United States: Texas Court: Service Of Process For Civil Suits Must Occur Within Statute Of Limitations

Or Plaintiff Must Demonstrate Diligence in Effecting Service of Process Soon After the Limitations Period Has Expired

David Schulte is a partner and Lauren R Becker is an Associate in our Dallas office.

HIGHLIGHTS:

  • Under Section 16.003 of the Texas Civil Practice and Remedies Code, a plaintiff must "bring suit" on claims for, among other things, personal injury or wrongful death within a two-year statute of limitations.
  • In a memorandum opinion issued on March 20, 2018, the Texas Fourteenth Court of Appeals held in Christina Molina v. John Gears, et al. that, in addition to filing suit within the limitations period, a plaintiff must also effect service of process on the defendant within the statutory period – or else show diligence in effecting service of process soon thereafter.
  • The holding is an important reminder that, under Texas law, even a timely filed suit is nevertheless barred by limitations if a defendant is served with process after limitations has passed, unless a plaintiff demonstrates due diligence in its attempts at effecting service of process.

Under Section 16.003 of the Texas Civil Practice and Remedies Code, a plaintiff must "bring suit" on claims for, among other things, personal injury or wrongful death within a two-year statute of limitations. Tex. Civ. Prac. & Rem. Code §16.003(a). On March 20, 2018, the Texas Fourteenth Court of Appeals in Houston explained in a memorandum opinion in Christina Molina v. John Gears, et al., No. 14-16-00858-CV, that, in addition to filing suit within the limitations period, a plaintiff must also effect service of process on the defendant within the statutory period – or else show diligence in effecting service of process soon thereafter. The court of appeals held that the plaintiff, Christina Molina, failed to demonstrate that she acted diligently in effecting service of process on defendant John Gears more than one year after Molina filed suit and more than 10 months after the limitations period expired. The court of appeals therefore affirmed the trial court's ruling and dismissed Molina's claims as time-barred.

Background

Molina and Gears were in a car accident on Nov. 8, 2011. Nearly two years later, on Sept. 5, 2013, Molina sued Gears for negligence for causing the accident. Although there are disparities in the record, Molina appears to have waited until Nov. 25, 2013, to first attempt to effect service of process on Gears via a process server, with numerous attempts after that date. Gears was finally served with process on Sept. 22, 2014 – nearly a year after Molina filed her lawsuit and almost three years after the car accident. Molina later amended her petition to assert claims against two additional defendants – All-Star Tire Company Inc. (Gears' employer) and Robert Morin (the owner of All-Star Tire) – and successfully effected service of process on them, albeit also after the limitations period had expired.

Gears, All-Star Tire and Morin filed motions for summary judgment on limitations grounds. Because the defendants demonstrated in their motions that service of process had occurred after the statute of limitations expired, the burden shifted to Molina to show diligence and explain her delay in effecting service of process. Molina did not carry her burden of proof, and the trial court granted summary judgment in favor of Gears, All-Star Tire and Morin. Molina timely appealed the trial court's judgment.

The Fourteenth Court of Appeals Holding

The Fourteenth Court of Appeals agreed with the trial court, finding that Molina failed to demonstrate that she exercised diligence in attempting to serve the defendants. As the appellate court explained, Molina's first attempted service on Gears on Nov. 25, 2013, occurred 81 days after Molina filed her lawsuit and 17 days after limitations had expired on Nov. 8, 2013. Further, Molina did not actually achieve service on Gears until Sept. 22, 2014 – more than one year after filing suit and more than 10 months after the limitations period had expired.

The court found that, even if Molina's initial delay in effecting service did not, on its own, show an absence of diligence, Molina clearly lacked diligence in her subsequent service attempts when she failed to effect service on Gears for more than a year without seeking alternative methods of service. As the court of appeals explained: "Repeated unsuccessful service attempts do not establish diligence." Therefore, the appellate court concluded that, as a matter of law, Molina did not exercise due diligence in effecting service of process on Gears more than 10 months after limitations expired. Similarly, Molina's later attempts to serve All-Star Tire and Morin with process were also untimely.

Takeaways

The holding in Molina is an important reminder that, under Texas law, a timely filed suit is nevertheless barred by limitations if a defendant is served with process after limitations has passed, unless a plaintiff demonstrates due diligence in its attempts at effecting service of process.

The Molina court is in line with other Texas state and federal courts that have held, under Texas law, that similar unexplained delays in effecting service show a lack of due diligence. In addition, like Molina, other Texas courts have held that repeated ineffective service using the same method does not constitute evidence of due diligence

Importantly, the Molina opinion provides valuable lessons for practitioners on both sides of the docket. Plaintiffs should keep in mind that "bring[ing] suit" within the statute of limitations includes filing the lawsuit and effecting service of process within the limitations period – or, if service within that period becomes impossible or impractical, demonstrating diligence in attempting service by documenting and explaining each delay in or unsuccessful attempt at service, and pursuing alternative methods of service if necessary. Defendants, too, have something to learn from this case: Even if a lawsuit is timely filed, a limitations defense could still be available to defendants that are not served with process within the limitations period.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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