Allen v. Smith Cnty. Appraisal Dist., No. 12-15-00029-CV, 2015 Tex. App. LEXIS 9359 (Tex. App.—Tyler Sept. 2, 2015, no pet.)
Tonya Allen filed a suit against the Smith County Appraisal District (“Smith CAD”) challenging the Smith County Appraisal Review Board’s adverse valuation determination within the 60 day statute of limitations for filing her appeal. However, Allen did not request service or pay the fee for service until five months after the petition was filed and three and a half months after the 60 day statute of limitations had passed. Smith CAD filed a motion for summary judgment asserting that Allen’s suit was barred by the statute of limitations. The trial court granted Smith CAD’s motion for summary judgment, and Allen appealed on the basis that there was a fact issue on whether she exercised due diligence in securing service.
The court of appeals upheld the trial court’s judgment. Because Smith CAD raised the affirmative defense of statute of limitations, Allen had the burden to introduce evidence regarding her diligent efforts to serve the defendant and to explain any delay. The court of appeals acknowledged that, where a plaintiff diligently works to secure service after a petition is filed and the statute of limitations has passed, the date of service will date relate back to the date the petition was filed. The factual question for the trial court was whether, considering the length of the delays and Allen’s efforts in obtaining service, Allen acted diligently and as an ordinarily prudent person. After reviewing the evidence submitted by Allen, the court of appeals found that Allen’s counsel’s diligence review to ensure service had been achieved was completed sixty days after the statute of limitations passed, a delay that was not explained by counsel. Further, counsel did not explain why Allen did not request service or pay a fee for service at the time the petition was filed. The court of appeals concluded that the explanations provided did not show diligence or raise a fact issue as to diligence.