Cause No. 12-15-00029-CV

IN THE COURT OF APPEALS,

TWELFTH JUDICAL DISTRICT OF TEXAS, TYLER TEXAS

_________________________________________________

TONYA ALLEN, D.D.S., P.A.,

Appellant,

v.

SMITH COUNTY APPRAISAL DISTRICT, 

Appellee.

_________________________________________________

Appealed from the 114th Judicial District Court of Smith County, Texas

Trial Court No. 14-1121-B

The Honorable Christi Kennedy, Presiding

BRIEF OF APPELLEE

Vernique R. Hutchinson Sandra M. Griffin

Texas Bar No. 24066905 Texas Bar No. 00721980 

PERDUE, BRANDON, FIELDER, Christopher S. Jackson

COLLINS & MOTT, L.L.P. Texas Bar No. 00796816

1235 North Loop West, Suite 600 PERDUE, BRANDON, FIELDER,

Houston, TX 77009 COLLINS & MOTT, L.L.P

Telephone: 713.862.1860 3301 Northland Dr., Suite 505

Facsimile: 713.862.1429 Austin, TX 78731

Email: vhutchinson@pbfcm.com Telephone: 512.302.0190

Facsimile: 512.323.6963

Email: sgriffin@pbfcm.com

Email: cjackson@pbfcm.com

COUNSEL FOR APPELLEE,

SMITH COUNTY APPRAISAL DISTRICT

ORAL ARGUMENT WAIVED

ACCEPTED

12-15-00029-CV

TWELFTH COURT OF APPEALS

TYLER, TEXAS

7/30/2015 2:18:43 PM

CATHY LUSK

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 7/30/2015 2:18:43 PM CATHY S. LUSK Clerk
IDENTITY OF PARTIES & COUNSEL

Pursuant to Texas Rules of Appellate Procedure 38.1(a) and 38.2(a)(1)(A), 

the appellee adopts the identities of parties and counsel as listed by the appellant, 

Tonya Allen, D.D.S., P.A., and adds the following: 

Smith County

Appraisal District

Defendant / Appellee

Christopher S. Jackson

Texas Bar No. 00796816

PERDUE, BRANDON FIELDER, COLLINS &

MOTT L.L.P.

3301 Northland Dr., Suite 505

Austin, TX 78731

Telephone: 512.302.0190

Facsimile: 512.323.6963

Email: cjackson@pbfcm.com

Vernique R. Hutchinson

Texas Bar No. 24066905

PERDUE, BRANDON, FIELDER, 

COLLINS & MOTT, L.L.P.

1235 North Loop West, Suite 600

Houston, TX 77009

Telephone: 713.862.1860

Facsimile: 713.862.1429

Email: vhutchinson@pbfcm.com

Appellate Counsel for Smith County

Appraisal District
ii

TABLE OF CONTENTS

Identity of Parties, Counsel & Trial Court............................................................ i

Table of Contents....................................................................................................ii

Index of Authorities............................................................................................... iv

Statement of the Case ............................................................................................ ix

Statement Regarding Oral Argument ................................................................. xi

Party and Record References ............................................................................. xii

Issue Presented.....................................................................................................xiii

Standard of Review..............................................................................................xiii

I. Introduction .................................................................................................... 1

II. Statement of Facts.......................................................................................... 2

III. Standard of Review ....................................................................................... 5

IV. Burden ........................................................................................................... 6

V. Summary of the Argument............................................................................ 8

VI. Argument & Authorities ............................................................................. 9

A. Because the District has plead limitations and shown Allen 

effected service after the limitations period had expired, Allen 

has the burden to show it acted diligently.

.....9
iii

B. Allen’s explanation and the facts in this matter when 

applied to Texas case law prove a lack of diligence in 

effecting service as a matter of law. 

C. Allen’s actions were not diligent under the plain meaning 

of the term.

VII. Conclusion & Prayer ............................................................................... 18

Certificate of Compliance .................................................................................... 21

Certificate of Service............................................................................................. 22

....11

....17
iv

INDEX OF AUTHORITIES

TEXAS STATUTES

Tex. Tax Code Ann. § 25.25(d) (West 2013) .......................................................... 2

Tex. Tax Code Ann. § 42.21(a) (West 2013) .......................................... 2, 3, 10, 14

Tex. Tax Code Ann. § 42.21(d) (West 2013) ........................................................ 15

TEXAS RULES & REGULATIONS

Tex. R. App. P. 38.1(e) ........................................................................................... xi

Tex. R. App. P. 38.2(a)(1)(B) ...............................................................................xiii

Tex. R. App. P. 39.1 ................................................................................................ xi

Tex. R. App. P. 39.1(b) ........................................................................................... xi

Tex. R. App. P. 39.1(c) ........................................................................................... xi

Tex. R. App. P. 39.1(d) ........................................................................................... xi

Tex. R. App. P. 39.7 ................................................................................................ xi

Tex. R. Civ. P. 103 ................................................................................................. 15

Tex. R. Civ. P. 106 ................................................................................................. 15

Tex. R. Civ. P. 166a(c) ............................................................................................ 5
v

