Full Opinion (html_with_citations)

                                In The

                          Court of Appeals

               Ninth District of Texas at Beaumont

                          __________________

                         NO. 09-21-00040-CV
                          __________________

                 KENTLEY DEVAULT, Appellant

                                  V.

JOHN GIANNAKIS, NORTHWOOD UROLOGY OF TEXAS PLLC,
   AND MEMORIAL HERMANN HEALTH SYSTEM D/B/A
   MEMORAL HERMANN THE WOODLANDS HOSPITAL,
                    Appellees

__________________________________________________________________

            On Appeal from the 284th District Court
                  Montgomery County, Texas
                 Trial Cause No. 20-06-07441-CV
__________________________________________________________________

                    MEMORANDUM OPINION

     Kentley Devault sued John Giannakis, MD and Northwood Urology

of Texas PLLC for medical malpractice. 1 Dr. Giannakis and Northwood


     1In  addition to suing Dr. Giannakis and Northwood Urology,
Devault sued two other medical providers. The trial court dismissed
those two medical providers from the suit after sustaining their
objections to the medical report Devault filed because the report didn’t
                                   1
Urology jointly filed a traditional motion for summary judgment, which

the trial court granted, in which they argued Devault’s suit was barred

by the two-year statute of limitations. The trial court granted the motion

and Devault appealed. For the reasons explained below, we will affirm.

                               Background

     Devault sued Dr. Giannakis and Northwood Urology on health care

liability claims. 2 In Devault’s live pleading, his First Amended Petition,

Devault alleged that Dr. Giannakis failed to properly diagnose and

operate on Devault’s testicle after seeing and examining Devault in the

emergency room. According to the allegation in the petition, Dr.

Giannakis’s failure to properly diagnose and treat the condition in the

emergency room ultimately led to Devault “having an unnecessary

testicle amputation that more likely than not would not have been




comply with the requirements of Texas Civil Practice and Remedies Code
Chapter 74. See
Tex. Civ. Prac. & Rem. Code Ann. § 74.351
, §§ 74.401-
.403.
      2Id. § 74.001(13) (defining health care liability claim as “a cause of

action against a health care provider or physician for treatment, lack of
treatment, or other claimed departure from accepted standards of
medical care, or health care, or safety or professional or administrative
services directly related to health care, which proximately results in
injury to or death of a claimant, whether the claimant’s claim or cause of
action sounds in tort or in contract”).
                                     2
necessary had Defendants not breached the standard of care that was

owed to [Devault].” 3 According to the Amended Petition, Dr. Giannakis

saw Devault in the emergency room and failed to properly diagnose his

condition on July 29, 2018. The clerk’s record before us in the appeal

shows that Devault filed his Original Petition on June 24, 2020.

     The Defendants raised their statute of limitations defense in an

amended answer. After they amended their pleadings, Dr. Giannakis and

Northwood Urology filed a traditional motion for summary judgment. In

the motion, they argued the two-year statute of limitations in Texas Civil

Practice and Remedies Code section 74.251(a) barred Devault’s suit

because they were not served until November 19, 2020, which is more

than two years from the date Devault’s health care liability claim

involving his treatment in the emergency room against Dr. Giannakis

and Northwood Urology arose. 4 They further alleged that Devault failed


     3In  his petition, Devault alleged that when the acts and omissions
made the basis of his suit occurred, Dr. Giannakis was acting “within the
course and scope of [his] employment or agency as” an employee, servant,
or agent of “Northwood Urology of Texas, PLLC[.]”
      4In response to the defendants’ motion for summary judgment,

Devault never asserted that he sent Dr. Giannakis a notice of his health
care claim accompanied by a medical authorization form before filing
suit. See
Tex. Civ. Prac. & Rem. Code Ann. § 74.051
 (a), (c) (providing
that when a person or the person’s agent, who is asserting a health-care
                                     3
to exercise reasonable diligence to obtain service on the defendants

