Williams v. Houston-Citizens Bank & Trust Co., 531 S.W.2d 434 (Tex. App. 1975). · Go Syfert
Williams v. Houston-Citizens Bank & Trust Co., 531 S.W.2d 434 (Tex. App. 1975). Cases Citing This Book View Copy Cite
39 citation events (9 in the last 25 years) across 4 distinct courts.
Treatment trajectory · 1977 → 2026 · click a year to view as-of
1977 2001 2026
Cited for
At page 436 Burden on plaintiff to explain service delay10 citing casesTex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.5 citing courts put it this way · 9 listed here
  • Int'l Fid. Ins. Co. v. State, No. 03-09-00539-CR, 2010 WL 4366910 (Tex. App.—Austin Nov. 3, 2010).unpublished
    App.--San Antonio 1976, writ ref'd n.r.e.) (upholding summary judgment finding lack of diligence as matter of law when appellant "did not plead or offer any excuse for the delay of almost six months in serving [appellee]"); Williams v. Hou…
  • Jerry Wilson A/K/A Steve Parker v. State of Texas, No. 03-10-00500-CR (Tex. App.—Austin Nov. 3, 2010).unpublished
    App.—San Antonio 1976, writ ref’d n.r.e.) (upholding summary judgment finding lack of diligence as matter of law when appellant “did not plead or offer any excuse for the delay of almost six months in serving [appellee]”); Williams v. Hous…
  • State Off. of Risk Mgmt. v. Eva Jurode, No. 01-03-01177-CV (Tex. App.—Houston [1st Dist.] Jan. 13, 2005).published
    App.—San Antonio 1976, writ ref’d n.r.e.) (six months between filing and service); Williams v. Houston-Citizens Bank & Trust Co. , 531 S.W.2d 434, 436 (Tex. Civ.
  • Dan Thomas v. Texas Dep't of Crim. Just. - Institutional Div., No. 03-96-00196-CV (Tex. App.—Austin Oct. 2, 1996).unpublished
    App.--Waco 1939, writ ref'd) (almost four months between filing and issuance of citation and another month between issuance and service); Liles v. Phillips , 677 S.W.2d 802, 809 (Tex. App.--Fort Worth 1984, writ ref'd n.r.e.) (two years an…
  • Butler v. Ross, 836 S.W.2d 833 (Tex. App.—Houston [1st Dist.] 1992).published
    (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.)
  • Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826 (Tex. 1991).published 2 cites
    (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref d n.r.e.)
  • De Leon v. Gant, 773 S.W.2d 396 (Tex. App.—San Antonio 1989).published
    (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.)
  • Liles v. Phillips, 677 S.W.2d 802 (Tex. App.—Fort Worth 1984).published 2 cites
    (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref d n.r.e.)
  • Ellis v. Great Sw. Corp., 646 F.2d 1099 (5th Cir. 1981).published
    (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n. r. e.)
At page 435 Determining lack of due diligence in litigation delay7 citing casesTex.Civ.App.-Houston [14th Dist.] 1975, writ ref'd n.r.e5 citing courts put it this way
  • Auten v. DJ Clark, Inc., 209 S.W.3d 695 (Tex. App.—Houston [14th Dist.] 2006).published 2 cites
    (Tex.Civ.App.-Houston [14th Dist.] 1975, writ ref'd n.r.e)
  • Denis Proulx v. Michael A. Wells, No. 02-05-00044-CV (Tex. App.—Fort Worth Feb. 9, 2006).published
    App.—San Antonio 1976, writ ref'd n.r.e.) (unexplained six-month delay between filing suit and obtaining service was a lack of due diligence); Williams v. Houston-Citizens Bank & Trust Co. , 531 S.W.2d 434, 435-36 (Tex. Civ.
  • Proulx v. Wells, 186 S.W.3d 630 (Tex. App.—Fort Worth 2006).published 2 cites
    Compare Gant v. De-Leon, 786 S.W.2d 259, 260 (Tex.1990) (holding that plaintiffs' unexplained delay of three periods totaling thirty-eight months in obtaining service on defendant was lack of due diligence); Webster v. Thomas, 5 S.W.3d 287…
  • Bado Equip. Co., Inc. v. Bethlehem Steel Corp., 814 S.W.2d 464 (Tex. App. 1991).published
    (Tex.Civ.App.—Houston [14th Dist.] 1976, writ ref’d n.r.e.)
  • Nelson v. Schanzer, 788 S.W.2d 81 (Tex. App. 1990).published
    (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.)
  • Reynolds v. Alcorn, 601 S.W.2d 785 (Tex. Civ. App.—Amarillo 1980).published
    (Tex.Civ.App. — Houston [14th Dist.] 1975, writ ref’d n. r. e.)
  • Roberts v. Gen. Dynamics, Convair Corp., 425 F. Supp. 688 (S.D. Tex. 1977).published
    (Tex.Civ.App. — Houston [14th Dist.] 1976, writ ref’d n. r. e.)
Retrieving the full opinion text from the archive…
Carl E. WILLIAMS, Appellant,
v.
HOUSTON-CITIZENS BANK AND TRUST COMPANY, Appellee
1277.
Court of Appeals of Texas.
Dec 17, 1975.
Published opinion
531 S.W.2d 434
1975 Tex. App. LEXIS 3364
Thomas G. Bousquet, Mark A. Salvato, Bousquet & McPherson, Houston, for appellant., Jack E. Urquhart, Fulbright & Jaworski, Houston, for appellee.
Tunks.
Cited by 37 opinions  |  Published
TUNKS, Chief Justice.