TEXAS SUPREME COURT CASES

Amedisys, Inc. v. Kingwood Home Health Care, LLC, 

437 S.W.3d 507 (Tex. 2014) .................................................................................... 5

City of Keller v. Wilson, 

168 S.W.3d 802 (Tex. 2005) .................................................................................... 6

Cockrell v. Estevez, 

737 S.W.2d 138 (Tex. 2002) .................................................................................. 12

Delgado v. Burns, 

656 S.W.2d 428 (Tex. 1983) .................................................................................... 6

Gant v. DeLeon, 

786 S.W.2d 259 (Tex. 1990) .................................................................... 7, 9, 10, 19

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding., 

289 S.W.3d 844 (Tex. 2009) .................................................................................xiii

Murray v. San Jacinto Agency, Inc., 

800 S.W.2d 826 (Tex. 1990) .................................................................................... 9

Nixon v. Mr. Prop. Mgmt. Co., 

690 S.W.2d 546 (Tex. 1985) .................................................................................... 5

Primate Constr. Inc. v. Silver, 

884 S.W.2d 151 (Tex. 1994) .................................................................................. 12

Proulx v. Wells, 

235 S.W.3d 213 (Tex. 2007) ................................................................ 6, 7, 9, 10, 19

Rigo Mfg. Co. v. Thomas, 

458 S.W.2d 180 (Tex. 1970) .................................................................................... 9

Roark v. Stallworth Oil & Gas, Inc., 

813 S.W.2d 492 (Tex. 1991) .................................................................................... 6
vi

Valence Operating Co. v. Dorsett, 

164 S.W.3d 656 (Tex. 2005) .............................................................................xiii, 5

Zale Corp. v. Rosenbaum, 

520 S.W.2d 889 (Tex. 1975) .................................................................................... 9

12TH DISTRICT COURT OF APPEAL CASES

Pitula v. Valera, 

No. 12-01-00302-CV, 2002 WL 1065971

(Tex. App.—Tyler May 22, 2002, no pet.) 

(not designated for publication) ........................................................................... 7, 9

Valerus Compression Serv. v. Gregg Cnty. Appraisal Dist.,

457 S.W.3d 520 (Tex. App.—Tyler 2015, no pet) .................................................. 5

OTHER TEXAS COURTS OF APPEAL CASES

Bilinsco Inc. v. Harris Cnty. Appraisal Dist.,

321 S.W.3d 648 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) .................. 7, 9

Boyattia v. Hinojosa, 

18 S.W.3d 729 (Tex. App.—Dallas 2000, pet. denied) ......................................... 12

Broom v. MacMaster, 

992 S.W.2d 659 (Tex. App.—Dallas 1999, no pet.) .......................................... 9, 10

Brown v. Shores, 

77 S.W.3d 884 (Tex. App.—Houston [14th Dist.] 2002, no pet.) ............................ 7

Butler v. Ross, 

836 S.W.2d 833 (Tex. App.—Houston [1st Dist.] 1992, no writ) .......................... 13
vii

Hansler v. Mainka, 

807 S.W.2d 3 (Tex. App.—Corpus Christi 1991, no writ) .............................. 13, 16

Hodge v. Smith,

856 S.W.2d 212 (Tex. App.—Houston [1st Dist.] 1993, writ denied) ..................... 7

Holt v. D’Hanis State Bank, 

993 S.W.3d 237 (Tex. App.—San Antonio 1999, no pet.) ........................ 13, 14, 19

In re Buggs, 

166 S.W.3d 506 (Tex. App.—Texarkana 2005 orig. proceeding) ......................... 12

Li v. Univ. of Tex. Health Sci. Ctr., 

984 S.W.2d 647 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) ................. 13

Martinez v. Becerra, 

797 S.W.2d 283 (Tex. App.—Corpus Christi 1990, no writ) .................................. 9

Mauricio v. Castro, 

287 S.W.3d 476 (Tex. App.—Dallas 2009, no pet.) .............................................. 13

Perkins v. Groff, 

936 S.W.2d 661 (Tex. App.—Dallas 1996, writ denied) ...................................... 13

Perry v. Kroger Stores, Store No. 119, 

741 S.W.2d 533 (Tex. App.—Dallas 1987, no writ) ............................................... 7

Reynolds v. Alcorn, 

601 S.W.2d 785 (Tex. App.—Amarillo 1980, no writ) ........................................... 8

Rodriguez v. Tinsman & Houser, Inc., 

13 S.W.3d 47 (Tex. App.—San Antonio 1999, pet. denied) ............................. 7, 13

Slagle v. Prickett, 

345 S.W.3d 693 (Tex. App.—El Paso 2011, no pet.) .......................... 13, 14, 16, 19
viii

Tarrant Cnty. v. Vandigriff,

71 S.W.3d 921 (Tex. App.—Fort Worth 2002, pet. denied) ................................... 7

Tate v. Beal,

119 S.W.3d 378 (Tex. App.—Fort Worth 2003, pet. denied) ................................. 7

Valdez v. Charles Orsinger Buick Co., 

715 S.W.2d 126 (Tex. App.—Texarkana 1986, no writ) ........................................ 7

Webster v. Thomas, 

5 S.W. 3d 287 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ..... 12, 13, 14, 15, 16

Zacharie v. U.S. Nat’l Res., Inc., 

94 S.W.3d 748 (Tex. App.—San Antonio 2002, no pet.) .................................. 7, 19

OTHER 

Diligence Definition, Merriam-Webster.com, 

http://www.merriam-webster.com/dictionary/diligence

(last visited July 28, 2015) ..................................................................................... 17
ix

STATEMENT OF THE CASE

Pursuant to Texas Rules of Appellate Procedure 38.1(d) and 

38.2(a)(1)(B), the District states as follows: 

Nature of 

The Case:

This is an ad valorem tax case. Allen filed suit against 

the District within limitations but served the District 3 

months after the limitations period expired. The issue is 

whether Allen’s service of citation was diligent as a 

matter of law for it to relate back and her suit to be 

timely. 

