MEMORANDUM OPINION

No. 04-11-00736-CV

Maria VASQUEZ and Mayra A. Vasquez,

Appellants

v.

Humberto AGUIRRE,

Appellee

From the 57th Judicial District Court, Bexar County, Texas

Trial Court No. 2010-CI-16677

Honorable Dick Alcala, Judge Presiding

Opinion by: Catherine Stone, Chief Justice

Sitting: Catherine Stone, Chief Justice

Phylis J. Speedlin, Justice

Steven C. Hilbig, Justice

Delivered and Filed: June 6, 2012

REVERSED AND REMANDED

Maria Vasquez and Mayra A. Vasquez appeal the trial court’s order granting summary 

judgment in favor of Humberto Aguirre. The summary judgment was based on the trial court’s 

conclusion that as a matter of law the Vasquezes failed to establish they exercised due diligence 

in serving Aguirre. Because we conclude a genuine issue of material fact was raised with regard 

to whether the Vasquezes exercised diligence, we reverse the trial court’s judgment and remand 

the cause to the trial court for further proceedings.
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BACKGROUND

The accident giving rise to the underlying lawsuit occurred on October 31, 2008. The 

Vasquezes filed their lawsuit on October 4, 2010; however, Aguirre was not served with citation 

until February 5, 2011, which was after the limitations period expired on October 31, 2010. 

Aguirre moved for summary judgment asserting the Vasquezes’ claims were barred by 

limitations.

BURDEN AND APPLICABLE LAW

“[O]nce a defendant has affirmatively pled the limitations defense and shown that service 

was effected after limitations expired, the burden shifts to the plaintiff to explain the delay.” 

Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007). “Thus, it is the plaintiff’s burden to present 

evidence regarding the efforts that were made to serve the defendant, and to explain every lapse 

in effort or period of delay.” Id. “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 up until the time the defendant was served.” Id. “Generally, the 

question of the plaintiff’s diligence in effecting service is one of fact, and is determined by 

examining the time it took to secure citation, service, or both, and the type of effort or lack of 

effort the plaintiff expended in procuring service.” Id. However, “the plaintiff’s explanation of 

its service efforts may demonstrate a lack of due diligence as a matter of law, as when one or 

more lapses between service efforts are unexplained or patently unreasonable.” Id. “But if the 

plaintiff’s explanation for the delay raises a material fact issue concerning the diligence of 

service efforts, the burden shifts back to the defendant to conclusively show why, as a matter of 

law, the explanation is insufficient.” Id.
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“Texas courts have consistently held that unexplained delays of five and six months in 

requesting issuance and service of citation constitute a lack of due diligence as a matter of law.” 

Zacharie v. U.S. Nat. Res., Inc., 94 S.W.3d 748, 754 (Tex. App.—San Antonio 2002, no pet.). In 

Proulx, the Texas Supreme Court considered whether a nine-month delay between the time the 

suit was filed and substituted service was effected demonstrated lack of diligence as a matter of 

law. 235 S.W.3d at 215-16. The following timeline summarizes the service efforts in Proulx:

• May 2, 2003 – lawsuit filed

• May 20, 2003 – process server received citation

• May 21, 2003 – limitations expired

• May 21, 2003 to July 22, 2003 – eleven attempts to serve at given address

• July 31, 2003 – in-house investigator locates three alternative addresses

• August 5, 2003 to September 17, 2003 – twelve attempts to serve 

• October 17, 2003 to December 5, 2003 – seven attempts to serve by 

second process server

• December 5, 2003 to December 10, 2003 – twenty phone calls made to 

defendant’s brother who resided at defendant’s address

• December 5, 2003 – private investigator hired to locate defendant who 

concludes defendant was moving to evade service and suggests substitute 

service

• January 15, 2004 – motion for substituted service filed

• January 26, 2004 – service effected by substituted service

Id. at 214-15. “The court of appeals identified specific periods of delay in Proulx’s service 

efforts, and concluded Proulx was not diligent in effecting service during these times.” Id. The 

court of appeals specifically noted a nineteen-day period from the lawsuit’s filing to the first 

process server’s receipt of citation; three weeks that passed between dismissal of the suit for 

want of prosecution and the filing of a motion to reinstate; a nearly five-month period that passed 

before Proulx hired a private investigator to locate the defendant; twenty-four days that passed 

before citation was delivered to the second process server; and the overall nine months that 

passed between filing of suit and successful service. Id. at 216-17. Nonetheless, the Texas 

Supreme Court concluded the mere fact “that some periods of time elapsed between service 
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efforts does not conclusively demonstrate that Proulx was not exercising diligence in his efforts 

to locate” the defendant. Id. at 217. “In light of the evidence that was presented regarding 

Proulx’s continuous investigation and repeated service attempts, coupled with evidence that [the 

defendant] was deliberately avoiding service,” the court concluded that the defendant “failed to 

conclusively establish lack of diligence” and held that summary judgment was erroneously 

granted. Id. 

DISCUSSION

In the instant case, the lawsuit was filed on October 4, 2010, and the Vasquezes’ attorney 

retained the services of a process server. The process server stated in her affidavit attached to the 

Vasquezes’ summary judgment response that she attempted to serve Aguirre on October 6, 2010, 

October 8, 2010, October 11, 2010, November 4, 2010, November 17, 2010, January 3, 2011, 

and January 13, 2011. On January 17, 2011, the process server confirmed through an online 

search that the property where service was being attempted was owned by Aguirre and also 

informed the Vasquezes’ attorney of her unsuccessful attempts. The process server was told the 

attorney would further advise her on how to proceed. On February 12, 2011, the process server 

was asked to prepare an affidavit of attempted service for use in filing a motion for alternative 

service. On February 15, 2011, the process server made a final attempt to serve Aguirre and was 

successful.

Although there are some periods of time that elapsed between the service attempts, these 

lapses do not conclusively demonstrate that the Vasquezes were not exercising diligence in their 

efforts to locate Aguirre. See Proulx, 235 S.W.3d at 217. Overall, in a little less than four 

months, eight attempts were made to serve Aguirre, an online search was undertaken to confirm 

Aguirre lived at the address where service was being attempted, and a decision was made and 
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actions were taken to pursue alternative service. Because the Vasquezes offered proof of their 

diligence and an explanation for the delay in serving Aguirre, the burden shifted to Aguirre to 

show why the explanation was insufficient as a matter of law. See id. at 216. We hold that 

Aguirre did not do so. Accordingly, the summary judgment evidence raised a genuine issue of 

material fact as to whether the Vasquezes acted as ordinarily prudent persons would have acted 

under the same or similar circumstances and were diligent up until the time Aguirre was served. 

See id. at 216 (setting forth applicable standard); see also Bolado v. Speller, No. 04-06-00535-

CV, 2007 WL 3270764, at *1-2 (Tex. App.—San Antonio Nov. 7, 2007, no pet.) (mem. op.) 

(holding fact issue raised where service effected on seventh attempt in little over three month 

period). 

CONCLUSION

Because Aguirre failed to conclusively establish lack of diligence by the Vasquezes in 

effecting service, the trial court’s summary judgment is reversed, and the cause is remanded for 

further proceedings.

Catherine Stone, Chief Justice