Clinton Martin v. Evan Clark Stone and Elton Carl Stone D/B/A E.C. Stone Drilling Co. ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00346-CV
___________________________
CLINTON MARTIN, Appellant
V.
EVAN CLARK STONE AND ELTON CARL STONE D/B/A E.C. STONE
DRILLING CO., Appellees
On Appeal from the 17th District Court
Tarrant County, Texas
Trial Court No. 017-330547-21
Before Sudderth, C.J.; Birdwell and Womack, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
Appellant Clinton Martin nonsuited his case against Appellees Evan Clark
Stone and Elton Carl Stone, then several months later, he refiled his lawsuit on the
last day of the limitations period. After refiling, Martin’s counsel emailed the Stones’
prior law firm to see if it would accept service on the Stones’ behalf. He then waited
two months to follow up and then waited another month and a half to have citation
issued. The trial court granted the Stones’ motion for summary judgment on their
statute of limitations defense, and Martin challenges that ruling. Martin claims that he
raised a fact issue regarding (1) his due diligence in serving the Stones and
(2) alternatively, whether the Stones were equitably estopped from asserting
limitations based on their law firm’s communications. We will affirm.
I. Background
Martin originally sued the Stones in 2020, but he later nonsuited his case.
About five months after nonsuiting, Martin hired new counsel (Counsel) and filed suit
again on November 29, 2021, the last day of the limitations period. Assuming that
the Stones would be represented by the same law firm that had represented them in
the nonsuited case, Counsel emailed the Stones’ prior law firm to see if it would
accept service on the Stones’ behalf.1 An attorney at the prior law firm responded,
1
While the law firm that had represented the Stones in the nonsuited lawsuit
ultimately represented the Stones in the second lawsuit as well, this appeal focuses on
the period for service of citation of the second lawsuit, a period during which the
Stones had no attorney of record. Because the evidence indicated that the law firm
2
“I’ll check.” 2 But Counsel allowed two months to pass before he followed up on the
matter. On February 1, when Counsel contacted the prior law firm again, Counsel
was informed that the prior law firm was not authorized to accept service for the
Stones. 3 Upon learning this, Counsel did nothing with regard to effectuating service
on the Stones.
Instead, a few weeks later, Counsel moved to withdraw, and he set his motion
for a hearing in mid-March. According to Martin,4 at the hearing on Counsel’s
motion to withdraw, the trial court advised Counsel to request citation before
withdrawing. Counsel requested citation the next day, and about a week later—113
days after the limitations period ended—Elton Stone was served. Evan Stone was
never served, but he nonetheless filed an answer.
was not authorized to accept service for the Stones in the second lawsuit, and because
there was no evidence that the Stone’s prior law firm held itself out as counsel for the
Stones in the interim between the two suits, we refer to the law firm as the Stones’
prior law firm.
2
Counsel had emailed the Stones’ prior law firm “to talk with [it] about the
case” about two weeks before filing suit, but he received no response.
Specifically, a paralegal at the law firm stated that the firm “never received
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approval from our carrier to [accept service for the Stones].”
4
We were not provided with a transcript from the hearing on Counsel’s motion
to dismiss, and Counsel’s sworn declaration did not recite what occurred at the
hearing. But in Martin’s unsworn response to the Stones’ motion for summary
judgment, Martin indicated that, “[a]t the hearing, the Court advised [Counsel] to
request citation.”
3
The Stones pleaded the statute of limitations as an affirmative defense, and
they moved for traditional summary judgment on that basis. See Tex. R. Civ. P.
166a(c). Martin responded by arguing that Counsel’s actions were reasonable given
the prior litigation between the parties. He provided an affidavit from Counsel
explaining his service-related actions and stating that, “[b]ecause loss of evidence was
not a concern, [he] did not view service of process as urgent, and working informally
with opposing counsel seemed reasonable.” In the alternative, Martin asserted that
the Stones were equitably estopped from relying on their limitations defense because
“[the Stones’] attorneys made representations that induced [Martin] to delay service of
citation.”
The trial court granted summary judgment on the limitations issue.
II. Discussion
Martin challenges the trial court’s summary judgment on two grounds.5 He
asserts that he raised a fact issue regarding (1) his exercise of due diligence and
(2) alternatively, the Stones’ being equitably estopped from asserting limitations.