Trial Court: Cause No. 14-1121-B

114th Judicial District, Smith County, Texas

The Honorable Christi Kennedy, presiding

Course of 

Proceedings:

On November 26, 2013, the property owner filed a 

motion to correct the appraised value for the 2013 tax 

year. CR 47. A hearing was held on January 23, 2014. 

CR 49. The Smith County Appraisal Review Board 

issued an adverse determination on March 12, 2014. CR 

49, 51. Allen received the order on March 14, 2014. CR 

51. On April 28, 2014, Allen timely filed a petition for a 

trial de novo in the 114th District Court, Smith County, 

Texas, the Honorable Christi Kennedy, presiding. CR 49, 

1-3. The limitations period expired on May 13, 2014. 

Allen requested and paid for service on the District on 

August 6, 2014, approximately 3 months after the 

limitations period had run. CR 60, 68, 93. The District 

was served on August 11, 2014. CR 18, 20.
x

The District answered on August 13, 2014. CR 6-16, 93. 

The District on November 20, 2014 filed a first amended 

answer asserting the affirmative defense of limitations. 

CR 32-35. On December 30, 3014, Allen filed a 

response. CR 54-60. A hearing on the District’s motion 

for summary judgment was held on January 8, 2015. CR 

52. 

Trial 

Court’s 

Disposition:

On January 14, 2015, the 114th District Court, the 

Honorable Christi Kennedy, presiding, granted the 

District’s motion for summary judgment where it had 

asserted limitations. CR 75.
xi

STATEMENT REGARDING ORAL ARGUMENT

This case presents an important, but not unusually complex, question. 

This case would extend the jurisprudence on the issue of diligent service in 

Texas as applied to the arena of ad valorem taxation and in the jurisdiction 

of the Twelfth Court. 

The District contends that this case is limited to a pure question of law 

concerning limitations when the appellant requested and effected service 

three months after the limitations period expired. The issue presented 

requires review of relatively simple statutes and cases from the Texas 

Supreme Court, this Honorable Court and its sister courts of appeal. As a 

result, Tex. R. App. P. 39.1(b), (c) or (d) may be applicable to this case.

The appellant did not request, and therefore has waived, oral 

argument. Tex. R. App. P. 38.1(e), 39.1. The District believes that its 

briefing herein is sufficient to establish the appellant’s lack of diligence in 

effecting service as a matter of law. Therefore, in accordance with Tex. R. 

App. P. 39.7, this is notice that the District also waives oral argument, unless 

the Court would find argument helpful.
xii

PARTY & RECORD REFERENCES

In this brief, the appellant, Tonya Allen, D.D.S., P.A., will be referred to as 

“appellant” or “Allen.” 

The appellee, Smith County Appraisal District, will be referred to as 

“appellee” or “the District.” 

In this brief, the following record citation forms will be used:

• Clerk’s Record will be cited as “CR [page].”
xiii

ISSUE PRESENTED

Pursuant to Tex. R. App. P. 38.2(a)(1)(B), the appellee is dissatisfied with 

the issue presented by the appellant. 

The issue for this Court to resolve is: When the appellant filed suit within the 

period of limitation but did not request or pay for the issuance and service of 

citation until three-months after limitations expired, as a matter of law, did the 

appellant continuously exercise diligence in procuring the issuance and service of 

citation on the District, so that service relates back to the date her lawsuit was filed 

and would be within the limitations period? 

STANDARD OF REVIEW

This Court reviews a trial court’s ruling on a motion for summary judgment

de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); 

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 

(Tex. 2009).
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 1

NO. 12-15-00029-CV

IN THE TWELFTH COURT OF APPEALS

TYLER, TEXAS

TONYA ALLEN, D.D.S., P.A., 

Appellant,

v.

SMITH COUNTY APPRAISAL DISTRICT, 

Appellee.

APPELLEE’S BRIEF 

TO THE HONORABALE JUSTICES OF THE TWELFTH COURT OF 

APPEALS:

NOW COMES the appellee, Smith County Appraisal District (hereinafter the 

“District”), and submits its Brief as follows: 

I. INTRODUCTION

The appellant, Tonya Allen (“Allen”), appeals a summary judgment in favor 

of the District in a dispute over an ad valorem tax matter. Following the receipt of 

an order determining her administrative protest to the Smith County Appraisal 

Review Board (hereinafter “ARB”), Allen had sixty (60) days to file her lawsuit. 
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 2

Tex. Tax Code Ann. § 42.21(a) (West 2013). Although Allen filed her lawsuit during 

the limitations period, she failed to serve the District until 105 days after her petition 

was filed in district court, which was three-months after the limitations period 

expired. The issue presented in this appeal is, as a matter of law, did Allen 

continuously exercise diligence in procuring the issuance and service of citation on 

the District, so that service relates back to the date her lawsuit was filed and would 

be within the limitations period? The Court should affirm the trial court’s judgment 

that the appellant’s actions in effecting service were not diligent and therefore her 

suit was not filed timely as a matter of law. 

