Bilsing v. State Industries, Inc., Civ.A.No. 01-1175.

• Decision Date: 24 October 2001
• Docket Number: Civ.A.No. 01-1175.
• Parties: William A. BILSING and the Estate of Alma M. Bilsing, Plaintiffs, v. STATE INDUSTRIES, INC. and Emerson Electric Co., Defendants.
• Court: U.S. District Court — Southern District of Texas

173 F.Supp.2d 593

William A. BILSING and the Estate of Alma M. Bilsing, Plaintiffs, v. STATE INDUSTRIES, INC. and Emerson Electric Co., Defendants.

Civ.A.No. 01-1175.

United States District Court, S.D. Texas, Houston Division.

October 24, 2001.

COPYRIGHT MATERIAL OMITTED

John W. Odam, Goforth Lewis, Houston, TX, Michael C. Wilson, Butrus Khoshbin & Wilson, Dallas, TX, for Plaintiffs.

Douglas T. Gosda, Manning Gosda et al, Mary Elizabeth Kamin, Strasburger & Price LLP, Houston, TX, George W. Flynn, Attorney at Law, Thomas Klosowski, Attorney at Law, Minneapolis, MN, for Defendants.

MEMORANDUM AND ORDER

ATLAS, District Judge.

This is a products liability case. The Court denied the motions for summary judgment filed by Defendants Emerson Electric Co. ("Emerson") and State Industries, Inc. ("State") contending that the applicable statutes of limitation bar Plaintiffs' claims and that Plaintiffs' warranty claims are not legally viable. See Memorandum and Order, signed on August 22, 2001 and entered August 24, 2001 [Doc. # 23].¹ Emerson seeks reconsideration of these rulings, contending that denial of summary judgment on these grounds was error. Plaintiffs have responded in opposition. Having considered the parties' briefs, all matters of record and the applicable authorities, the Court concludes that Defendant Emerson's Motion for Reconsideration should be denied.

Statute of Limitations as to Strict Liability and Negligence Claims

Emerson's arguments as to the strict liability and negligence claims must be placed in context. Emerson complains about a delay of approximately two months in Plaintiffs' service of process in this case, 54 days of which were after the limitations deadline.² After a close review of the various cases cited by Emerson,³ the Court concludes that there is a genuine question of material fact as to whether the conduct by Plaintiffs' obtaining service of process did not lack diligence as a matter of law.

Background Facts. The facts giving rise to this action are not complex. Plaintiffs allege that on January 21, 1999,⁴ their residence caught fire because of a defective water heater designed, manufactured and sold by Defendant State, and/or a defective gas control device designed, manufactured and sold by Defendant Emerson.

Plaintiffs filed suit in the 85th Judicial District Court, Brazos County, Texas, on January 9, 2001, raising strict liability, negligence, and express and implied warranty claims.⁵ See Plaintiffs' Original Petition (Ex. 2-B to Notice of Removal). Citations were issued immediately.⁶ Defendant Emerson was served with a citation and a copy of the petition on March 20, 2001, 54 days after January 29, 2001, the day Emerson contends the two year limitations period⁷ expired on the strict liability and negligence claims.⁸

Defendants argued in their original motions, and Emerson now reasserts, that Plaintiffs' strict liability and negligence claims are time-barred, because Defendants were not served until after the limitations period had expired and Plaintiffs failed to use reasonable diligence in serving Defendants.

Legal Standards and Burdens of Proof. When a plaintiff files her petition within the limitations period but does not serve the defendants until after the period expires, the filing of a lawsuit alone does not interrupt the running of limitations. Taylor v. Thompson, 4 S.W.3d 63, 65, (Tex.App. — Houston (1 Dist.1999)) (citing Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex.1990)); Holstein v. Federal Debt Management, Inc., 902 S.W.2d 31, 35 (Tex.App. — Houston (1st Dist. 1995, no writ)). The plaintiff must exercise due diligence in the issuance and service of citation. Id. (citing Murray, 800 S.W.2d at 830; Holstein, 902 S.W.2d at 35).

It is the responsibility of the party requesting service to ensure that service is properly accomplished. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994); Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167, 169 (Tex.App. — Texarkana 1997); Aguilar v. Stone, 901 S.W.2d 955 (Tex.App. — Houston (1st Dist. 1995, no writ)). It is the attorney's duty to ascertain the status and completion of citation. Reynolds v. Alcorn, 601 S.W.2d 785 (Tex.Civ.App.—Amarillo 1980, no writ). The duty to use due diligence continues from the date the suit is filed until the date the defendant is served. Id. (citing Jimenez v. County of Val Verde, 993 S.W.2d 167, 169 (Tex.App.—San Antonio 1999, pet. denied)).