because Devault’s attorney was not qualified to serve them with the

citations in the suit because as Devault’s attorney, he is a person

“interested in the outcome of [the] suit,” disqualifying him from serving

as someone who could serve a person or entity with process in a civil suit.5

     The summary-judgment evidence shows that on July 23, 2020,

Devault’s attorney asked the district clerk’s office to issue citations for

service on Dr. Giannakis and Northwood Urology. The “Request for

Service” form, which Devault’s attorney sent to the district clerk’s office,

shows that Devault’s attorney requested the district clerk to mail the

citations tied to the suit to his office. On August 5, 2020, Devault’s




liability claim, gives the physician or health care provider written notice
of the health-care liability claim 60 days prior to suit with an
authorization to release the patient’s records relevant to the suit in the
form prescribed by the Legislature, the pre-suit notice tolls “the
applicable statute of limitations to and including a period of 75 days
following the giving of the notice”). There is also no evidence that he did
so in the clerk’s record before us in the appeal.
       5Tex. R. Civ. P. 103 (authorizing services by sheriffs, constables,

other persons authorized by law, any person authorized by written order
of the court who is not less than eighteen, any person certified under
order of the supreme court, service by registered mail an dictation by
publication by the clerk of the court where the case is pending, but
disallowing anyone “who is a party to or interested in the outcome of a
suit [to] serve any process in that suit[.]”
                                      4
attorney mailed the petition and citation to the address where Dr.

Giannakis and Northwood Urology maintain their offices by certified

mail, return receipt requested. 6 On November 19, 2020—more than two

years from the day Dr. Giannakis saw Devault in the emergency room—

and 120 days from the day that Devault’s attorney asked the district clerk

to issue the citations—Dr. Giannakis and Northwood Urology were

personally served by a process server with the citations of the suit. 7

     To support their motion for summary judgment, the defendants

attached the following exhibits to their motion:

        • Devault’s original petition, filed June 24, 2020;
        • The “Officer’s Return,” dated November 19, 2020, which is
          signed by the process server who swore he personally served
          the defendants with the citations and copy of the Plaintiff’s
          Original Petition;
        • The “Request for Service” form that Devault’s attorney mailed
          to the Montgomery County district clerk on July 23, 2020;

     6The citations that accompanied the attorney’s letter are not signed,

and the return receipts that accompanied the letter are not signed and
are not included in the summary-judgment evidence.
      7In   their motion for summary judgment, the defendants
acknowledged that based on the extension the Texas Supreme Court
created in an Emergency Covid-Extension order, the two-year statute of
limitations in Devault’s suit was extended until September 15, 2020. See
Supreme Court of Texas, Eighteenth Emergency Order Regarding the
COVID-19 State of Disaster, Misc. Docket No. 20-9080,
609 S.W.3d 122
(Tex. June 29, 2020) (extending the deadline to file or serve any civil case
that falls on a day between March 13, 2020, and August 1, 2020, until
September 15, 2020).
                                    5
        • Letters dated August 5, 2020, from Devault’s attorney
          enclosing a copy of the petition and citation (unsigned) to the
          address where Plaintiff’s Original Petition alleges that Dr.
          Giannakis and Northwood Urology office;
        • The declaration of Dr. Giannakis; and
        • The declaration of Chuck Baldwin, who stated he is the
          Practice Administrator for Northwood Urology.

     When Devault filed a response, he conceded the defendants were

not served with process within two years of the date Dr. Giannakis

treated him in the emergency room, but he argued the defendants were

still served within the two-year statute of limitations even though they

were not served until November 19, 2020, when considering the Texas

Supreme Court’s Emergency COVID-19 pandemic orders. 8 Additionally,

Devault claimed his attorney served Dr. Giannakis and Northwood

Urology within the time period allowed by the Supreme Court’s



     8Devault   relies on the Texas Supreme Court’s Eighteenth
Emergency Order, extending the deadline for serving civil cases filed
between March 13, 2020, and August 1, 2020, to September 15, 2020, and
the Texas Supreme Court’s Twenty-Sixth Emergency Order, which
modified or suspended any and all deadlines and procedures for a stated
period, which ended as of December 1, 2020. The Twenty-Sixth
Emergency Order went into effect on October 1, 2020. See Supreme Court
of Texas, Eighteenth Emergency Order Regarding the COVID-19 State
of Disaster, Misc. Docket No. 20-9080,
609 S.W.3d 122
 (Tex. June 29,
2020); Supreme Court of Texas, Twenty-Sixth Emergency Order
Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-9112,
609 S.W.3d 135
 (Tex. Sept. 18, 2020).
                                  6
emergency orders considering the effort he made to serve the defendants

with process by certified mail. He also argued that his attorney found it

difficult to find a process server who was willing to serve personal process

on individuals in the height of the COVID-19 pandemic, and that by

sending them the petitions by certified mail, he had exercised reasonable

diligence under the circumstances in attempting to have them served.

