Boyattia v. Hinojosa
In Boyattia v. Hinojosa, 18 S.W.3d 729 (Tex. App.--Dallas 2000, pet. denied), the plaintiff filed her petition the day before the limitations period expired. Id. at 732.
Although citations were issued the same day, a citation to one of the defendants was not delivered to the constable for service until three months later. Id. The plaintiff failed to provide any explanation for this delay. Id. at 733.
Boyattia presented no evidence that she attempted to ensure delivery and she "wholly ignored her duty to have the citation served on the defendant during a lengthy period of time the citation remained with the clerk." Id.
As a result, Boyattia lacked diligence in procuring service, and the trial court correctly granted summary judgment. Id.
The court recognized that it is the duty of the clerk to issue citations and "deliver them as directed by the party requesting issuance" and that a plaintiff "may ordinarily rely on the clerk to perform his duty within a reasonable time." Id. at 733-34.
However, the court concluded that "when a party learns, or by the exercise of diligence should have learned, that the clerk has failed to fulfill his duty . . . , it is incumbent upon the party to ensure that the job is done." Id. at 734.
The court explained that a plaintiff "who wholly ignores her duty to have the citation served on the defendant during a lengthy period of time in which the citation remains with the clerk does not manifest a bona fide intention to have process served." Id.
The court held that the plaintiff's failure to take any action during the clerk's three-month delay in delivering the citation constituted a lack of diligence as a matter of law. Id.
The plaintiff requested issuance and service of the citation when she filed her lawsuit, but three months passed before the clerk actually delivered citation to the constable for service on defendant Dallas County. Id. at 732.
Service on the county was not effected for another month. Id.
The Court held that the three-month delay in the issuance of citation established the plaintiff's lack of diligence as a matter of law because there was no evidence the plaintiff took any steps during that time period to urge the clerk to issue citation. Id. at 734.
The Dallas court of appeals concluded the plaintiff failed to exercise due diligence because the clerk's three-month delay in delivering the citation was not a reasonable delay. 18 S.W.3d at 734.
The plaintiff, therefore, should have known the clerk was not fulfilling his duty to deliver the citation, and he should have ensured delivery. Id.