Generally, the exercise of due diligence is a question of fact. Id. (citing Hodge v. Smith, 856 S.W.2d 212, 215 (Tex. App. — Houston (1st Dist. 1993, writ denied))). However, the issue can be determined as a matter of law if no valid excuse exists for a plaintiff's failure to timely serve notice of process. Id. The two controlling factors that establish due diligence are (1) whether the plaintiff acted as an ordinary prudent person would act under the same circumstances and (2) whether the plaintiff acted diligently up until the time the defendant was served. Id.; accord, Zimmerman v. Massoni, 32 S.W.3d 254, 256 (Tex.App.—Austin, 2000). Texas courts have consistently held that unexplained delays of five and six months in procuring issuance and service of citation constitute a lack of due diligence as a matter of law. Keeton v. Carrasco, 53 S.W.3d 13, 18 (Tex.App. — San Antonio, 2001) (and cases cited therein).

A defendant may obtain summary judgment based on the lack of a plaintiff's diligence in serving the complaint, if no excuse is offered for the delay in procuring the service of citation, or if the lapse of time in the plaintiff's failure to act is such as to conclusively negate diligence. Ray v. O'Neal, 922 S.W.2d 314, 317 (Tex.App. — Fort Worth 1996, n.w.h.); De La Torre v. Our Lady of Guadalupe Center, 807 S.W.2d 889, 890 (Tex.App. — Corpus Christi 1991, no writ). If a defendant affirmatively pleads the defense of limitations and shows the failure to timely serve the defendant, "the burden shifts to the plaintiff to explain the delay." Murray, 800 S.W.2d at 830.⁹ If the plaintiff proffers summary judgment evidence that purports to explain the delay, then the defendant must demonstrate that the explanation of diligence is insufficient as a matter of law. See Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167, 169 (Tex. App. — Texarkana, 1997) (quoting Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex.1990)); Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex.1990); see also Weaver, 942 S.W.2d at 169; accord Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975).

The existence of diligence is a question of fact and should be found as a matter of law when no excuse is offered. Saenz v. Keller Industries of Texas, Inc., 951 F.2d 665, 667-68 (5th Cir.1992); Valdez v. Charles Orsinger Buick Co., 715 S.W.2d 126 (Tex.App. — Texarkana 1986, no writ).

It is the responsibility of the party requesting service, not the process server to see that service is properly accomplished. Id. (citing Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 590 (Tex. App.-Corpus Christi 1994, no writ)). Courts have held that "misplaced reliance on the process server does not constitute due diligence." Id.

"A party may ordinarily rely on the clerk to perform his duty within a reasonable time." Boyattia v. Hinojosa, 18 S.W.3d 729, 733-34 (Tex.App. — Dallas, 2000) (citing Wood v. Gulf, C. & S.F. Ry. Co., 15 Tex.Civ.App. 322, 326, 40 S.W. 24, 26 (1897, no writ)). "But when a party learns, or by the exercise of diligence should have learned, that the clerk has failed to fulfill his duty under rule 99, it is incumbent upon the party to ensure that the job is done." Id. (citing Buie v. Couch, 126 S.W.2d 565, 566 (Tex.Civ.App. — Waco 1939, writ ref'd)). A plaintiff may show that he exercised due diligence in effecting service when the delay in service was caused by court personnel. Holstein v. Federal Debt Mgmt., Inc., 902 S.W.2d 31, 36 (Tex.App. — Houston (1st Dist.1995, no writ)).

Private Process Server Emerson first contends that use of a private process server, when that procedure required Plaintiffs to obtain a Rule 103 order created, in and of itself, inexcusable delay and shows lack of diligence as a matter of law.¹⁰ Emerson contends that Plaintiffs could and should simply have utilized a sheriff or constable to serve Emerson's registered agent in Dallas, where Plaintiffs' true party in interest (Trinity Universal Insurance Company, the Bilsings' insurer) and its attorneys are located. However, Emerson has provided no evidence that the service would have been more prompt and problem-free than Plaintiffs reasonably expected or than actually occurred through the Rule 103 order process.

Emerson has not shown that Plaintiffs' choice of a private process server or the company they chose was dilatory as a matter of law. Defendant also has not shown that Plaintiff's understanding that a Rule 103 order was necessary was incorrect. Emerson has failed to show entitlement to summary judgment. Thus, on this argument the matter must await resolution through trial.

Other Allegedly Dilatory Conduct of Plaintiffs' Counsel.—Emerson also argues that even if the use of Rule 103 was proper, Plaintiffs nevertheless were dilatory in waiting almost two months for the order to be entered by the state court. Emerson has raised a fact issue but has not shown itself entitled to summary judgment as a matter of law. The reasonableness of Plaintiffs' counsel's conduct is a fact intensive inquiry and must be resolved at trial.

The exhibits attached to Plaintiffs' Response outline in detail the steps Plaintiffs took to effect service through the Rule 103 process. Plaintiffs show that they timely requested citations and contracted with a private process server they previously used. On January 11, 2001, Plaintiffs forwarded the requests for service to the private process server, which submitted a formal request on January 19, 2001, to the 85th Judicial District...