      Devault’s attorney supported his response with a “Self Sworn

Statement.” In it, Devault’s attorney swore that between July 27, 2020,

and November 19, 2020, he diligently attempted to serve all named

Defendants in the lawsuit by immediately requesting citations from the

district clerk’s office after filing the petition. Devault’s attorney goes on

to state that the days between “requesting citations and receiving the

citations, my office staff made several attempts to locate a process server

willing to serve Defendants.” In the Statement, Devault’s attorney swore

that his “office staff contacted a total of at least four different process

servers who stated they were unable to perform service for various

reasons due to location and COVID-19 precautions.” Unable to locate a

process server to personally serve the defendants with the citations and

petitions in the suit, Devault’s attorney attested that “a copy of Plaintiff’s


                                      7
Original Petition and a copy of the citation was sent via certified mail to

prevent further delay and the certified letter was confirmed to have been

received by Defendants.”

     Defendants filed a reply responding to Devault’s claim that his

attorney exercised reasonable diligence in attempting to have Dr.

Giannakis and Northwood Urology timely served with the citations in the

suit. First, the defendants argued that the “Self Sworn Statement”

Devault’s attorney signed omitted the information required to make it an

“unsworn declaration” that Devault could use as summary-judgment

evidence in place of a sworn declaration or affidavit, as permitted by

Texas Civil Practice and Remedies Code section 132.001. 9 The

Defendants also objected to the attorney’s sworn statement because “the

statement provides no evidence regarding the identity of [the attorney’s]

office staff members who allegedly attempted to locate a process server,

the dates the contact was attempted, or the identity of the process server

who refused.” Without this information, the defendants argued, Devault




     9Tex. Civ. Prac. & Rem. Code Ann. § 132. 001. We note, however,
that Devault’s attorney declared “under penalty of perjury” that the
statements he made in his declaration were true and correct, so the
statement the attorney filed is not unsworn.
                                    8
had failed to show how the employees in the attorney’s office had

exercised reasonable diligence in having the defendants served.

     When the trial court heard the defendant’s motion for summary

judgment, it signed an order sustaining the defendants’ objections to the

attorney’s “Self Sworn Statement,” attached to Devault’s response as

Exhibit F. In the same order, the trial court ruled it would not consider

Exhibit F in ruling on the defendants’ motion, and it struck Exhibit F.

     Shortly after striking the exhibit, the trial court found the

summary-judgment evidence conclusively showed that Devault, in

response to the defendants’ summary-judgment evidence, failed to meet

his burden to demonstrate that he exercised reasonable diligence through

November 19, 2020, in having the defendants served with the citations

and petitions to avoid the two-year statute of limitations expiring on

Devault’s health care liability claims. In its final judgment, the trial court

ordered that Devault “take nothing on his claims” against Dr. Giannakis

and Northwood Urology. Within thirty days of the date the trial court

signed the judgment, Devault filed his notice of appeal.




                                      9
                          Standard of Review

     Appellate courts review rulings granting summary judgments

under a de novo standard. 10

     “A party moving for summary judgment must conclusively prove all

elements of its cause of action or defense as a matter of law.”11 We

consider the evidence in the light most favorable to the nonmovant,

indulging every reasonable inference and resolving any doubts against

the movant. 12 If the movant’s motion and summary-judgment evidence

facially establish its right to judgment as a matter of law, the burden

shifts to the nonmovant to raise a genuine, material fact issue sufficient

to defeat the motion for summary judgment. 13 The evidence raises a

genuine issue of fact if reasonable and fair-minded jurors could differ in

their conclusions in light of all of the summary-judgment evidence. 14


     10Travelers    Ins. Co. v. Joachim,
315 S.W.3d 860, 862
 (Tex. 2010)
(citation omitted).
       11Holy Cross Church of God in Christ v. Wolf,
44 S.W.3d 562, 566

(Tex. 2001) (citing Tex. R. Civ. P. 166a(c); Rhone-Poulenc, Inc. v. Steel,
997 S.W.2d 217, 223
 (Tex. 1999); Walker v. Harris,
924 S.W.2d 375, 377
(Tex. 1996)).
       12City of Keller v. Wilson,
168 S.W.3d 802, 824
 (Tex. 2005).
       13M. D. Anderson Hosp. & Tumor Inst. v. Willrich,
28 S.W.3d 22, 23

(Tex. 2000).
       14Goodyear Tire & Rubber Co. v. Mayes,
236 S.W.3d 754, 755
 (Tex.

