Opinion issued April 30 , 2020

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 19 - 00646 - CV

——————————— CEDRIQUEZ RICHARDSON AND T O NY RICHARDSON , A ppella nt s V. KIRSTI CLACK , Appell e e On Appeal from the 157th District Court

Ha rris County, Texas Trial Court Ca se No. 2017 - 54923

MEMORANDUM OPINION Cedriquez and Tony Richardson ’ s personal

- injury suit against Kristi Clack

was d i smissed after the trial court granted Cla ck ’ s motion for summary judgment on limitations grounds. The Ri chardson s appeal the judgment of dismissal , arguing2

that they used diligence in serving Clack or, at a minimum, raised a fact question on the issue to p r event summary judgment against them. We affirm. Efforts to Obtain Service on Clack Clack and the Richa rdsons were involved in a motor accident on October 1, 2016 , which set October 1, 2018 as the date the two

- year limitations period wou ld expire. Se e T EX . C IV . P RAC . & R EM . C ODE § 16.003(a) (setting a two

- year limitations period fo r per s on a l injury actions)

. The Richardsons fi led suit against Clack on August 18, 2017, lea ving more than a yea r of the limitations period for service of process on Clack

. B egin ning in October 2017, the Richardsons ’ attorney s check ed in with the process server abo ut
ever y six to e ight weeks fo r an update on service

. Each time, the process server “indicated he did not have a good address for [Clack and] . . . was searching fo r [her]. ” This patter n cont inued until one week before the two

- year limit ations was set to expire. In Septemb er 2018, the Richardsons ’ attorney s asked the process server about substituted service and, when told that the process server still did not have a “g ood address ” for Clack, the Richardsons ’ attorneys placed the file on a “due diligence list

. ” This resulted in weekly fo llow

- up call s to the process serve r, who rep eatedly a dvised that he still “was checking for new address ” for service.3

The law office ’ s weekly , post

- limitations calls to the process server

c ontinued for six month s, until the end of March 2019 , w ith no change s in requests

or responses fro m either end of the call. Then, after six months of the proc ess server st ating week ly that he w as still checking for a new address , the process server stopped answering the law office ’ s calls a l together

. After th ree weeks of no returned phone calls, the Richardsons ’ attorney s requested t hat new citation be issued to a different proc ess server. The new process

server picked up the new citation on April 26, 2019 and succes sfully accomplis h ed service in just four day s. Clack was served at her work address on April 30. She filed her answer on May 28 and immediately moved for summary jud gment on limit ations g r ounds. T he Richardsons respo nded with a timeline of communication between the law office and the origina l proc ess server with accompanying affidavits

. Each affidavit provided a factual recitation of the follow

- up calls t o th e fi r st process server, the switch to a new process server in Apr il 2019, and the successful service on Clack that same month. The Richardson s argued that they demonstrated due dilig ence in attempting to obtain service or, at a minimum, raised a fact issu e on diligence to avoid

summ ar y - judgment dismissal of their suit. The trial court granted C lack ’ s4

summary - judgment motion and dismissed the Ri chardsons ’ suit. The Richardsons appeal ed. Mot ion for Summary Judgme nt on Limitations In their so le issue, the Ric hards ons argue the trial court erred in gra n ting summary judgment on limi tations ground s . A. Standard of r eview We review de novo a trial court ’ s ruling on a motion for summary judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 84 4, 8 48 (T ex. 2009) . A party moving for traditio n al summary judgment has the burden to prove there is no genuine issue of material fact and the mo v ant is entitled to judgment as a matter of law. T EX . R. C IV . P. 166a(c) ; SeaBright Ins. Co. v. Lopez , 465 S.W. 3d 6 37, 641 (Tex. 2015) . When a defendant moves for summary judgment, the defendant must either disprove at least one essential element of the pl a intiff ’ s cause of action or plead and conclusively establish ea ch essential element of the defendant

- movant ’s affi rmative defense

. Cathey v. Booth , 900 S.W.2d 339, 341 (Tex. 1995)

