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Lack of Service of a Texas Premises Liability Complaint

clothesIt is important to retain an attorney who is diligent about making sure a defendant is served with your complaint. In Oyejobi v. Dollar Tree Stores, a Texas plaintiff slipped and fell in a Dollar Tree Store. Two years later to the day, he sued Dollar Tree, alleging personal injuries and asking for citation and service. Several months later, however, the trial court issued a notice that it would dismiss for lack of prosecution. The citation was issued a few days later, and Dollar Tree was served just under a month later.

Dollar Tree answered the complaint but claimed the case was barred by the statute of limitations. It filed a motion for summary judgment on that basis, arguing that it met its burden to show that it was only served with the complaint after the expiration of the limitations period and that the plaintiff had failed to use diligence to make sure that service was effected.

The plaintiff responded, arguing that his actions to make sure service was effected raised a factual issue as to his diligence. The trial court granted the summary judgment motion, and the plaintiff asked for it to reconsider. The court denied the motion, and the plaintiff appealed.

The appellate court explained that bringing a lawsuit for personal injuries in Texas requires a plaintiff to file suit two years from the time the cause of action accrues, under Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a), and use diligence to make sure it gets served. When service is diligently effected after the expiration of the statute of limitations, the date of service relates back to its filing date.

Generally, it is appropriate for a court to grant summary judgment on a statute of limitations issue if the plaintiff’s explanation of their efforts to serve the papers shows a lack of diligence as a matter of law, or the plaintiff fails to explain the lack of service. The proper question is whether the plaintiff acted as an ordinarily prudent person would, considering the circumstances.

In this case, the defendant showed evidence that the service wasn’t timely, which required the plaintiff to explain how he was diligent. The plaintiff simply explained that he’d requested service by certified mail when he filed and expected the clerk to issue service, and once he got the notice of intent to dismiss, he was diligent about making sure service happened.

The appellate court didn’t think this was good enough and explained he should have been diligent from the moment of filing suit. The plaintiff explained the steps he took to get service after receiving notice of the intent to dismiss, but he didn’t give a reasonable explanation for why he delayed seven months to make sure Dollar Tree was served. The clerk’s error in not issuing the service didn’t support the notion that the plaintiff was diligent.

It was the plaintiff’s job to make sure that the defendant was served with the citation, and the plaintiff wasn’t entitled to ignore this duty for any long period. In this case, the plaintiff hadn’t even inquired with the clerk about why service hadn’t been effected, taking no action for a seven-month period after filing his complaint. The summary judgment was affirmed.

If you have been hurt on someone else’s property, the experienced San Antonio premises liability attorneys at Carabin & Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.

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