A. Standard of review
We review a summary judgment de novo, viewing the evidence in the light
most favorable to the nonmovant. Energen Res. Corp. v. Wallace, 642 S.W.3d 502, 509
5
In his brief, Martin lists a single issue presented: whether “the trial court
err[ed] in granting Appellees’ motion for summary judgment on limitations.” But the
substance of his argument raises two primary grounds for reversal.
4
(Tex. 2022); Draughon v. Johnson, 631 S.W.3d 81, 88 (Tex. 2021). The statute of
limitations is an affirmative defense, see Tex. R. Civ. P. 94, and a defendant is entitled
to summary judgment on this defense if the defendant conclusively proves (1) when
the cause of action accrued and (2) that the statute of limitations has run. Draughon,
631 S.W.3d at 88–89; see Tex. R. Civ. P. 166a(c). “If service is diligently effected after
limitations has expired, the date of service will relate back to the date of filing,” but if
the plaintiff fails to exercise due diligence in the issuance and service of citation, the
“timely filed suit will not interrupt the running of limitations.” Proulx v. Wells, 235
S.W.3d 213, 215 (Tex. 2007) (emphasis added); see Tate v. Beal, 119 S.W.3d 378, 380
(Tex. App.—Fort Worth 2003, pet. denied). Accordingly, “‘when failure to timely
serve the defendant has been shown,’ the defendant moving for summary judgment
has carried its burden to prove conclusively that limitations expired, and ‘the burden
shifts to the plaintiff . . . to explain the delay’” by “rais[ing] a material fact issue
concerning the diligence of service efforts.” Draughon, 631 S.W.3d at 94 (first quoting
Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990); and then quoting
Proulx, 235 S.W.3d at 216).
B. Due diligence
Martin argues that he raised a fact issue regarding his due diligence in serving
the Stones. He claims that the present case is essentially a continuation of his first,
5
nonsuited lawsuit and that because “the statute of limitations’ purpose was satisfied”
by the first lawsuit, Counsel was reasonable to view service as non-urgent.6
But the filing of a suit will not interrupt the running of limitations absent
diligent service. See Proulx, 235 S.W.3d at 215. Diligence of service, not
reasonableness of delay, is the legal standard to be applied. The question presented
here is whether Counsel exercised diligence in serving the Stones. See Weaver v. E-Z
Mart Stores, Inc., 942 S.W.2d 167, 169–70 (Tex. App.—Texarkana 1997, no writ)
(holding no evidence of due diligence when plaintiff delayed service based in part on
ignorance of the law).
A plaintiff has a “continuous” duty to exercise due diligence “from the date suit
is filed until [the date] service is obtained.” Perez v. Thomas, No. 02-18-00253-CV,
2019 WL 2432155, at *2 (Tex. App.—Fort Worth June 6, 2019, no pet.) (mem. op.)
(quoting Tate, 119 S.W.3d at 380); Erven v. Springer, No. 02-16-00350-CV, 2017 WL
6To the extent that Martin argues that his prior, nonsuited case mooted the
diligent-service requirement, we disagree. A party may not disregard the statute of
limitations—or its corresponding diligent-service requirement—based on the
existence of a prior, nonsuited case. Cf. CHCA Woman’s Hosp., L.P. v. Lidji, 403
S.W.3d 228, 233 (Tex. 2013) (“[A] voluntary nonsuit does not interrupt the running of
the statute of limitations.”); Bailey v. Gardner, 154 S.W.3d 917, 920 (Tex. App.—Dallas
2005, no pet.) (holding plaintiff’s suit barred by limitations when plaintiff nonsuited
case after limitations expired and attempted to refile a day later); Clary Corp. v. Smith,
949 S.W.2d 452, 459 (Tex. App.—Fort Worth 1997, pet. denied) (op. on remand)
(explaining that, “[w]hen a cause of action is dismissed and later refiled, limitations are
calculated to run . . . until the date that the claim is refiled” because the nonsuit “is
equivalent to a suit never having been filed”). Just as Martin was required to file his
second suit within the limitations period, he was required to diligently serve the
Stones with that second suit after limitations had run.
6
2471096, at *3 (Tex. App.—Fort Worth June 8, 2017, no pet.) (mem. op.) (same).
The plaintiff fulfills this duty if he “act[s] as an ordinarily prudent person would have
acted under the same or similar circumstances and [i]s diligent up until the time the
defendant [i]s served.” Proulx, 235 S.W.3d at 216; see Perez, 2019 WL 2432155, at *2.
When “one or more lapses between service efforts are unexplained or patently
unreasonable,” the plaintiff’s lack of due diligence can be determined as a matter of
law. Proulx, 235 S.W.3d at 216.
