In The 

Court of Appeals 

Seventh District of Texas at Amarillo 

 

No. 07-23-00270-CV 

 

JASON BARGER, AN INDIVIDUAL, APPELLANT 

V. 

DGL GROUP, LTD D/B/A HOVER-1, AND JOHN DOES 1-100, INCLUSIVE, APPELLEES 

On Appeal from the 99th District Court 

Lubbock County, Texas 

Trial Court No. DC-2022-CV-1220, Honorable J. Phillip Hays, Presiding 

July 30, 2024 

MEMORANDUM OPINION 

Before QUINN, C.J., and DOSS and YARBROUGH, JJ. 

This appeal concerns whether the statute of limitations was tolled in a product 

liability suit when the defendant was not served with a citation until 148 days after the 

limitations period expired. Appellant, Jason Barger, was allegedly injured on September 

25, 2020, by a product manufactured by Appellee, DGL Group, Ltd. d/b/a Hover-1 (DGL).

1

He filed suit on September 19, 2022, six days before the statute of limitations expired. 

1 Appellant does not dispute that this is the date his cause of action accrued.
2

However, DGL was not served until February 14, 2023, nearly five months later. The trial 

court granted DGL’s motion for summary judgment on limitations grounds. 

On appeal, Barger argues that (1) a 148-day delay in service is not unreasonable 

as a matter of law, (2) DGL failed to specify what an ordinarily prudent person in Barger’s 

position would have done, and (3) DGL was not unduly prejudiced by the delay. We affirm 

the trial court’s judgment.

Analysis

We review a trial court’s summary judgment de novo. See Mann Frankfort Stein 

& Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). In a traditional motion 

for summary judgment, the movant has the burden to show there is no genuine issue of 

material fact and that it is entitled to judgment as a matter of law. Id. A defendant moving 

for summary judgment on an affirmative defense must conclusively prove all elements of 

the defense. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010).

A person must “bring suit” within two years after the cause of action accrues. See

TEX. CIV. PRAC.& REM. CODE § 16.003(a).2 As the Supreme Court of Texas has reiterated, 

the phrase “bringing suit” means more than simply filing the plaintiff’s petition; it also 

includes completing proper service of process on the defendant:

[T]o “bring suit” is a term of art reflecting the traditional requirements to 

satisfy a statute of limitations: filing the petition and achieving service of 

2

“Texas courts have held that this two-year window applies to products-liability actions.” Gutierrez 

v. Ethicon, Inc., 535 F. Supp. 3d 608, 619 (W.D. Tex. 2021) (citing Heckel v. Allen Samuels Chevrolet, No. 

14-07-00254-CV, 2008 Tex. App. LEXIS 705, *9–10 (Tex. App.—Houston [14th Dist.] Aug. 28, 2008, no 

pet.) (mem. op.). 
3

process. Timeliness for just one will not do. Thus, while service follows 

filing, both are prerequisites to “bringing” the suit. The suit is not “brought,” 

and the statute of limitations is not satisfied, until the plaintiff achieves both 

steps.

Tex. State Univ. v. Tanner, 689 S.W.3d 292, 300 (Tex. 2024). Applying these terms to 

the present case, the undisputed evidence shows even though suit was filed six days 

before the limitations period ran, it was not brought until February 14, 2023, approximately 

four months and twenty days after limitations had expired. Per the statute, Barger’s 

lawsuit would be barred by limitations. TEX. CIV. PRAC. & REM. CODE § 16.003(a).

However, our analysis does not end here. Recognizing that some defendants can 

be difficult to serve, Texas courts have sometimes used a common-law workaround to 

mitigate the potentially harsh consequences of a limitations deadline. See Tanner, 689 

S.W.3d at 299 (“The common law thus developed a sensible balance, not to undermine 

but to effectuate the service requirement.”). Courts may permit an otherwise late-filed 

lawsuit to avoid the limitations bar if the plaintiff demonstrates due diligence in serving the 

defendant. Id.; Prouix v. Wells, 235 S.W.3d 213, 215 (Tex. 2007). To use this exception, 

Barger must prove he “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.” Proulx, 235 S.W.3d at 216; Hicks v. Simmons, No. 07-16-00344-CV, 2017 Tex. 

App. LEXIS 4972, at *1–2 (Tex. App.—Amarillo May 31, 2017, no pet.) (mem. op.). 

Determining whether a plaintiff was diligent in securing citation and service involves 

examining whether the plaintiff offered an explanation for every delay, “and not a 

conclusory or cursory one, either.” Tanner, 689 S.W.3d at 299. 
4

Barger’s summary judgment evidence shows that after filing suit six days before 

limitations expired, his counsel became confused upon discovering that DGL was not 

registered with the Texas Secretary of State to do business in Texas. Under the Business 

and Commerce Code, the Secretary of State is deemed to be DGL’s agent for service 

given these circumstances. TEX. BUS. ORGS. CODE § 5.251 (“The secretary of state is an 

agent of an entity for purposes of service of process, notice, or demand on the entity if . . 

. [the entity is a foreign-filed entity] and transacts business in this state without being 

registered as required by Chapter 9.”). Barger elected to pursue service on DGL by other 

means. On November 8, 2022, his counsel requested a citation be issued to obtain 

service on DGL. After receiving a Notice of Intent to Dismiss his suit due to a lack of 

service in February 2023, efforts appear to have been renewed to locate and serve DGL’s 

agent. Accordingly, after locating a summons related to a civil suit against DGL in federal 

district court, counsel obtained a service address for DGL’s agent. DGL was served on 

February 14, 2023.

To summarize: The 148 days between filing the suit and completing service reveal 

only one attempt by Barger to serve DGL in Texas (November 2022) and one successful 

effort in New Jersey (February 2023). Barger provides no explanation for the delays in 

locating and serving DGL, nor does he explain why he did not pursue other available 

alternative service methods. While diligence is typically a question of fact, a lack of 
5

diligence can be established as a matter of law “when one or more lapses between 

service efforts are unexplained or patently unreasonable.” Proulx, 235 S.W.3d at 216.3

To avoid a take-nothing judgment, Barger was required to “present evidence 

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

in effort or period of delay.” Tanner, 689 S.W.3d at 302 (emphasis in original) (cleaned 

up). His failure to provide explanations for the periods of delay in serving DGL 

demonstrates a lack of due diligence as a matter of law. The trial court did not err in 

rendering summary judgment in favor of DGL. We overrule Barger’s three issues. 

Conclusion

The trial court’s judgment is affirmed.

Lawrence M. Doss

 Justice

3 See also Tanner, 689 S.W.3d at 299 (recognizing that the standard for proving diligence may vary 

depending on the difficulty in serving the defendant: “the easier it is to achieve service, the harder it will be 

for a plaintiff to establish diligence during a substantial (or even minor) delay.”).