II. STATEMENT OF FACTS

Allen’s property is located in Smith County, Texas. It is described as ABST 

A1118 J Sanders Tract 2X.2 (PT of 4.07 AC/SEE TR 2X) and is known to the 

District as Account Number 100000111800002242. CR 44 at ¶ 3, CR 47, 49. 

The Tax Code allows property owners to file a protest if they disagree with 

their appraised value. For the 2013 tax year, Allen failed to timely file a protest for 

relief under Chapter 41 of the Texas Property Tax Code on the subject property. On 

November 26, 2013, Allen filed a motion to correct the appraised value, a later and 

stricter form of relief, pursuant to Tax Code § 25.25(d), to contest the value placed 

on her property. CR 47. The ARB heard Allen’s motion to correct on January 23, 
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 3

2014. CR 49. The ARB ruled against Allen by deciding that the appraisal records 

were correct and no changes were to be made. CR 49. The ARB issued its final order 

on March 12, 2014. CR 49, 51. Allen received the ARB’s order on March 14, 2014. 

CR 51. The limitations deadline for Allen to file her suit was Tuesday, May 13, 2014, 

which is sixty (60) days after receipt of the ARB’s order. Tex. Tax Code Ann. § 

42.21(a) (West 2013).

Allen appealed the ARB’s order to the trial court by electronically filing an 

original petition on April 28, 2014. CR1-3. Several months went by with no action 

in the case. The record shows that Allen did not request or pay for citation and its 

service until August 6, 2014. CR 4-5, 68, 93. 

After the request and payment were made, the Smith County District Clerk 

issued citation. CR 93, 4. The citation was finally served 105 days after Allen filed 

her original petition. The petition was served on the District at its office, through a 

manager, Carol Dixon, on August 11, 2014. CR 18, 20. The District filed its original 

answer, asserting a general denial, a plea to the jurisdiction, and a motion to dismiss 

on August 13, 2014. CR 6-16, 93. 

The District filed its first amended original answer that included a general 

denial, the affirmative defense of limitations, and special exceptions on November 

20, 2014. CR 32-35. The District then filed a motion for summary judgment on 
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 4

November 24, 2014, based on the appellant’s failure to bring suit within the 

limitations period contending that Allen lacked diligence in effecting service after

the limitations period had expired. CR 36-51. 

On December 30, 2014, Allen filed her response to the District’s motion for 

summary judgment. CR 54-60. The response included an affidavit from Allen’s 

counsel, Mr. Michael W. Eaton. CR 59-60. In his affidavit, appellant’s counsel 

provided no real explanation of his efforts to effect service for the 60-90 days after 

the petition had been filed. Mr. Eaton stated in his affidavit that he “performed a 

routine diligence review of the file in July 2014.” CR 60. Mr. Eaton found no answer 

from the District in his file upon his review. CR 60. Mr. Eaton also essentially states 

he has a good working relationship with opposing counsel who represent appraisal 

districts, yet he did not contact counsel for the District to determine why there was 

no answer. CR 60. Mr. Eaton apparently did not review his file closely enough in 

July to discover that the fees for issuing and serving citation had not been paid. Mr. 

Eaton also stated in his affidavit, at some point after his review of the file in July, 

his assistant finally contacted the court clerk and was informed service had not been 

completed. CR 60. 

What the appellant’s counsel does not state clearly or at all in his affidavit is 

that his letter, sent on August 6, 2014, constituted his first request and payment
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 5

for the citation, service of citation, and an electronic filing fee. CR 60, 68, 93. That 

is why service had not been completed, he had never requested service until August 

for a suit that was filed in April.

On January 8, 2015, a hearing was held on the District’s motion for summary 

judgment. CR 52. On January 14, 2015, Judge Christi Kennedy issued an order on 

the District’s objections to Mr. Eaton’s affidavit and also granted the District’s 

motion for summary judgment. CR 74-75. This appeal ensued. CR 76-78.

III. STANDARD OF REVIEW

The Court reviews a trial court’s ruling on a motion for summary judgment

de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005);

Valerus Compression Serv. v. Gregg Cnty. Appraisal Dist.,457 S.W.3d 520, 524 

(Tex. App.—Tyler 2015, no pet). The party moving for traditional summary 

judgment bears the burden of showing no genuine issue of material fact exists and it 

is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Amedisys, Inc. v. 

Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014); Nixon v. Mr. 

Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). Once the movant has 

established a right to summary judgment, the non-movant has the burden to respond 

to the motion and present to the trial court any issues that would prelude summary 

judgment. Amedisys, 437 S.W.3d at 511; Valerus Compression Serv.,457 S.W.3d at 
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 6

524. The Court is to review the evidence in the light most favorable to the party 

against whom the summary judgment was rendered, crediting evidence favorable to 

that party if reasonable jurors could, and disregarding contrary evidence unless 

reasonable jurors could not. Id. (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 

(Tex. 2005)); Nixon, 690 S.W.2d at 549.

