Frankie Cooper v. Walgreens Company

Opinion issued March 1, 2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-11-00024-CV

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Frankie Cooper , Appellant

V.

Walgreens

Company , Appellee

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Case No. 0858751

MEMORANDUM OPINION

Frankie Cooper appeals a summary judgment entered in favor of Walgreens

Company on limitations grounds. Cooper

asserts that the trial court erred in granting Walgreens’ motion because she

raised a fact issue on the question of diligence of service. We hold that Cooper did not raise a fact

issue and therefore affirm.

Background

Cooper alleges that she sustained

injuries after slipping and falling in a Walgreens store on October 16,

2006. Cooper sued Walgreens on October

6, 2008, but did not serve it with citation until April 6, 2010 — over eighteen months after the

statute of limitations had run. [1] Walgreens sought summary judgment on

limitations grounds, contending that Cooper had failed to exercise diligence in

serving it. To explain her delay, Cooper

replied that she “had an attorney who should know the law” draft her pro se petition. She

believed that the court “take[s] care of” service. Cooper further explained that she diligently

sought an attorney to take her case, “approach[ ing ]

tens of attorneys on a continuing basis . . . .” The trial court granted Walgreens’ summary

judgment motion.

Discussion

Standard of Review

We review de

novo the trial court’s ruling on a motion for summary judgment. 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 must establish that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of

law. Tex.

R. Civ. P. 166a(c). When a defendant moves for summary judgment, it

must either: (1) disprove at least one essential elements of the plaintiff’s

cause of action, or (2) plead and conclusively establish each essential element

of its affirmative defense, thereby defeating the plaintiff’s cause of action. Cathey v. Booth , 900 S.W.2d 339, 341 (Tex.

1995). To determine if the nonmovant raised a fact issue, we review the evidence in

the light most favorable to the nonmovant , crediting

favorable evidence if reasonable jurors could do so, and disregarding contrary

evidence unless reasonable jurors could not.

See Fielding , 289 S.W.3d at 848 (citing City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005)).

Diligence in Service

A plaintiff

raising a personal injury claim must “bring suit” within two years after the

day that the cause of action accrues. Tex. Civ. Prac . & Rem. Code. Ann. § 16.003(a) (West

Supp. 2009). To

“bring suit” a plaintiff must not only file suit within the limitations period,

but must also exercise diligence in serving the defendant with process. Gant v.

DeLeon , 786 S.W.2d 259, 260 (Tex. 1990) (per curiam ); see also Ashley

v. Hawkins , 293 S.W.3d 175, 179 (Tex. 2009) (service on defendant outside

limitations period valid only if plaintiff exercised diligence in serving

defendant with process); Proulx v. Wells , 235 S.W.3d 213, 215 (Tex.

2007) (per curiam ) (“[a] timely filed suit will not

interrupt the running of limitations unless the plaintiff exercises diligence

in the issuance and service of citation.”).

If

a defendant affirmatively pleads a limitations defense and demonstrates that

service has occurred after the limitations deadline, the burden shifts to the

plaintiff to prove diligence. Ashley , 293 S.W.3d at

179 ; Proulx ,

235 S.W.3d at 216 . To show diligence, a

plaintiff must present evidence showing efforts made to serve the defendant and

must explain every lapse in effort or period of delay. Proulx , 235 S.W.3d at 216 . The question of the plaintiff’s diligence is

generally one of fact to be “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 . But if “one or more lapses between service

efforts are unexplained or patently unreasonable,” then the record demonstrates

lack of diligence as a matter of law. Id.

Cooper

sued Walgreens ten days before the two-year limitations period expired. See Tex. Civ. Prac . & Rem. Code. Ann. § 16.003(a). But Cooper did not serve Walgreens with

citation until April 6, 2010 — over eighteen months after the statute of limitations

had run. Cooper thus has the burden to

prove her diligence and explain her delay in serving Walgreens. See

Ashley , 293 S.W.3d at 179 ; Proulx , 235 S.W.3d at 216 .

Cooper

proffered three explanations: (1) she “had an attorney who should know the law”

draft her pro se petition; (2) she believed that the

court “take[s] care of” service; and (3) she “approached tens of attorneys on a

continuing basis to try to get one to take [her] case.” These explanations fail to demonstrate

diligence in obtaining service on Walgreens as a matter of law because none of

them show any attempt at serving Walgreens.

See Weaver v. E-Z Mart Stores, Inc. , 942 S.W.2d 167 , 169–70 (Tex.

App.—Texarkana 1997, no writ) (affirming summary judgment grant on limitations

grounds against pro se plaintiff because neither ignorance of the law nor

reliance on an attorney constitutes an excuse for delay in service); see also Carter v. MacFadyen ,

93 S.W.3d 307 , 314–15 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (“A

flurry of ineffective activity does not constitute due diligence if easily

available and more effective alternatives are ignored.”); Brown v. Tex. Employment Comm’n , 801

S.W.2d 5, 8 (Tex. App.—Houston [14th Dist.] 1990, writ denied) (party proceeding pro se is held to the same standard as a licensed attorney). Further, courts have consistently held that

unexplained delays in obtaining service, shorter than the delay here,

constitute a lack of due diligence as a matter of law. See, e.g., Weaver ,

942 S.W.2d at 168 (nine months); Webster

v. Thomas , 5 S.W.3d 287, 290 (Tex. App.—Houston [14th Dist.] 1999, no pet.)

( four months); Butler

v. Ross , 836 S.W.2d 833, 836 (Tex. App.—Houston [1st Dist.] 1992, no writ)

(five months).

Conclusion

We

conclude that the trial court properly determined that the summary judgment

evidence fails to raise a fact issue as to reasonable diligence in procuring

service. We therefore affirm the

judgment of the trial court.

Jane

Bland

Justice

Panel

consists of Justices Keyes, Bland, and Sharp.

[1] See Tex.

Civ. Prac . & Rem. Code.

Ann. § 16.003(a) (West Supp. 2009) (establishing two-year

statute of limitations for personal injury actions).