Fatai Oyejobi v. Dollar Tree Stores, Inc. ( 2017 )

Affirmed and Memorandum Opinion filed January 5, 2017.
In the
Fourteenth Court of Appeals
NO. 14-15-00969-CV
FATAI OYEJOBI, Appellant
V.
DOLLAR TREE STORES, INC., Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2014-32334
MEMORANDUM OPINION
In one issue, Fatai Oyejobi appeals from the trial court’s grant of summary
judgment in favor of Dollar Tree Stores, Inc. Finding no error, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
According to Oyejobi, he slipped and fell in a Dollar Tree store on June 5,
2012. On June 5, 2014, he filed his original petition against Dollar Tree alleging
personal injury. Oyejobi requested citation and service. On January 21, 2015, the
trial court issued notice of its intent to dismiss for want of prosecution. The
citation issued on February 5, 2015, and Dollar Tree was served on February 10,
2015. Dollar Tree timely filed its answer, asserting limitations as an affirmative
defense.
Dollar Tree filed a motion for traditional summary judgment on limitations.
Dollar Tree argued it met its initial burden to show that service occurred after the
limitations period had expired. In addition, Dollar Tree argued that as a matter of
law Oyejobi failed to exercise diligence in achieving service. To its motion Dollar
Tree attached: Oyejobi’s original petition, the district clerk’s record of activity, the
notice of intent to dismiss, Oyejobi’s discovery responses, the citation and the
district clerk’s record of citation activity, the return receipt green card, and Dollar
Tree’s original answer.
Oyejobi responded that his actions in connection with seeking service raised
a fact issue regarding diligence. To his response Oyejobi attached: his request for
service and an affidavit from his attorney.
The trial court granted Dollar Tree’s traditional motion for summary
judgment. Oyejobi filed a motion for reconsideration. The trial court denied
Oyejobi’s motion, and Oyejobi timely appealed.
II. ANALYSIS
We apply de novo review to the grant of a traditional motion for summary
judgment. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
Courts properly render summary judgment if the motion and evidence show there
is no genuine issue of material fact and the moving party is entitled to judgment as
a matter of law. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690
S.W.2d 546, 548 (Tex. 1985).
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A suit for personal injuries must be brought within two years from the time
the cause of action accrues. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a)
(West 2002 & Supp. 2016). To comply with the statute of limitations, a plaintiff
must file suit within the limitations period and use due diligence in the issuance
and service of citation. See Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007) (per
curiam). If service is diligently effected after limitations have expired, the date of
service will relate back to the filing date. Id. (citing Gant v. DeLeon, 786 S.W.2d
259, 260 (Tex. 1990)). “[I]t is the plaintiff’s burden to present evidence regarding
the efforts that were made to serve the defendant, and to explain every lapse in
effort or period of delay.” Proulx, 235 S.W.3d at 216.
Generally, diligence in effecting service is a fact question. Id. However,
summary judgment is proper when “the plaintiff’s explanation of its service efforts
demonstrate[s] a lack of due diligence as a matter of law, as when one or more
lapses between service efforts are unexplained or patently unreasonable.” Id.
(citing Gant, 786 S.W.2d at 260; Brown v. Shores, 77 S.W.3d 884, 887 (Tex.
App.—Houston [14th Dist.] 2002, no pet.); Tarrant Cty. v. Vandigriff, 71 S.W.3d
921, 925–26 (Tex. App.—Fort Worth 2002, pet. denied)). “[T]he relevant inquiry
is whether the plaintiff acted as an ordinarily prudent person would have acted
under the same or similar circumstances and was diligent up until the time the
defendant was served.” Id. In determining diligence, we examine “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.
Because Dollar Tree pleaded limitations and presented evidence that service
was not timely, the burden shifted to Oyejobi to explain his diligence. See Ashley
v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009) (“When a defendant has
affirmatively pleaded the defense of limitations, and shown that service was not
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timely, the burden shifts to the plaintiff to prove diligence.”). Oyejobi proffered
this explanation: he properly requested service by certified mail at the time of
filing, reasonably expected the clerk to issue service, and after receiving the notice
of intent to dismiss was diligent in effectuating service as soon as possible.
However, “the measure of diligence begins from the time the suit is filed and
an explanation is needed for every period of delay.” Sharp v. Kroger Tex. L.P.,
500 S.W.3d 117, 119 (Tex. App.—Houston [14th Dist.] July 21, 2016, no pet.).
Even though Oyejobi details the steps he took to procure service on Dollar Tree
after he received the notice of intent to dismiss and discovered the lack of service
on Dollar Tree, he fails to provide a reasonable explanation for the over-seven-
month delay in serving Dollar Tree that occurred prior to when the trial court
issued its notice of intent to dismiss. See id. at 121 (due diligence negated as
matter of law where plaintiff “le[ft] unexplained her five-month delay in requesting
citation and effecting service”).
The fact that the clerk made a mistake in not issuing the requested service
does not support Oyejobi’s diligence. It is ultimately the plaintiff’s responsibility
to ensure that citation is served on the defendant, and the plaintiff may not “wholly
ignore” this duty for a lengthy period. See Tex. R. Civ. P. 99(a); Boyattia v.
Hinojosa, 18 S.W.3d 729, 734 (Tex. App.—Dallas 2000, pet. denied) (affirming
summary judgment where plaintiff took no action during three-month period
citation was with clerk); see also Stoney v. Gurmatakis, No. 01-09-00733-CV,
2010 WL 1840247, at *4 (Tex. App.—Houston [1st Dist.] May 6, 2010, no pet.)
(mem. op.) (two-month delay); Butler v. Ross, 836 S.W.2d 833, 836 (Tex. App.—
Houston [1st Dist.] 1992, no writ) (five-month delay). Oyejobi made no inquiry
with the clerk and took no action whatsoever for seven months—from the time he
filed his petition until he discovered that Dollar Tree had not been served.
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We conclude that the evidence presented to the trial court established as a
matter of law that Oyejobi failed to use diligence in procuring the citation and
effecting service on Dollar Tree. Therefore, the trial court did not err in granting
summary judgment in favor of Dollar Tree.
We overrule Oyejobi’s sole issue.
III. CONCLUSION
Accordingly, we affirm the trial court’s judgment.
/s/ Marc W. Brown
Justice
Panel consists of Justices Busby, Donovan, and Brown.
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