Here, Martin had two unexplained lapses that together spanned more than
three months.
The first lapse came after Counsel contacted the Stones’ prior law firm to see if
it would accept service. Counsel waited more than two months to follow up with the
firm,7 and Martin provided no reasonable explanation for this two-month gap. See
Tran v. Trejos, No. 14-17-00998-CV, 2019 WL 962605, at *3 (Tex. App.—Houston
[14th Dist.] Feb. 28, 2019, no pet.) (mem. op.) (collecting cases showing that “[c]ourts
consistently hold that due diligence is lacking as a matter of law when unexplained
lapses of time exist between filing suit, issuance of citation, and service”); cf. Erven,
7
Counsel attempted to shift the burden to the Stones’ prior law firm, stating
that “[o]pposing counsel did not contact [him] again” after telling him that it would
“check” and stating that he “d[id] not know why [the law firm’s lack of approval to
accept service] was not conveyed to [him] before” he followed up. But “[t]he duty to
exercise diligence is a continuous one,” Perez, 2019 WL 2432155, at *2 (quoting Tate,
119 S.W.3d at 380), and that duty is on the plaintiff—not the defendant or the
defendant’s prior law firm. It was Martin’s responsibility to follow up with the law
firm, and he provided no explanation for his two-month delay in doing so.
7
2017 WL 2471096, at *4 (holding nonmovant failed to raise fact issue on due diligence
when affidavits “wholly failed to explain [several] significant periods of inaction”
including a “nearly six-week gap between when the suit was filed . . . and when [the
plaintiff’s] law firm sent the citation to [the process server’s] company for service”).
Although Counsel later claimed that he had been “working informally with opposing
counsel” during this time, the limitations clock continued to run, and there is no
evidence that the Stones—through their prior law firm or otherwise—agreed to delay
service during this period. Cf. Sharp v. Kroger Tex. L.P., 500 S.W.3d 117, 121 (Tex.
App.—Houston [14th Dist.] 2016, no pet.) (noting that plaintiff “presented no
evidence that the parties agreed to delay service during settlement negotiations” and
holding that “[u]nilaterally waiting to serve a defendant during settlement negotiations
is not due diligence”).
Nor did Martin provide a reasonable explanation for his second lapse: the
month and a half between learning that the Stones’ prior law firm was not authorized
to accept service (on February 1, 2021) and requesting the issuance of citation (on
March 14, 2021). Counsel noted that he “was considering withdrawing” in early
February, that he filed his motion to withdraw in mid-February, and that he set the
motion for a hearing in mid-March. But the filing of a motion to withdraw neither
stops the limitations clock nor negates the necessity of exercising diligence in
procuring service. Cf. Tran, 2019 WL 962605, at *4 (holding plaintiff did not raise fact
issue on due diligence and stating that “it is not reasonably diligent to allow more than
8
three months to pass without affirmatively checking the status of a pending motion to
substitute counsel when the party knows that service has not been achieved”);
Samaniego v. Silguero, No. 03-14-00795-CV, 2016 WL 4091284, at *2 (Tex. App.—
Austin July 28, 2016, no pet.) (mem. op.) (holding plaintiff did not present fact issue
on due diligence and noting that “[a]lthough [plaintiff] attributes six months of th[e]
delay [in service] to her inability to find new counsel . . . , the applicable standard is
whether she exercised reasonable diligence in procuring service, not in procuring
counsel”).
Because Martin’s three-and-a-half-month “lapse[] between service efforts [is]
unexplained or patently unreasonable,” Proulx, 235 S.W.3d at 216, he failed to raise a
fact issue regarding his due diligence in serving the Stones.8 We overrule this
challenge to the trial court’s summary judgment.
C. Equitable estoppel
In the alternative, Martin argues that he raised a fact issue on whether the
Stones are equitably estopped from asserting limitations.
8
In the alternative, Martin argues that he raised a fact issue on due diligence
because Counsel made “miscalculations . . . concerning [the] inapplicability of the due
diligence requirement.” But again, ignorance of the law does not excuse a lack of due
diligence. Weaver, 942 S.W.2d at 169 (holding no evidence of due diligence when
plaintiff delayed service based in part on ignorance of the law). Plus, Martin did not
raise his “miscalculations” argument below. See Tex. R. App. P. 33.1(a); San Jacinto
River Auth. v. Duke, 783 S.W.2d 209, 210 (Tex. 1990); Conyer v. Reyes, No. 02-12-00440-
CV, 2014 WL 1704216, at *1 (Tex. App.—Fort Worth Apr. 30, 2014, no pet.) (mem.
op.).
