Texas Court Says that Plaintiffs Who Failed to Provide Proof of Diligence in Late Service Effectively Missed the Statute of Limitations – Perez v. Efurd

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Generally speaking, under Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a), a person who is injured in an automobile accident has two years in which to file a claim against the party whose negligence allegedly caused the crash. A failure to comply with this statute of limitations will usually prove fatal to a would-be plaintiff’s case, regardless of the merits of the underlying claim.

In addition to the formal filing of the complaint with the clerk of court, the plaintiff must also serve a copy of the complaint on the defendant. A recent appellate court decision explored the issue of the timeliness of service of process in a particular case.

Facts of the Case

In the case of Perez v. Efurd, the plaintiffs were occupants of a vehicle that was involved in a motor vehicle accident in Texas in 2012. Although they were from Louisiana, they filed a lawsuit against the defendant (the motorist allegedly at fault in the collision) in a Texas court. The lawsuit was filed in compliance with the Texas statute of limitations, but a copy of the complaint was not served on the defendant until three months after the statute of limitations had expired.

The defendant filed a general denial answer, in which he also asserted the affirmative defense of the statute of limitations. He later filed a motion for summary judgment, asserting that the statute of limitations barred the plaintiffs’ lawsuit because the plaintiffs did not exercise due diligence in serving the complaint on the defendant. The trial court granted the defendant’s motion, and the plaintiffs appealed.

The Texas Court of Appeals’ Decision

Although the plaintiffs argued that the trial court erred in finding that they were not diligent in their efforts to serve the defendant, the court of appeals disagreed and affirmed the lower court’s ruling dismissing the plaintiffs’ claim on summary judgment. Although the defendant had the initial burden of proving that service of process occurred after the statute of limitations expired, the burden then shifted to the plaintiffs to explain the delay. If there was an unexplained delay in effecting service, this constituted a lack of due diligence.

Although the plaintiffs provided a “memorandum in opposition” listing the steps they allegedly took in order to serve the defendant, this document was not accompanied by an affidavit verifying the assertions therein. Since a party’s pleadings alone are not evidence, the plaintiffs failed to meet their burden of proving that there was a factual issue concerning due diligence in their service of process on the defendant.

If Your Family Has Been Hurt by an East Texas Car Wreck

Procedural matters are extremely important in personal injury lawsuits, including those arising from automobile accidents. If you or someone close to you has been hurt in a car crash, you only have a certain amount of time to take action against the person that caused the collision. To talk to an experienced, board-certified East Texas auto accident attorney, call the Law Offices of Earl Drott, P.C. at 903-531-9300. No legal fees are charged unless and until your case is successfully resolved, so do not put off this important step toward recovering compensation from the person or business that caused your injuries!

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