Roy Glenn Cunningham v. Champion Technologies, Inc.--Appeal from 87th District Court of Leon County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00365-CV

Roy Glenn Cunningham,

Appellant

v.

Champion Technologies, Inc.,

Appellee

From the 87th District Court

Leon County, Texas

Trial Court No. PI-05-367

MEMORANDUM Opinion

Roy Glenn Cunningham contends in his sole issue that the court erred by granting a motion for summary judgment filed by Champion Technologies, Inc. and alleging that Cunningham s claims are barred by limitations because he failed to exercise due diligence in effecting service of process. We will affirm.

Cunningham filed suit on September 26, 2005, the date limitations expired. He alleged that Champion s registered agent could be served at a particular address in Houston. Citation was delivered to a Harris County constable on October 7. The constable attempted to serve Champion on October 17 but found the premises vacant. The constable called Cunningham s attorney that afternoon and advised him that the address was no good. Cunningham s attorney researched the address problem in January 2006 and found the proper address for Champion s agent. The agent was served on February 22.

We conduct a de novo review of a summary judgment. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a traditional summary-judgment motion, the movant must demonstrate that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. See Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). [W]e take as true all competent evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant s favor. Id.

The Supreme Court has recently revisited the applicable procedures when a defendant argues in a summary-judgment motion that the suit is barred by limitations because the plaintiff failed to exercise diligence in effecting service. See Proulx v. Wells, 235 S.W.3d 213, 215-16 (Tex. 2007) (per curiam).

[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. 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. In some instances, the plaintiff s explanation may be legally improper to raise the diligence issue and the defendant will bear no burden at all. In others, 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. 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.

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. 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. at 216 (citations omitted).

Here, Champion focuses on the three-month period between October 17, 2005 when the constable advised Cunningham s attorney that the address for service was no good and the unspecified date in January 2006 when Cunningham s attorney states in his affidavit that he researched the address problem.

According to Proulx, when Champion offered summary-judgment evidence that it was not served until February 22, the burden shifted to Cunningham to explain every lapse in effort or period of delay, and in particular, the three-month delay between October and January. Id.

Here, Cunningham s attorney offered no explanation for this delay. Thus, we hold that this unexplained lapse between service efforts demonstrates a lack of due diligence as a matter of law. Id.; Boyattia v. Hinojosa, 18 S.W.3d 729, 734 (Tex. App. Dallas 2000, pet. denied) (unexplained three-month delay); Holt v. D Hanis State Bank, 993 S.W.2d 237, 241 (Tex. App. San Antonio 1999, no pet.) (same).

Accordingly, we overrule Cunningham s sole issue and affirm the judgment.

FELIPE REYNA

Justice

Before Justice Vance

Justice Reyna, and

Judge Yelenosky[1]

Affirmed

Opinion delivered and filed March 12, 2008

[CV06]

[1] The Honorable Stephen Yelenosky, Judge of the 345th District Court of Travis County, sitting by assignment of the Chief Justice of the Supreme Court of Texas pursuant to section 74.003(h) of the Government Code. See Tex. Gov t Code Ann. 74.003(h) (Vernon 2005).