2007).
                                      10
                                  Analysis

      In one issue, Devault argues the summary-judgment evidence

reveals “a genuine issue of material fact exist[s] as to whether [Devault]

exercised due diligence in effecting service [on Dr. Giannakis and

Northwood Urology].”

      Although subject to exceptions that do not apply to Giannakis’s

claims, health care liability claims must be commenced “within two years

from the occurrence of the breach or tort of from the date the medical or

health care treatment that is the subject or the hospitalization for which

the claim is made is completed[.]” 15 For a plaintiff to file a suit within a

limitations period prescribed by statute, the plaintiff must not only file

suit within the limitations period that applies but must also use diligence

in having the defendant served. 16 Thus, even when the plaintiff files suit

before limitations runs out, the filing of the suit does not keep the

limitations from running unless the plaintiff exercises due diligence in

causing the citation in the suit to be issued and served. 17 That said, if the

plaintiff exercises reasonable diligence in having citations issued and the


      15Tex.Civ. Prac. & Rem. Code Ann. § 74.251(a).
      16Gant v. DeLeon,
786 S.W.2d 259, 260
 (Tex. 1990).
      17Proulx v. Wells,
235 S.W.3d 213, 215
 (Tex. 2007).

                                   11
defendants served, and the suit is filed within the limitation period but

served after the statute of limitations has expired, the date a defendant

is served relates back to the date of filing. 18

      When the defendant affirmatively pleads a limitations defense and

shows that the plaintiff obtained service of the suit after limitations

expired, the burden shifts to the plaintiff to reasonably explain the

delay. 19 In discharging that burden, the plaintiff must present evidence

showing what was done to serve the defendant that is sufficient to

explain every lapse in effort and period of delay. 20 Even when the plaintiff

offers an explanation, however, the explanation “may demonstrate a lack

of due diligence as a matter of law, as when one or more lapses between

service efforts are unexplained or patently unreasonable.” 21 On the other

hand, if the plaintiff’s explanation raises a genuine issue of material fact

about whether the plaintiff exercised reasonable diligence in having the

defendant served, “the burden shifts back to the defendant to




      18Id.
      19Id.   at 216.
      20Id.
      21Id.

                                      12
conclusively show why, as a matter of law, the explanation is

insufficient.” 22

      In determining diligence, the question is whether the plaintiff acted

as an ordinarily prudent person under the same or similar circumstances

and was diligent until the defendant was served. 23 Generally, whether

the plaintiff diligently effected service on the defendant is an issue of fact

that must be resolved by a factfinder in the trial, which the factfinder

determines by examining the time it took to secure citation, service, or

both, and the type of effort or lack of effort the plaintiff expended in

procuring service. 24

      Devault’s First Amended Petition alleges Dr. Giannakis saw him

once in the emergency room on July 29, 2018, which means July 28, 2020,

was the last day he could file suit on his claims against Dr. Giannakis

and Northwood Urology before the two-year limitations period on his

health care liability claims expired. 25 But because the Supreme Court’s

COVID-19 Emergency Orders extended the deadlines for filing claims




      22Id.
      23Id.
      24Id.
      25Tex.   Civ. Prac. & Rem. Code Ann. § 74.251(a).
                                    13
during July 2020, the limitations period that applied to both the filing of

Devault’s suit and to serving it on Dr. Giannakis and Northwood Urology

were extended under the Eighteenth Emergency Order until September

15, 2020. 26

      The suit was filed before the two-year statute ran, so the question

here involves whether the suit was timely served, not whether it was

timely filed. Both in the trial court and in the appeal, there is no dispute

that the defendants were not formally served under the Texas Rules of

Civil Procedure by a process server with citations of the suit until

November 19, 2020, just over two months after September 15, 2020 when

the extended limitations and service periods created by the Texas

Supreme Court’s Eighteenth Emergency Order had expired. 27 Therefore,

the burden shifted to Devault to explain how he exercised reasonable

diligence from September 16 until November 19, 2020 in attempting to




      26SeeSupreme Court of Texas, Eighteenth Emergency Order
Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-9080,
609 S.W.3d 122
 (Tex. June 29, 2020) (extending the deadline to file or
serve any civil case that falls on a day between March 13, 2020 and
August 1, 2020 until September 15, 2020).
     27Id.