. To determine whether there is a fact issue in a summary - judgment motion ,
w e review the evidence in the light most favorable to the non movant, crediting favorable evidence if reasonable jur ors could and disregarding contrary evidence unless reaso nable juro r s could not. See Fielding , 289 S.W.3d at 848 (citing City of5

Keller v. Wi lson , 168 S .W.3d 802, 827 (Tex. 2005) ). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. See City of Keller , 168 S.W.3d at 823

. B. Applicable law on due diligence in obtaining servi c e “Summary judgment on a limitations affirmative defense involves shifting burdens of proof.” Perez v. Efurd , No. 01

– 15

– 00963

– CV, 2016 WL 5787242, at *2 ( Tex. App.

— Houston [1st Dist.] Oct. 4, 2016, no pet. ) (mem. op.) (citing Proulx v. Wells , 235 S.W.3d 2 1 3, 215

– 16 (Tex. 2007) ). When a plaintiff files her petition within the limitations period but obtains service on t he defendant outside of the limitations period, the service is valid only if the plaintiff exercised dilig ence in obtaining service. Ashley v

. Hawkins , 293 S.W.3d 175, 179 (Tex. 2009 ); see Proulx , 235 S.W.3d at 215 (providing that “a timely filed suit will not inter rupt the running of limitations unless the plaintiff exercises due diligence in the issuance and service of ci tati on”). If a plaint iff diligently obtains service after the statute of limitations expires, t hen the date of service relates back to the date th e suit was filed

. Proulx , 235 S.W.3d at 215

. If a defendant affirmatively pleads the defense of limitations , t houg h, and shows that service was obtained afte r the limitation ’ s deadline, then the burden shifts to the plaintiff to prove diligence. Ashley , 29 3 S.W.3d a t 179 ; Proulx , 235 S.W.3d at 215

.6

The d iligence inquiry asks “whether the plaintiff acted as an ordi nari ly prudent person would have acted under th e same or similar circumstances ” an d continued to be “ diligent up until the time the defendant was served.” Proulx , 235 S.W.3d at 216

. It is the plaintiff ’ s b urde n to present evid ence regarding her efforts to serve the defendant and to “explain every lapse in effort or period of d elay.” Id. The question of the plaintiff ’ s diligence is generally one of fact to be “determined by examining the time it took to secu re c itation, service, or both, and the type of

e ffort or lack of effort the plaintiff expended in proc uring service.” Id. If “one or more lapses between service efforts are unexplained or patently unreasonable,” then the record demonstrates lack of dilige nce as a matter of la w. Id. If a lack of diligen c e is established as a matter of law, there is no error in granting summary judgment o n limitation s grounds. Ventura v. Vasquez , No. 01

- 19

- 00240

- CV, 2019 WL 6904545, at *6 (Tex. App.

— Houston [1st Dist.] Dec. 19, 2019, no pet.) (m em. op.)

. C. Lack of diligence as a matte r of law The Ri chardsons alleged that the car accident occurred on October 1, 201 6 , 201 6 , setting October 1, 2018 as the date the two

- year statute of limitations expired. See T EX . C IV . P RAC . & R EM . C OD E § 16.003(a). In her summary

- ju dgment motion , Clack proved that s he w as not served until April 30, 2019, about six months after limitations r an. Thus, Clack met h er initial burden of establishing that7

service was outside the limitations period, and th e bu rden shifted to t he Richardsons to show that they exercised diligence in attempting to serve C lack between the filing of their law suit and the date they achieved service

. See Ashley , 293 S.W.3d at 179; Proulx , 235 S.W.3d at 216. To satisfy their burden , th e Richardsons had to “present evidence regarding the efforts that were made to serve the defen d ant, and to explain every lapse in effort or pe riod of delay.” Proulx , 235 S.W.3d at 2 1 6. The Richardsons ’ summar y - judgment evidence shows their attorney s
r e q uest ed citation and hired a process server in August 2017