IV. BURDEN

Limitations is an affirmative defense and may serve as the basis for a trial 

court’s summary judgment. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 

494 (Tex. 1991). A defendant who asserts the running of limitations as a bar to a 

cause of action bears the burden of showing that limitations barred the suit. Delgado 

v. Burns, 656 S.W.2d 428, 429 (Tex. 1983). 

In a case where a defendant files for summary judgment on a diligent service 

question, and the defendant affirmatively pleads a limitations defense and shows 

service was effectuated after the limitations period expired, a plaintiff then bears the 

burden to “explain every lapse in effort or period of delay” in service. See Proulx 

v. Wells, 235 S.W.3d 213, 216 (Tex. 2007)(emphasis added). But, if the plaintiff’s 

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

service efforts undertaken, “the burden shifts back to the defendant to conclusively 

show why, as a matter of law, the explanation is insufficient....” Id.
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 7

However, a lack of due diligence can be found as a matter of law if the plaintiff 

offers no valid excuse for the lack of service, or if the lapse of time and the plaintiff’s 

acts, or inaction, are unexplained or patently unreasonable. See Proulx, 235 S.W.3d 

at 216; Zacharie v. U.S. Nat’l Res., Inc., 94 S.W.3d 748, 754 (Tex. App.—San 

Antonio 2002, no pet.)(explanation affirmatively established lack of diligence); 

Pitula v. Valera, No. 12-01-00302-CV, 2002 WL 1065971, at *2 (Tex. App.—Tyler 

May 22, 2002, no pet.) (not designated for publication). See also Gant v. DeLeon, 

786 S.W.2d 259, 260 (Tex. 1990); Bilinsco Inc. v. Harris Cnty. Appraisal Dist., 321 

S.W.3d 648, 652 (Tex. App.—Houston [1st Dist.] 1998, pet. denied); Brown v. 

Shores, 77 S.W.3d 884, 887(Tex. App.—Houston [14th Dist.] 2002, no pet.); Tarrant 

Cnty. v. Vandigriff, 71 S.W.3d 921, 925–26 (Tex. App.—Fort Worth 2002, pet. 

denied); Rodriguez v. Tinsman & Houser, Inc., 13 S.W.3d 47, 49 (Tex. App.—San 

Antonio 1999, pet. denied); Perry v. Kroger Stores, Store No. 119, 741 S.W.2d 533, 

534 (Tex. App.—Dallas 1987, no writ); Valdez v. Charles Orsinger Buick Co., 715 

S.W.2d 126, 127 (Tex. App.—Texarkana 1986, no writ).

In “assessing diligence, the relevant inquiry is whether the plaintiff acted as 

an ordinary prudent person would have acted under the same or similar 

circumstances and was diligent up until the time the defendant was served.” See

Proulx, 235 S.W.3d at 216; see also Pitula, 2002 WL 1065971, at *2; Tate v. Beal,

119 S.W.3d 378, 381 (Tex. App.—Fort Worth 2003, pet. denied); Hodge v. Smith,
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 8

856 S.W.2d 212, 215 (Tex. App.—Houston [1st Dist.] 1993, writ denied); Reynolds 

v. Alcorn, 601 S.W.2d 785, 788 (Tex. App.—Amarillo 1980, no writ).

V. SUMMARY OF THE ARGUMENT

To timely bring suit one must file an action timely and serve the defendant. In 

this case, Allen filed suit within limitations but served the District after limitations 

expired. In such instances, the date of service may relate back to the filing and be 

timely if the plaintiff continuously exercises diligence in effecting service. The 

District has presented the proper predicates to place the burden on Allen to prove 

she continuously exercised diligence in effecting service. Allen’s thin explanations 

to show diligence avoid the fact that she did not request or pay for citation and 

service until approximately three-months after the limitations period for filing her 

suit had expired. CR 4-5, 60, 68, 93. As a matter of law, Allen did not continuously 

exercise diligence in procuring the issuance and service of citation on the District, 

so that service relates back to the date her lawsuit was filed. Her lawsuit against the 

District therefore does not relate back to the time of filing and is and is outside the 

limitations period, and should be barred. The trial court’s summary judgment in 

favor of the District should be affirmed.
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 9

VI. ARGUMENT & AUTHORITIES

A. Because the District has plead limitations and shown Allen effected 

service after the limitations period had expired, Allen has the burden to 

show it acted diligently.

In one point of error, Allen contends that the trial court erred in granting 

summary judgment for the District because she timely brought suit by filing within 

the 60-day applicable statutory limitations period and claims to have exercised 

diligence by effecting service 105 days later.

The established rule holds merely filing a lawsuit is not bringing suit within the 

limitations period. To bring suit, a plaintiff must both file her action and have the 

defendant served with process. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 

830 (Tex. 1990)(emphasis added); Broom v. MacMaster, 992 S.W.2d 659, 664 (Tex. 

App.—Dallas 1999, no pet.); Pitula, 2002 WL 1065971, at *2.

