Texas Car Crash Victims’ Suit Against Negligent Driver Dismissed Due to Failure to Exercise Due Diligence in Service of Process

The importance of retaining an attorney as soon as possible after being involved in an east Texas car or truck accident cannot be overstated. There are many deadlines that must be complied with, or else the injured party may forfeit his or her right to pursue fair and just compensation from the person whose negligence caused the collision.

Unfortunately, far too many people wait until the last minute to talk to a lawyer about their situation. When this happens, the chances of having a case dismissed due to an issue of timeliness greatly increases.

Part of the reason for this is that there is not just a single deadline that must be complied with. Depending upon the particulars of a given case, there may be multiple deadlines and filing requirements. Missing even one of these important deadlines can be fatal to an otherwise valuable claim for money damages.

Facts of the Case

In a recent case, the plaintiffs were two men who were injured in a motor vehicle accident that allegedly happened when the defendant driver ran a red light. Although the accident happened on October 16, 2013, the plaintiffs did not file their negligence lawsuit against the defendant until almost two years later (on October 15, 2015). While the plaintiff’s suit was filed within the two-year limitations period for personal injury and property damages cases, the defendant was not served with a copy of the complaint until April 27, 2017. (Meanwhile, the plaintiffs’ case was dismissed for want of prosecution, although it was eventually reinstated.)

After finally being served, the defendant filed a motion to dismiss the plaintiffs’ complaint, asserting that the plaintiffs had failed to comply with the 2-year statute of limitations because of the delay in serving her. The County Court at Law No. 2 for Tarrant County, Texas, agreed with the defendant that the plaintiffs had failed to exercise due diligence in perfecting service of process upon the defendant. Accordingly, the court granted summary judgment to the defendant, thereby dismissing the plaintiffs’ case.

The Appellate Court’s Decision

The Court of Appeals for the Second Appellate District of Texas at Fort Worth affirmed the lower court’s ruling, thereby rejected the plaintiffs’ argument that their summary judgment evidence raised a triable issue and/or that the defendant had not carried her burden of proof with regard to her motion. The court of appeals began its analysis by noting that, in order to “bring suit,” as that term is mean under Texas law, a plaintiff must file his or her complaint within the limitations period and exercise due diligence in serving the defendant with a copy of his or her pleadings. Ideally, the plaintiff would be served with process within the statute of limitations period, but this is not technically required. So long as the plaintiff’s complaint is filed by the end of the limitations period and he or she uses due diligence in serving the defendant, the service of process date “relates back” to the date that the plaintiff filed his or her pleading.

In a situation in which the defendant seeks dismissal of a plaintiff’s complaint on the grounds that he or she was not timely served with a copy of the plaintiff’s complaint, the defendant must first show that he or she was not served until after the expiration of the limitations period. The burden of proof then shifts to the plaintiff to explain the delay in service. Here, the trial court took judicial notice of the fact that the defendant was not served until some 18 months after the plaintiffs filed their complaint (which was filed only one day before the statute of limitations ran). In response, the plaintiffs offered into evidence certain emails from Texas’s electronic filing system, thereby attempting to explain their delay in serving the defendant.

The court found that, at best, the evidence proffered by the plaintiffs showed that their attorney “might have attempted” to have a citation issued within a couple of weeks after their complaint was filed. After that filing was apparently rejected, the plaintiffs apparently waited nine months before requesting another citation. A second citation was requested between the time that the plaintiffs’ case had been dismissed for want of prosecution and the time that it was reinstated; accordingly, this citation was likewise rejected. Eight months later, another request for a citation was rejected. Finally, on the fourth attempt, the defendant was actually served with process. According to the court, even if it accepted the “problems with the electronic filing” excuse offered by the plaintiffs to explain some of the delay in service, the defendants had not adequately the multiple, months-long gaps in their attempts at service. Thus, the lower tribunal was correct in dismissing the plaintiffs’ lawsuit as untimely.

Get Help with an East Texas Car Accident Case

At Earl Drott Law in Tyler, Smith County, Texas, we have nearly 35 years’ experience in helping those who have been hurt in east Texas car accidents caused by others’ negligence seek justice. For a free case evaluation, call us at 903-531-9300. There’s no charge for the call, the appointment, or even our representation unless we recover a settlement or judgment for you.

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