. The attorney s follow ed up with the process server ev ery six to eight weeks for more th an a year without any changes in the instructions to the process serv er or any recorded efforts to try new tac tics t o achieve servi ce. As the limitations period expired, the Richardson s ’ attorney s in creased the frequ e ncy of the follow

- up calls but nothing else changed. The process server did not provide a different response to the call s, and the attorney s did not change their tactics for achiev ing service

. This continued for six more mo n ths. It was only when the p rocess server stopped responding al t ogether that the attorney s altered their approach to obtaining service. When the process server stopped takin g calls fro m the law firm in late March 2019

— which was about 19 months after suit was filed and about 5 months after t he limitations period8

expire d

— the firm ’ s attorneys changed their approach. They hired a new process server in mid

- April 2019 . Within a two

- week perio d , the attorneys h ired a new process serv er, requested a new citation , and successfully obtained service on Cla ck

. In attempting to sho w diligence, the Richardsons focus on their attorney s ’ persistence in contacting the process server at schedul ed interval s . But that focus is misplaced. It is “ the responsibility of the person requesting service, a n d not the proces s server, to see that the service is properly accomplished. ” Ventura , 2019 WL 6904545, at *4; see Roberts v. Padre Island Brewing Co., Inc. , 28 S. W.3d 618, 62 1 (Tex . App.

— Corpus Christi 2000, pet. denied). Reliance on the process server does not establish d ue diligence in attempti ng service of process. Ventura , 2019 WL 6904545, at *5; Taylor v. Thompson , 4 S.W.3d 63, 65 (Tex. App.

— Houston [1st Dist. ] 199 9, pet. denie d) (stating that “ any misplaced reliance on the process server does not con stitute due dilig e nce. ” )

. The record does not show proactive steps by the Richardsons t hrough their attorney s to ad dress the lack of service on Clack d uring the 1 9 months that the suit was on file. Nor does it show any effort to s witch to an alternate means of service, a different process server, or a research

- based approach to figur ing out where Clack might be found

. See Franklin v. Longview Med. Ctr. , No. 12

- 18

- 00198

- CV, 2019 WL 2 459020, at *6 (Tex. App.

— Tyler June 5, 2019, no pet.) (m em. op.)9

(holding plaintif

f failed to continuall y exercise du e diligence in attempting to serve defendant when evidence showed that, during two separate periods of inactiv ity, plaintiff relie d on proc ess server to accomplish service without proactively

ensur ing service would be achieved ). According to t he record, it was only when the initial process server failed to respond to the law firm ’ s scheduled follow

- up calls that t he Richardsons ’ atto rneys
con si dered a new approach. Once they tried something else, Clack was served within days. We conclude that, after Clack m et her summary

- judgment burden, the Richardsons did not mee t theirs. Their summary - judgme nt ev id e nce did not r aise a fact i s sue re garding w hether they exercised due diligence during the 19 months Clack w ent without being served, including five mo nths after the limitations period expired. Instead, the evidence conclusively established th at the Richardsons did not

e xercise due diligenc e in effe cting service

. See Ventura , 2019 WL 6904545, at *6 ; Carte r v. MacFayden , 93 S.W.3d 307, 315 (Tex. App.

— Houston [14th Dist.] 2002, pet. denied) (holding that “ a flurry of ineffective activity does not constitute due diligence if easily available an d more ef fective a lternati ves are ignored ” ); see also Davis v. Rob erts , No. 01

- 10

- 00328

- CV, 2011 WL 743198, at *4 (Tex. App.

— H ouston [1st Dist.] Mar. 3, 2011, no pet.) (mem. op.) (noting party offered no expl anation how phone calls to U PS store, where that party ha d a lready sent10

“ fruitless citation , ” could have helped locate other party)

. We h old the trial court properly granted su mmary judgment i n Clack ’ s fa vor because the evidence established a lack of diligence as a matter of law

. We ov errule the Richardso ns ’ sol e issue. C onclusion We affirm

.

Sarah Beth Landau Justice Panel consists of Justices Landau, Hightower, and Countiss.