When a plaintiff files suit within the limitations period, but fails to serve the 

defendant until after the statutory period has expired, the date of service may relate

back to the date the plaintiff filed suit only if the plaintiff exercises diligence in 

effecting service. See Proulx, 235 S.W.3d at 215 (emphasis added); Gant, 786 

S.W.2d at 260; Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 890 (Tex. 1975); Rigo 

Mfg. Co. v. Thomas, 458 S.W.2d 180, 182 (Tex. 1970); Bilinsco Inc., 321 S.W.3d at

652; Martinez v. Becerra, 797 S.W.2d 283, 284 (Tex. App.—Corpus Christi 1990, 
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 10

no writ). The duty to exercise diligence continues until service of process is 

achieved. Broom, 992 S.W.2d at 664. If diligence is not exercised, the lawsuit is 

deemed filed on the date of service. Gant, 786 S.W.2d at 260.

In this case, it is undisputed that service was effected after limitations had run. 

Allen received the ARB’s order on March 14, 2014. CR 51. Allen’s deadline to file 

suit was Tuesday, May 13, 2014, which was 60 days after receipt of the order. See 

Tex. Tax Code Ann. § 42.21(a) (West 2013); CR 51. Allen appealed the ARB’s 

order to the trial court by electronically filing an original petition on April 28, 2014. 

CR1-3. Allen did not request and/or pay the fees for citation and its issuance until 

August 6, 2014. CR 4-5, 60, 68, 93. The District was finally served on on August 

11, 2014, which was approximately 3 months after limitations had expired. CR 51, 

18, 20. The District answered and later filed for summary judgment, plead 

limitations, and showed service was after the limitations period expired. CR 6-16, 

32, 35, 36-51, 18, 20, 44. Therefore, the burden is on the appellant to explain every 

lapse in effort or period of delay in service to avoid summary judgment. See 

Proulx, 235 S.W.3d at 216 (emphasis added).
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 11

B. Allen’s explanation and the facts in this matter when applied to Texas 

case law prove a lack of diligence in effecting service as a matter of law. 

Allen’s first explanation for the delay in service is “confusion in electronic 

filing.” See Appellant’s Brief at pg. 11; CR 54-55, 59-60. Allen’s counsel represents 

plaintiffs and should be very familiar with the rules and process in procuring the 

issuance and service of citation. In his affidavit, Allen’s counsel establishes that he 

has “handled literally hundreds of similar lawsuits over the thirty years [he has] been 

practicing law” and that he is “extremely familiar with legal issues and rules 

affecting property tax litigation.” CR 59. Mr. Eaton also appears to be more “hands 

on” than most attorneys in the filing of lawsuits, as he also swore in his affidavit that 

he personally observed his assistant electronically file the petition in this case and 

that when the “petition was filed, the ‘efile’ box and the ‘service’ box were both 

checked.” CR 60. The reason why service was not effected was because Allen did 

not properly request citation and did not pay the fees for citation and service until 

August 6, 2014. CR 4-5, 60, 68, 93. Mr. Eaton’s affidavit and explanation for the 

delay are in conflict.

Allen’s next explanation appears to blame the district clerk for the lack of 

citation being issued and service not being completed timely. CR 56, 59-60. Allen 

notes that “[t]he filing was noted as ‘accepted’ by the Smith County District Clerk 
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 12

and no communications of any kind from the Smith County District Clerk informed 

the filing attorney or his office that any other action was required to effectuate 

service of process on the Defendant Central Appraisal District.” CR 56.

Texas law, however, is clear that it is the plaintiff, not the process server or 

the district clerk, who is responsible for ensuring that service is properly 

accomplished. Cockrell v. Estevez, 737 S.W.2d 138, 140 (Tex. 2002); Primate 

Constr. Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994); In re Buggs, 166 S.W.3d 

506, 508 (Tex. App.—Texarkana 2005 orig. proceeding). For example, the Fifth 

Court has held that a plaintiff’s failure to follow up or act for three months when the 

clerk’s inaction held up service constituted a lack of diligence as a matter of law. See 

Boyattia v. Hinojosa, 18 S.W.3d 729, 734 (Tex. App.—Dallas 2000, pet. denied).

But, in this case, the reason why citation was not issued was not the fault of the clerk,

it was because Allen did not properly request citation and did not pay the fees for 

citation and service until August 6, 2014—which was almost 3 months after the 

limitations period had run. CR 4-5, 60, 68, 93. 

In determining diligence, an important factor for the Court is the length of 

delay in service. Webster v. Thomas, 5 S.W. 3d 287, 290 (Tex. App.—Houston [1st

Dist.] 1999, no pet.) Although the Texas Rules of Civil Procedure do not state a 

specific period of time that shows per se diligence (or a lack thereof) in obtaining 
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 13

service, numerous cases have addressed this issue. Mauricio v. Castro, 287 S.W.3d 

476, 480 (Tex. App.—Dallas 2009, no pet.)(holding suit barred by limitations when 

plaintiff failed to explain 31 day delay between expiration of limitations and 

service); Rodriguez, 13 S.W.3d at 51 (upholding summary judgment based on 

expiration of limitations because plaintiff failed to explain 25 day delay between 

expiration of limitations and service); Perkins v. Groff, 936 S.W.2d 661, 668 (Tex. 

App.—Dallas 1996, writ denied)(upholding summary judgment based on expiration 

of limitations because plaintiff failed to explain 18 day delay between expiration of 

limitations and service); Slagle v. Prickett, 345 S.W.3d 693, 697 (Tex. App.—El 

Paso 2011, no pet.)(3 month delay in requesting service after filing suit and 

expiration of limitations not diligent as a matter of law); Holt v. D’Hanis State Bank, 

993 S.W.3d 237, 241 (Tex. App.—San Antonio 1999, no pet.)(3 month delay in 

procuring service after expiration of limitations not diligent as a matter of law);

Webster, 5 S.W. 3d at 291 (4 month delay negated diligence); Li v. Univ. of Tex. 