This is a suit on a promissory note. Appellant Carl E. Williams pleaded the four-year statute of limitations. The only issue presented to the jury was whether appellee Houston-Citizens Bank had exercised due diligence to procure issuance and service of citation on appellant. The jury found due diligence had been exercised, and judgment was rendered for appellee.

The note was executed by appellant on August 29, 1967, with the maturity date of August 12, 1969. Appellant defaulted, and appellee accelerated the maturity date and demanded full payment on August 12,1968. Appellee filed suit on July 20,1972 to recover the remaining indebtedness, and citation was issued on August 4, 1972, eight days before expiration of the statute of limitations. The deputy sheriff testified that he was unable to serve the defendant. The citation expired unserved on November 2, 1972. On June 22,1973, over seven months after the expiration of the first citation, citation was again issued and returned unexecuted on September 26, 1973. The deputy testified that when he attempted to serve the second citation, he learned from a neighbor that appellant had moved. His notation “moved” appears on the sheriff’s return of this second citation.

On September 25, 1973, a third citation was issued. With the permission of the court, this citation was served under Tex.R. Civ.P. 106 by attaching it to the door of appellant’s former residence. This occurred on September 28, 1973, thirteen and one-half months after the expiration of the statute of limitations. The defendant timely answered pursuant to that service.

The established rule is that to effectively interrupt the statute of limitations a plaintiff must continuously exercise due diligence in procuring the issuance and service of citation. Rigo Manufacturing Company v. Thomas, 458 S.W.2d 180, 182 (Tex.Sup.1970); Buie v. Couch, 126 S.W.2d 565 (Tex.Civ.App.—Waco 1939, writ ref’d).[*436] When a defendant affirmatively pleads the defense of limitations, and when failure to timely serve the defendant is shown, the burden is on the plaintiff to explain the delay. Wilcox v. St. Mary’s University, 497 S.W.2d 782, 788 (Tex.Civ.App.—San Antonio), appeal dismissed, 501 S.W.2d 875 (Tex.Sup.1973); Selman v. Lynch, 461 S.W.2d 452, 455 (Tex.Civ.App.—Tyler 1970, writ ref’d n. r. e.).

The record in this case shows that the statute of limitations expired ten months before the second citation was issued. The record also shows a delay of seven months and twenty days between the date the first citation was returned un-served and the date the second citation was issued. Such a delay in procuring service has been held to be negligence as a matter of law and inconsistent with due diligence. Rigo Manufacturing Company v. Thomas, 458 S.W.2d 180, 182 (Tex.Sup.1970), citing Buie v. Couch, 126 S.W.2d 565 (Tex.Civ. App.—Waco 1939, writ ref’d).

Appellee offered no explanation of the delay between issuance of the first and second citations. Appellant’s uncontrovert-ed testimony was that during that entire eight month period he resided at 1535 Potomac, which was the address listed on all three citations; that he both lived and worked at that address; and that he had not left Harris County during the time in question. The reasonableness of the plaintiff’s delay in procuring issuance and service of citation is usually a question of fact, but if no explanation is offered, its reasonableness can not be factually determined. Hutchings v. Republic Supply Company, 295 S.W.2d 449, 455 (Tex.Civ.App.—Galveston 1956, writ ref’d n. r. e.).

Appellee relies on the case of Beavers v. Darling, 491 S.W.2d 711 (Tex.Civ.App.—Waco 1973, no writ). That was a summary judgment case in which the court of civil appeals refused to find that as a matter of law the plaintiff had failed to exercise due diligence because the record showed some evidence of an explanation for the delay in service of citation. The appellee here has offered ho such explanation.

We hold that an unexplained delay of seven months and twenty days after the expiration of the statute of limitations is, as a matter of law, not due diligence in procuring issuance and service of citation. Ap-pellee’s suit was barred by the statute of limitations; therefore, the judgment of the trial court is reversed, and judgment is rendered that appellee take nothing.

Reversed and rendered.