The statute of limitations can present issues for attorneys and clients when they begin to get close to that end-date. For a personal injury suit in Texas, a plaintiff must bring suit within two years from the date the cause of action accrues. Accordingly, the plaintiff not only must bring suit within that two-year window, but also must use due diligence to serve the defendant with service of process within the statute of limitations period. A recent opinion out of the Fourteenth Court of Appeals in Texas sheds light on this process and what is considered “due diligence.”
Appellant Christina Molina was involved in a car accident with appellee John Gears on November 8, 2011, Molina v. Gears et al., No. 14-16-00858-CV (Tex. App.—Houston [14th Dist.] 2018). Molina filed suit against Gears on September 5, 2013, under a theory of negligent operation of a motor vehicle. Molina had elected for service by attorney pick-up on October 17, 2013, and the papers were ready on October 23, 2013. However, Molina did not pick up the papers until January 27, 2014. There were disputes and inconsistencies about how many times Molina attempted to serve Gears during 2014 and into 2015. There were also issues about the addresses at which Molina attempted to serve Gears. According to the court, Gears was officially served on September 22, 2014.
Molina then amended her pleadings on April 21, 2015, to include All-Star Tire Company, Inc. and Robert Morin as additional defendants. All-Star Tire and Morin denied Molina’s allegations, plead the affirmative defense of limitations, and filed a traditional motion for summary judgment on limitations grounds on November 4, 2015. Molina responded to this motion for summary judgment on December 9, 2015.
For his part, Gears did not respond until April 14, 2016, at which point he “moved for summary judgment on the grounds that (1) Molina failed to serve him, or (2) Molina failed to exercise diligence in serving him ‘on or before the expiration of the statute of limitations.’” Gears claimed that he appeared to defend himself against an affidavit produced by Molina stating incorrect details of service. Gears moved for submission of his summary judgment motion on May 9, 2016, and Molina requested leave to file an untimely response for May 12, 2016; Molina proceeded to file her response on May 13, 2016. At this point, Gears moved to strike Molina’s response because it was filed after the May 12, 2016 date. The trial court granted summary judgment in favor of defendants on July 28, 2016.
Issue Before the Appellate Court
On appeal, Molina raised four challenges to the summary judgment ruling:
(1) the trial court erred in granting summary judgment in favor of Gears and striking Molina’s summary judgement response; (2) the trial court abused its discretion by denying Molina’s motion for leave to file a late response to Gears’s summary judgment motion; (3) the trial court erred in granting summary judgment on limitations because the appellees failed to negate the applicability of the out-of-state tolling rule; and (4) there are genuine issues of material fact and more than a scintilla of evidence regarding due diligence.
The court affirmed the judgment in favor of appellees because, “as a matter of law, Molina did not exercise due diligence in effecting service after limitations expired….” The date of the accident was November 8, 2011, so the statute of limitations began running on this date. Two years later would be November 8, 2013, and yet the record reflects that although Molina filed suit on September 5, 2013, Gears was not served until September 22, 2014; ten months after the statute of limitations had run out.
The court explained that the issue with Molina’s service was a lack of due diligence. Molina was required to “use the degree of diligence that an ordinarily prudent person would have used under the same or similar circumstances.” Here, Molina offered no reason as to why she waited so long to serve nor why she did not try other methods of service. Barring direct service, the court lists other ways to effectuate service, including service by publication. The court concluded that Molina did not exercise due diligence in serving Gears because she waited too long to begin service and did not try substituted service following her original failed attempts.
Be wary of the statute of limitations as it pertains to your case subject. This case is a cautionary tale of the dangers of waiting too long. Although it can be a strategy to delay filing suit, clients and attorneys need to be aware of their timelines. Pursuant to the rules of professional responsibility, attorneys are to effectively communicate with their clients; this can include keeping your client abreast of upcoming deadlines. This case never even got off the ground because proper procedure was ignored. Service of process rules seem fairly easy to follow, but as the court demonstrated here, there are nuances which can catch people off guard.