Health Sci. Ctr., 984 S.W.2d 647, 652 (Tex. App.—Houston [14th Dist.] 1998, pet. 

denied)(upholding summary judgment based on expiration of limitations because 

plaintiff filed suit near deadline but failed to explain not seeking service for 2 and a 

half months after expiration of limitations); Butler v. Ross, 836 S.W.2d 833, 835-

36 (Tex. App.—Houston [1st Dist.] 1992, no writ) (5 1⁄2 month delay in service after 

return of unserved original citation was not diligent); Hansler v. Mainka, 807 S.W.2d 
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 14

3, 5 (Tex. App.—Corpus Christi 1991, no writ) (upholding summary judgment based 

on expiration of limitations because plaintiff filed suit month prior to deadline but 

failed to diligently effect service for 5 months after expiration of limitations).

Of the cases listed above, this case is most similar to Holt and Slagle. The 

length of delay in effecting service in this case is three-and-a-half months, like those 

in Holt and in Slagle, where the courts in those cases determined the plaintiff was

not diligent in effecting service. Holt, 993 S.W.3d at 241; Slagle, 345 S.W.3d at 698-

99. It is important to note the limitations period in this case is 60-days, which is close

to the 120-day limitations period in Holt. Tex. Tax Code Ann. § 42.21(a) (West 

2013); Holt, 993 S.W.3d at 239. Moreover, like Slagle, the plaintiff in this case did 

not request service until approximately three months following the expiration of the 

limitations period. The result in this case should mirror those in Holt and Slagle.

A plaintiff’s efforts (or lack thereof) are also a significant factor in a court’s 

evaluation of diligence. Webster, 5 S.W. 3d at 290. This case is similar to Webster 

v. Thomas, where the First Court looked at the efforts Webster used in obtaining 

service of citation to determine his diligence. Webster, 5 S.W.3d at 290. During the 

three-month period from the filing of suit to the issuance of citation, Webster’s 

counsel called the (wrong) clerk’s office, several times, to inquire about the citation. 

Id. Once he received the citation, Webster’s counsel sent it to the wrong precinct and 
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 15

there was a two-week period before counsel sent the citation to the correct precinct. 

Webster, 5 S.W.3d at 290-91. The court found that while Webster’s counsel made 

some efforts to procure service during the four months and ten days, those efforts 

were “careless and not persistent.” Id. at 291. The court held that Webster failed to 

use due diligence in serving the suit after it was filed. Id.

Unlike Webster, where counsel in that case made some efforts to procure 

service during the delay, during the 105-day delay in this case, Allen did not attempt 

service on the District one time. Service via a qualified person could not be easier 

than on an appraisal district. See Tex. R. Civ. P. 103, 106. The Tax Code allows an 

appraisal district to be served by service on any employee of the appraisal district 

during normal business hours. Tex. Tax Code Ann. § 42.21(d) (West 2013). The 

appellant could have served the chief appraiser or any employee of the District at an 

address that it has been at for over 30 years. CR 44. The District is open nearly every 

weekday, during normal business hours and has numerous staff available during 

those hours to receive and assist process servers. CR 44. The appellant makes no 

mention of any action taken during the 60-90 days after she filed her suit. Allen’s 

counsel does claim to have made a diligent review of his file in July 2014 and noticed 

the District had not filed an answer. CR 60. There is not explanation as to why his 

review of his file was not made until two and a half months after the suit as filed. 
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 16

Further, in his careful review of the file, he apparently did not notice the service fee 

had not been paid. The appellant also claims to have made a phone call to the clerk 

in July, which is less effort that the counsel for Webster, but that call, like those in 

Webster, effectively did nothing to further service. CR 60. Again, this case is most 

similar to Slagle, where the plaintiff took no actions to obtain service for three 

months following the expiration of the limitations period. Slagle, 345 S.W.3d at 698-

99. The lack of efforts to effectuate service by Allen show a lack of diligence as a 

matter of law. 

This case is also similar to Hansler v. Mainka, 807 S.W.2d 3 (Tex. App.—

Corpus Christi 1991, no writ) where Hansler filed suit within the period of 

limitations but did not cause the issuance of citation for personal service until 5 

months after the limitations period had expired. Id. at 5. Hansler’s attorney did not 

recall requesting service or paying the service costs. Id. The court held that the 

unexplained delay, as a matter of law, was not due diligence. Id.

Like Hansler, the reason the citation was not issued and served for so long is 

because service was not requested properly and/or the fee was not paid when the 

petition was filed. CR 4, 60, 68, 93. The explanation from appellant is void of any 

evidence showing that Allen used diligence in requesting personal service at the time 

she filed her suit. It is also void of any evidence showing that Allen paid the fees 
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 17

covering service costs when the petition was filed. The appellant’s explanation also 

lacks detail as to why there was no action taken 60-90 days after filing her petition 

or any urgency in following up with the reason the District had not filed an answer 

when that was discovered by Allen’s counsel in July 2014, months after the 

limitations period had expired. This unexplained delay in service, after the expiration 

of the statute of limitations is, as a matter of law, not diligent in procuring issuance 

and service of citation. 

