May 2020

likewise fatally undermines Jenkins’s second proffered explanation for delay. A

conclusory declaration from her counsel that Jenkins “diligently, periodically

followed up with the clerk ’ s office on the status of service by mail” and that, between

July 2019 and May 2020

, Jenkins ’ s counsel “conducted additional background and

comprehensive searches, confirming that Defendant did in fact reside at the address

at which he was ultimately served” does not establish diligence. It is not reasonably

diligent to allow more than th ree months to pass between filing of suit and the expiry

of the limitations period without affirmatively checking the status of service

. Tran

,

2019 WL 962605, at *4 ; Stoney v. Gurmatakis

, No. 01

- 09

- 00733

- CV, 2010 WL

1840247, at *3 (Tex. App.

— Houston [1st Dist.] May 6, 2010, no pet.) (mem. op.)

(concluding plaintiff failed to show diligence as a matter of law in part because she

failed to provide any explanation for her approximate two

- month delay in inquiring

with the clerk ’ s office about procuring citatio n ) ; see also Slagle

, 345 S.W.3d at 698

(“[W]hen a defendant complains of lack of due diligence in service of process, the

plaintiff must explain what steps he took to obtain service, not explain why he did

nothing.”); cf. Sharp

, 500 S.W.3d at 122 (Christop her, J., concurring) (plaintiff ’ s

failure to attempt service a month before limitations expired when the lawsuit had

been on file for several months showed a lack of diligence and supported summary

judgment on limitations). Thus, Jenkins has not provided evidence of reasonable

diligence in attempting to obtain service from July 2019 to May 2020

.

Accordingly, although Jenkins filed her petition within the limitations period,

her claim is barred by Taylor ’ s limitations defense because Jenkins did not achieve

service until well outside the limitations period and did not present evidence8

reasonably explaining all delays in serving Taylor sufficient to create a genuine issue

of material fact

. Because the trial court did not err in granting summary judgment

on limitations grounds, we overrule Jenkins ’ s issue.

Conclusion

We affirm the trial court ’ s judgment.

/s/ Kevin Jewell

Justice

Panel consists of Justices Jewell, Zimmerer, and Hassan.