Opinion issued March 1, 2012.

In The

Court of Appeals

For The

First District of Texas

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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

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.