C. Allen’s actions were not diligent under the plain meaning of the term.

Moreover, appellant’s actions do not meet the plain meaning of the term 

“diligence.” Webster’s defines “diligence” as “persevering application” or “careful 

and continued hard work.” Diligence Definition, Merriam-Webster.com, 

http://www.merriam-webster.com/dictionary/diligence (last visited July 28, 2015). 

There is nothing persevering, careful, continued, or persistent in appellant’s actions, 

as led by her counsel with 30-years of experience, as previously described in this 

Brief.1

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 It is ironic that in an appeal of a case which centers on diligence, and a key 

fact below is the appellant did not pay the service fee, the appellant’s actions have again 

delayed this matter before this Honorable Court by not timely paying for the clerk’s record 

so it could be filed in an ordinary and efficient manner. CR 4, 60, 68, 93 and CR 84-92. 
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 18

Allen’s actions and explanations offers no valid excuse for the lack of service. 

Instead they show a lack of due diligence as a matter of law. It was not the fault of 

e-filing or the district clerk. The reason why citation was not issued was because 

Allen did not properly request citation and did not pay the fees for citation and 

service until August 6, 2014—which was almost 3 months after the limitations 

period had run. CR 4-5, 60, 68, 93. 

VII. CONCLUSION & PRAYER

Although Allen has provided a “bare-bones” explanation for the delay in 

service, those explanations consist of confusion over electronic filing or blaming the 

clerk. Allen has provided no real explanation why it took 105 days to effect service. 

There is no explanation of the delay in service for 60-90 days after the petition was 

filed. There is no explanation for the delay and lack of urgency in requesting service 

once the appellant was aware in July 2014 that the District had not filed an answer

or been served after the statute of limitations had run. The explanation and lack of 

efforts by Allen are patently unreasonable. They are likely this way because the facts 

are Allen did not properly request service and/or did not pay the fees for it until

August 6, 2014, which is approximately months after the limitations period had 

expired. CR 4-5, 60, 68, 93. 
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 19

The appellant’s lack of an explanation for “every lapse in effort or period of 

delay” in service and the facts in this case in not timely requesting and/or paying for 

service “affirmatively establishes a lack of diligence” as a matter of law. Zacharie, 

94 S.W.2d at 754; Proulx, 235 S.W.3d at 216; Holt, 993 S.W.3d at 241; Slagle, 345 

S.W.3d at 698-99. Consequently, the limitations period was not tolled and Allen’s 

suit should be barred. Gant, 786 S.W.2d at 260. For these reasons, the trial court’s 

summary judgment in favor of the District should be affirmed. 
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 20

Respectfully submitted,

 /s/ Christopher S. Jackson

Sandra Griffin

Texas Bar No. 00791280

Christopher S. Jackson

Texas Bar No. 00796816

PERDUE, BRANDON, FIELDER, 

COLLINS & MOTT, L.L.P.

3301 Northland Drive, Suite 505

Austin, Texas 78731

Telephone: (512) 302-0190

Facsimile: (512) 323-6963

Email: sgriffin@pbfcm.com

Email: cjackson@pbfcm.com

Vernique R. Hutchinson

Texas Bar No. 24066905

PERDUE, BRANDON, FIELDER, 

COLLINS & MOTT, L.L.P.

1235 North Loop West, Suite 600

Houston, TX 77009

Telephone: (713) 862-1860

Facsimile: (713) 862-1429

Email: vhutchinson@pbfcm.com

Attorneys for Appellee,

Smith County Appraisal District
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 21

CERTIFICATE OF COMPLIANCE

1. As required by Texas Rule of Appellate Procedure 9.4(i)(3), I certify that this 

brief complies with the type-volume limitation of Texas Rule of Appellate 

Procedure 9.4(i)(2)(B) and 9.4(i)(1). The Appellee’s Brief contains 4721

words. The undersigned counsel certifies that he relied upon the word count 

of the computer program “Word for Mac Office 2011” used to prepare the 

document.

2. The undersigned counsel also certifies that this brief complies with the 

typeface requirements of Texas Rule of Appellate Procedure 9.4(e). This brief 

has been prepared in a proportionally spaced typeface using “Word for Mac 

Office 2011” in fourteen (14) point “Times New Roman” style font for text 

and thirteen (13) point “Times New Roman” style font for footnotes. 

/s/ Christopher S. Jackson

Christopher S. Jackson

Attorney for Appellee,

Smith County Appraisal District
Tonya Allen, D.D.S., P.A. v. Smith CAD

Appellee’s Brief Page 22

CERTIFICATE OF SERVICE

In accordance with Texas Rule of Appellate Procedure 11(d), I certify that a 

true and correct copy of the foregoing document was served via electronic filing and 

via electronic mail to all parties on the 30th day of July 2015, as follows: 

Counsel for Appellant

Mr. Michael W. Eaton

1701 W. Northwest Highway

Suite 100 

Grapevine, TX 76051

Facsimile: (817) 431-1180

Email: mweaton@eatonlaw.com

/s/ Christopher S. Jackson

Christopher S. Jackson

Attorney for Appellee,

Smith County Appraisal District