Texas Injury Lawyer Blog
Most people who have been injured in an east Texas auto accident are at least somewhat aware that there is a deadline for filing a negligence claim against the at-fault driver. Called the “statute of limitations,” this important deadline is non-negotiable; if you miss it, your case is going to be dismissed (unless it meets one of the very few, very narrow exceptions under Texas law).
Not only must the complaint be filed with the appropriate court clerk within the limitations period, but also the plaintiff has an obligation to serve a copy of the complaint on the defendant within a certain time frame. Failing to do this can result in the dismissal of an otherwise timely filed lawsuit.
Facts of the Case
In a recent case (No. 09-16-00277-CV; Court of Appeals for the Ninth District of Texas), the plaintiff and the defendant were involved in a car accident on January 3, 2014. On January 4, 2016, the plaintiff filed a negligence lawsuit against the defendant. (Notably, January 3, 2016, fell on a Sunday.) The plaintiff requested issuance of a citation on January 5, 2016. On March 16, 2016, the lawsuit was served on the defendant.
The defendant sought summary judgment on the ground that the plaintiff’s lawsuit was barred by the two-year statute of limitations contained in Tex. Civ. Prac. & Rem. Code § 16.003(a) and that the plaintiff had not exercised due diligence in serving the complaint. The defendant argued against summary judgment, relying on affidavits from two of her trial attorneys. The trial court struck portions of one attorney’s affidavit, struck the other attorney’s affidavit in its entirety, and dismissed the plaintiff’s lawsuit. She appealed.
Decision of the Court
Although the parties agreed on appeal that the plaintiff’s case was filed within the statute of limitations because Texas law provides for a Monday filing when the limitations period would otherwise run on a Sunday, the appeals court affirmed the dismissal of the plaintiff’s claim. While a plaintiff may serve a defendant outside the limitations period, the service is only valid if the plaintiff exercised due diligence in procuring service.
Here, some 71 days passed between the filing of the plaintiff’s complaint and service of process on the defendant. The court found that the affidavit testimony proffered by the plaintiff did not explain this delay in suitable fashion, although it did fault a private process server who allegedly failed to communicate with the plaintiff’s attorney on multiple occasions. Since there was no evidence that suggested there was any particular difficulty in locating the defendant or that the defendant was avoiding service, the plaintiff’s mere allegation that two unnamed process servers were unreliable was insufficient, as a matter of law, to meet her burden of proving due diligence.
Reliable Advice Concerning Your East Texas Car Accident
Talking to an attorney as soon as possible after an accident can make a big difference, not only in whether deadlines like the statute of limitations are met but also in the amount of evidence that is available to prove your case in court later. When a would-be litigant sits on his or her rights for weeks or months, it is not usual for physical evidence to disappear or a witness’ memory to fade (or to be influenced by the defendant’s insurance company). If you or a loved one has been hurt in a crash, call board-certified east Texas car accident lawyer Earl Drott at 903-531-9300 today. We handle claims in Tyler, Smith County, and the surrounding area.
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