Guillermo Pitalua v. Jesus B. Valera, Conception Barreras Administratrix of the Estate of Jorge Barreras and Jorgis Barga--Appeal from County Court at Law No 2 of Dallas County

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NO. 12-01-00302-CV













Appellant Guillermo Pitalua appeals the trial court's summary judgment in a suit brought against Concepcion Barreras, Administratrix of the Estate of Jorge Barreras, appellee. In two issues, Pitalua complains that the trial court erred when it granted summary judgment based upon either the statute of limitations or the failure to use due diligence in securing service of process upon Barreras. We affirm.



Pitalua and Jorge Barreras were involved in an automobile collision in which Pitalua was injured. Pitalua sued Jorge Barreras for negligence on October 11, 2000, seven days before the two-year statute of limitations had run. But when he attempted to serve Jorge, he was told that Jorge was deceased. Pitalua also sued Jesus Valera, Jr. and Maria Isabel Valera for negligent entrustment. In response to Pitalua's interrogatories, Maria Valera informed Pitalua that Jorge had died. She also disclosed that Concepcion Barreras, Jorge's wife, was the administrator of the estate. Pitalua received Valera's responses on or about December 6, 2000. Pitalua did not sue Barreras as administrator of Jorge's estate until June 7, 2001, approximately two years and eight months after the date of the collision. She was served with citation on July 5, 2001.

Barreras filed a motion for summary judgment and argued that Pitalua's suit against her was barred by the two-year statute of limitations. She also averred that it was barred by Pitalua's failure to serve Barreras with due diligence. The trial court granted summary judgment without stating the theory upon which it had based its decision. This appeal followed.


Summary Judgment Standard of Review

Pitalua complains that the trial court erred when it granted Barreras's motion for summary judgment. In reviewing a 166a(c) summary judgment, this court must apply the standards established in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985), which are:


1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.


2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.


3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.



For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A movant must either negate at least one essential element of the non-movant's cause of action, or prove all essential elements of an affirmative defense. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). Since the burden of proof is on the movant, and all doubts about the existence of a genuine issue of a material fact are resolved against the movant, we must view the evidence and its reasonable inferences in the light most favorable to the nonmovant. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits and other summary judgment proof. The only question is whether or not an issue of material fact is presented. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952).

Once the movant has established a right to summary judgment, the non-movant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). All theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. Casso v. Brand, 776 S.W.2d 551, 553 (Tex. 1989). When a summary judgment does not specify or state the grounds relied on, as in the instant case, the summary judgment will be affirmed on appeal if any of the grounds presented in the motion are meritorious. See Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995).


Due Diligence in Securing Service

In his second issue, Pitalua complains that the trial court erred if it granted summary judgment based upon his failure to use due diligence in serving Barreras. To toll the statute of limitations, a plaintiff must not only file suit within the limitations period, but also must exercise due diligence in procuring the issuance and service of citation. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990); Brown v. Shores, 2002 Tex. App. LEXIS 2940, at *6 (Tex. App.-Houston [14th Dist.] April 25, 2002, no pet. h.). Due diligence is that diligence to procure service which an ordinarily prudent person would have used under the same or similar circumstances. Li v. University of Tex. Health Sci. Ctr. at Houston, 984 S.W.2d 647, 652 (Tex. App.-Houston[14th Dist.] 1998, pet. denied). Generally, due diligence is a question of fact; however, if no valid excuse exists for plaintiff's failure to timely serve notice of process, the issue can be determined as a matter of law. Id. Texas courts have consistently held that due diligence was lacking as a matter of law based on unexplained lapses of time between filing of suit, issuance of citation, and service. See, e.g., Eichel v. Ullah, 831 S.W.2d 42, 44 (Tex. App.-El Paso 1992, no writ) (two months between filing suit and issuance of citation, and nine months without any activity aimed at finding or serving defendant); Liles v. Phillips, 677 S.W.2d 802 (Tex. App.-Fort Worth 1984, writ ref'd n.r.e.) (two years and one month between filing and service).

In his response to Barreras's motion for summary judgment, Pitalua argued that public policy dictates that the statute of limitations toll after the administrator has been put on constructive notice of a pending lawsuit against the decedent's estate. He also argued that the proper period of time to look at in determining due diligence was the time between filing suit against Barreras and serving her (twenty-eight days). He cited no dispositive authority to support these positions, however. In this case, Pitalua filed his petition seven days before the statute of limitations had run, but failed to name Barreras as a defendant until eight months later. Assuming that limitations had tolled due to Pitalua's mistake of law in suing the deceased instead of Barreras, (1) Pitalua still had a duty to use due diligence to serve the correct party. When Pitalua attempted to serve Jorge, he was apprised of Jorge's death. Two months later, Valera informed Pitalua that Jorge was deceased and that Barreras was the administrator of Jorge's estate. We hold that Pitalua's failure to serve Barreras for approximately six months after being given notice of Jorge's death shows a lack of due diligence as a matter of law. Consequently, the trial court did not err when it granted Barreras's motion for summary judgment.

Because we hold that there was a meritorious theory upon which to grant summary judgment, it is not necessary that we address Pitalua's first issue. Accordingly, we affirm the judgment of the trial court.


Opinion delivered May 22, 2002.

Panel consisted of Worthen, J., and Griffith, J.


1. A plaintiff's petition, which properly named the decedent's administrator as defendant, but which was filed after the applicable two-year statute of limitations had expired, relates back to the plaintiff's timely filed original petition. Price v. Estate of Anderson, 522 S.W.2d 690 (Tex. 1975); see also Gregg v. Barron, 977 S.W.2d 654 (Tex. App.-Fort Worth 1998, pet. denied); Richardson v. Lake, 966 S.W.2d 681 (Tex. App.-San Antonio 1998, no pet.).