law-diligence-in-serving-defendant-for-SoL-purposes | statute of limitations defense | tolling of limitations |
statute of limitations defense |


If a party files its petition within the limitations period, service outside the limitations period
may still be valid if the plaintiff exercises diligence in procuring service on the defendant. Gant v.
DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (per curiam) (citing Zale Corp. v. Rosenbaum, 520
S.W.2d 889, 890 (Tex. 1975) (per curiam)). When a defendant has affirmatively pleaded the defense
of limitations, and shown that service was not timely, the burden shifts to the plaintiff to prove
diligence. Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007) (per curiam) (citing Murray v. San
Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990)). Diligence is determined by asking
“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. at 216.
Although a fact question, a plaintiff’s explanation may demonstrate a lack of diligence as a matter
of law, “when one or more lapses between service efforts are unexplained or patently unreasonable.”
Id. Thus, Hawkins has the 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.” Id.
Hawkins alleges the collision occurred on May 31, 2003, setting May 31, 2005, as the date
the two-year limitations period expired. TEX. CIV. PRAC. & REM. CODE § 16.003(a) (setting a twoyear
limitations period for personal injury actions).
Ashley v. Hawkins, No. 07-0572 (Tex. Jun. 26, 2009)(Green)(statute of limitations, no tolling when car wreck
defendant is out of state, but subject to being served there) (
due diligence in securing promt service of
citation on defendant)
GAIL ASHLEY v. DORIS D. HAWKINS; from Montgomery County; 9th district (
09-06-00359-CV, ___ SW3d
___, [
opinion in the Beaumont court of appeals] 06-07-07)   
The Court reverses the court of appeals' judgment and reinstates the trial court's judgment.
Green delivered the opinion of the Court. [pdf 10 pgs.]
Electronic Briefs in ASHLEY v. HAWKINS (Tex. 2009)
* * *
We agree with the trial court and hold that, as a matter of law, Hawkins’ responses do not
create a fact issue as to diligence, as this eight-month gap in time is left unexplained. See, e.g., Gant,
786 S.W.2d at 260. Hawkins stated that she spent approximately twenty hours searching for Ashley,
although she does not specify when this time was spent. Either these twenty hours were expended
early on, in which case, the diligence of the search later ceased; or, these hours were spread over
eight months, in which case the search was never diligent. Either way, Hawkins failed to meet her
As a comparison, in Proulx, we held that a plaintiff’s thirty-seven attempts at five different
addresses over the course of nine months exhibited continuing diligence to preclude summary
judgment. 235 S.W.3d at 217. After numerous unsuccessful attempts at effectuating service, the
plaintiff in Proulx sought substitute service [
Proulx v. Wells, No. 06-0258 (Tex. Aug 31, 2007)(per curiam)
(service of citation,
due diligence)]
* * *
In Gant, however, we held that a plaintiff was not diligent as a matter of law
where no explanation was offered for gaps in service for three different periods ranging from six to
twenty months. 786 S.W.2d at 260 (citing cases with seventeen, ten, six, seven, and three month
gaps). These cases clarify that, while the time period is important, it is not necessarily determinative
of the question of diligence. Rather, we must consider the overall effort expended over the gap in
service, and whether the search ceased to be reasonable, especially when other methods of service
were available. See Proulx, 235 S.W.3d at 217; Gant, 786 S.W.2d at 260.
Notably, the record does not indicate that Hawkins attempted any form of service other than
service by mail or delivery

Proulx v. Wells, No. 06-0258 (Tex. Aug 31, 2007)(per curiam)(service of citation, due diligence)