                                   14
formally serve the defendants with the citations issued by the district

clerk. 28

      We conclude that the explanation Devault offered demonstrates a

lack of due diligence as a matter of law. First, we note that on appeal,

Devault has not challenged the trial court’s ruling striking the “Self

Sworn Statement” Devault’s attorney filed, nor has he challenged the

trial court’s failure to consider the “Self Sworn Declaration” to explain

why there were delays. Even had the trial court considered the “Self

Sworn Statement,” however, it would not alter our conclusion that the

trial court reached the correct result on the defendants’ motion because

the “Self Sworn Statement” the attorney signed doesn’t create a fact issue

on whether Devault’s attorney exercised reasonable diligence in having

the citations served.

      To have the citations served, Devault’s attorney could have asked

the district clerk to serve them on the defendants by certified mail, return

receipt requested if he was having trouble finding a process server willing

to personally serve the defendants with the citations issued by the




      28See   Proulx,
235 S.W.3d at 216
.
                                     15
district clerk. 29 Or, Devault (through his attorney) could have asked the

trial court to order a person not less than eighteen not interested in the

outcome of the case to personally serve the defendants with the citations

accompanied by copies of his petition, which is another procedure to serve

a defendant with process, which is authorized by Rule 103. 30 We conclude

Devault’s evidence does not raise a fact issue to show he exercised

reasonable diligence between September 15 and December 19, 2020 in

having Dr. Giannakis and Northwood Urology served with process in his

suit. For that reason, the trial court did not err in concluding the evidence

conclusively established the date of service, November 19, 2020, did not

relate back to the date of filing to avoid the defendants’ statute of

limitations defense.

     On appeal, Devault argues that the letters his attorney sent to Dr.

Giannakis and to Northwood Urology enclosing the petitions show that

Devault exercised reasonable diligence in having the defendants served

with process in the suit. We disagree.




     29See   Tex. R. Civ. P. 103.
     30Id.

                                     16
     Texas Rule of Civil Procedure 103 describes who may serve

citations issued by a court. The rule clearly states that “[n]o person who

is a party to or interested in the outcome of the suit may serve citation in

that suit[.]” 31 Devault’s attorney could not serve the citations because he

is interested in the outcome of the suit. 32 Even more, the summary-

judgment evidence doesn’t include green cards or the certified letter

Devault’s attorney sent to the defendants’ office on August 15, 2020, so

nothing shows the certified letter was served on Dr. Giannakis or the

agent of Northwood Urology who was authorized to be served with

process in a suit. The citations accompanying the attorney’s letter

addressed to Dr. Giannakis’s and Northwood Urology’s office, which is

included in the summary-judgment evidence, are also unsigned.

                                Conclusion

     Nearly four months elapsed between the date Devault’s attorney

first asked the district clerk to issue citations and when the defendants

were formally served with Devault’s suit in November 2020. Devault’s


     31Id.
     32See Rogers v. Stover, No. 06-05-00065-CV,
2006 WL 859305
, at *2
(Tex. App.—Texarkana Apr. 5, 2006, no pet.) (mem. op.) (“An attorney for
one party to the lawsuit is a person with an interest in the outcome of the
case and is not authorized to serve process.”).
                                    17
summary-judgment evidence neither explains why his attorney didn’t

ask the district clerk to serve the citations by certified mail under Rule

103, nor does it explain why he didn’t ask the trial court to authorize a

person under the age of eighteen to serve the citations either in person

or by certified mail. Devault may not use the pandemic as an excuse when

the record shows that he didn’t exercise reasonable diligence in pursing

service under rule 103 to obtain service on the defendants under the

extended statutory deadline allowed under the Texas Supreme Court’s

Eighteenth Emergency COVID-19 Order. 33

     We overrule Devault’s only issue because Devault didn’t meet his

burden when he responded to the defendants’ motion for summary

judgment to demonstrate he exercised reasonable diligence in serving the

defendants with his suit.

     For the reasons explained above, the judgment of the trial court is

     AFFIRMED.                               _________________________
                                                  HOLLIS HORTON
                                                       Justice
Submitted on October 28, 2021
Opinion Delivered December 22, 2022
Before Kreger, Horton and Johnson, JJ.

     33See Supreme Court of Texas, Eighteenth Emergency Order
Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-9080,
609 S.W.3d 122
 (Tex. June 29, 2020); Proulx,
235 S.W.3d at 216
.
                                 18