9
“Equitable estoppel may bar a defense of limitations when a party, his agent, or
representative makes representations that induce a plaintiff to delay filing suit9 until
the limitations period has run.” Lewallen v. Cross, No. 03-14-0026-CV, 2014 WL
4365081, at *5 (Tex. App.—Austin Aug. 27, 2014, no pet.) (mem. op.); see Cook, 673
S.W.2d at 235. This doctrine requires evidence of five elements: “(1) a false
representation or concealment of material facts; (2) made with knowledge, actual or
constructive, of those facts; (3) with the intention that it should be acted on; (4) to a
party without knowledge or means of obtaining knowledge of the facts; (5) who
detrimentally relies on the representations.” Johnson & Higgins of Tex., Inc. v. Kenneco
Energy, Inc., 962 S.W.2d 507, 515–16 (Tex. 1998); Woods v. Soules, No. 02-17-00336-CV,
2018 WL 2248488, at *2 (Tex. App.—Fort Worth May 17, 2018, pet. denied) (mem.
op.). To avoid a limitations summary judgment based on the doctrine of equitable
9
Martin has not cited any case law that applies this doctrine when the
limitations issue stems from untimely service as opposed to untimely filing. Cf. Medina
v. Tate, 438 S.W.3d 583, 585, 591–92 (Tex. App.—Houston [1st Dist.] 2013, no pet.)
(discussing equitable estoppel when plaintiff filed suit the day after limitations
expired), abrogated on other grounds by Ferrer v. Almanza, No. 21-0513, 2023 WL 3134626,
at *4–5 (Tex. Apr. 28, 2023); Cook v. Smith, 673 S.W.2d 232, 234–36 (Tex. App.—
Dallas 1984, writ ref’d n.r.e.) (discussing equitable estoppel when plaintiff added
correct defendant after limitations expired); Gibson v. John D. Campbell & Co., 624
S.W.2d 728, 730, 732–33 (Tex. App.—Fort Worth 1981, no writ) (discussing equitable
estoppel when fact issue existed regarding whether suit was timely based on discovery
rule). For purposes of our analysis, we assume without deciding that the doctrine
could apply under these circumstances. Cf. Cook, 673 S.W.2d at 236 (rejecting
argument that equitable estoppel could not exist when plaintiff timely sued wrong
party and commenting that “estoppel should be flexible enough to embrace a
situation in which a party relies on a misrepresentation to the point where he cannot
effectively exercise their rights”).
10
estoppel, the plaintiff must raise a fact issue regarding each element. Woods, 2018 WL
2248488, at *2.
Here, Martin failed to do so. In the trial court, the entirety of Martin’s estoppel
argument was conclusory:
Additionally, under these circumstances, the doctrine of equitable
estoppel, which [Martin] has pleaded in his Supplemental Petition, bars
[the Stones] from raising the defense of limitations because [the Stones’]
attorneys made representations that induced [Martin] to delay service of
citation. See Medina v. Tate, 438 S.W.3d 583, 591 (Tex. App.—Houston
[1st Dist.] 2013, no pet.) (holding that the doctrine of estoppel can bar a
defendant from raising the defense of limitations when it, or its agent or
representative, made representations that induced the plaintiff to delay
filing suit until after limitations had run).
[Formatting altered.10] Martin did not identify what the false representations were,
what facts the Stones’ prior law firm had knowledge of that Martin did not, or how
Martin detrimentally relied on the representations.
Furthermore, when equitable estoppel is asserted to avoid a limitations defense,
“the failure to file suit must be ‘unmixed’ with any want of diligence on the plaintiff’s
part.” Id. (quoting Leonard v. Eskew, 731 S.W.2d 124, 129 (Tex. App.—Austin 1987,
writ ref’d n.r.e.) (op. on reh’g)). And as we have already held, Martin did not exercise
due diligence in serving the Stones.
Therefore, we overrule this challenge to the trial court’s summary judgment.
10
Martin’s citation to Medina appeared in a footnote, but we include it as an in-
text citation to reflect the totality of his argument.
11
III. Conclusion
Having overruled both of Martin’s challenges, we affirm the trial court’s
summary judgment. See Tex. R. App. P. 43.2(a).
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: May 18, 2023
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