Tex. St. Univ. v. Tanner

689 S.W.3d 292

TEXAS STATE UNIVERSITY, Petitioner,

v.Hannah R. TANNER, Respondent

No. 22-0291

Supreme Court of Texas.

Argued November 29, 2023

OPINION DELIVERED; May 3, 2024

On Petition for Review from the Court of Appeals for the Third District of Texas

Kirk L. Pittard, Tammy Holt, Dallas, Lauren Sneed Harbour, Houston, Scott Braden, Robert Matthew Kyle, for Respondent.

S. Grant Dorfman, Bellaire, Brent Webster, Houston, Kara Lynne Kennedy, Matthew Jason Warner, Austin, Atty. Gen. W. Kenneth Paxton Jr., Judd E. Stone II, Shawn Cowles, Kathryn M. Cherry, for Petitioner.

Justice Young delivered the opinion of the Court.

[1, 2] A plaintiff timely brings suit by filing an original petition and serving the defendant with process before the statute of limitations expires. Hannah Tanner satisfied the first requirement with only a week to spare, but she did not serve Texas State University until several years after limitations had run. Under this Court’s precedent, however, late service of process can relate back to the date the petition was filed and thus be considered timely. This relation-back opportunity is available only if the plaintiff shows that she was diligent in attempting service from the time limitations expired until proper service was finally achieved.

[3] The University contends that Tanner cannot establish her diligence in service and that her lawsuit against it is therefore barred by limitations. Defendants typically raise limitations as an affirmative defense that, if proven, will lead to a take-nothing judgment on the merits. The University, however, claims that Tanner’s suit should be dismissed for lack of jurisdiction before any merits proceedings even commence. Dismissal is the proper disposition, it says, because the University is a governmental entity, and in Texas, plaintiffs bear a jurisdictional duty to discharge all "[s]tatutory prerequisites to a suit" against governmental entities. See Tex. Gov’t Code § 311.034. The University argues that service of process is such a prerequisite and that Tanner did not satisfy it.

[4] We must therefore decide whether a plea to the jurisdiction is a proper vehicle for the University to challenge the timeliness of Tanner’s service. We conclude that it is. As this Court has held, § 311.034 requires that a suit against a governmental entity be brought before the limitations period expires. Timely service of process is part of timely bringing suit. Tanner’s diligence in attempting service during the years following the expiration of limitations would conclusively establish that her lawsuit was timely, which would defeat the University’s limitations objection. Because jurisdiction depends on bringing suit within limitations, and because the statute of limitations requires timely service, the University properly filed a plea to the jurisdiction.

We decline, however, to determine whether the district court properly granted the plea. The court of appeals did not reach that question because it concluded that untimely service does not pose a jurisdictional issue that a plea to the jurisdiction can resolve. The University’s alternative motion for summary judgment relied on the same arguments about timeliness, but the court of appeals held, for procedur- al reasons, that the motion was not part of the appeal. Rather than resolve the timeliness of Tanner’s suit in the first instance, we reverse the court of appeals’ judgment and remand the case for that court to do so.

I

The relevant facts are largely undisputed, and we view them in the light most favorable to Tanner, the nonmovant. Tanner was injured on October 4, 2014, when she was thrown from a golf cart on the Texas State University campus. Dakota Scott, a friend of Tanner’s and a University employee, had been driving the golf cart within the scope of his employment. Invoking the Texas Tort Claims Act, Tanner sued the University, the Texas State University System, and Scott. She filed suit on September 29, 2016—less than a week before the two-year limitations period for personal-injury actions was set to expire. See Tex. Civ. Prac. & Rem. Code § 16.003(a).

Shortly thereafter—on October 4—Tanner served the System. Her petition expressly states that she did not request service on the University or Scott. Later that month, the System filed an answer and a plea to the jurisdiction. In late November, the System disclosed in its interrogatory responses to Tanner that it "is a separate entity and governmental unit from each of its component institutions" and that Scott had "never been employed by the Texas State University System." Nearly two years later, on September 18, 2018, Tanner served Scott—but she still did not serve the University. On December 3, 2018, the district court granted the System’s plea to the jurisdiction. Tanner did not appeal that ruling.

On May 20, 2020—five-and-a-half years after the injury and three-and-a-half years after limitations had run—Tanner finally served the University. The University answered and asserted the affirmative defense that Tanner’s claims were "barred by the two-year Statute of Limitations, pursuant to Section 16.003 of the Texas Civil Practice and Remedies Code." On October 2, 2020, the University filed a plea to the Jurisdiction and an alternative motion for summary judgment, alleging that Tanner failed to use diligence in effecting service on the University so long after limitations had expired. The University argued that Tanner’s untimely service meant that she had failed to satisfy a statutory prerequisite to suit, which deprived the trial court of subject-matter jurisdiction under § 311.034 of the Government Code. In the alternative, the University argued that Tanner’s "cause of action should be dismissed in its entirety as a matter of law by summary judgment as [the University’s] defense of limitations has been conclusively established."

Tanner responded that the plea should be denied. She argued first that service comes after filing suit and thus is not jurisdictional. She then contended that the suit against Scott was in substance a suit against the University; she reasoned that if the suit against Scott was timely (and for purposes of this appeal, we assume that it was), then limitations could not bar the suit against the University. Next, she argued that Scott and the University were represented by the same counsel, so the failure to serve the University caused no prejudice, or at least that the common representation presents a fact issue about her diligence. Finally, she claimed that the University’s delay in substituting itself for Scott under § 101.106(f) of the Tort Claims Act would deny Tanner her right to a trial if the suit against the University can be dismissed. The trial court granted the University’s plea to the jurisdiction without ruling on the summary-judgment motion.

Because of several severance orders, this case comes to us with the University as the only defendant in this suit.

The Third Court of Appeals reversed. 644 S.W.3d 747 (Tex. App.—Austin 2022). It principally relied on this Court’s decision in Prairie View A&M University v. Chatha, 381 S.W.3d 500 (Tex. 2012), which explains how to determine whether a requirement counts as a "[s]tatutory prerequisite[] to a suit" under § 311.034. As the court of appeals put it, Chatha directs courts to conduct this inquiry "by using a three-prong test," which the court recounted as follows:

First, "to fall within the ambit of section 311.034, a prerequisite must be found in the relevant statutory language." "Second, the prerequisite must be a requirement." Third, "the term ‘pre’ indicates the requirement must be met before the lawsuit is filed."

644 S.W.3d at 751 (citations omitted) (quoting Chatha, 381 S.W.3d at 512).

According to the court of appeals, the "diligent-service requirement" fails all three "prongs." It found "the first two prongs of the Chatha test" unsatisfied because the diligence requirement "‘is not found in the relevant statutory language’ of section 16.003(a) and it is not a ‘requirement’ of that statute." Id. at 752 (quoting Chatha, 381 S.W.3d at 512). Indeed, the court of appeals observed, "the text of the personal-injury statute of limitations in section 16.003(a) neither references nor requires diligent service," which the court found unsurprising given that any role for diligence is "a creation of the judiciary." Id. Nor can the third prong be satisfied, the court held, because a "prerequisite … is to be complied with prior to filing suit." Id. (emphasis added) (quoting Chatha, 381 S.W.3d at 514-15). Diligence in service necessarily measures actions that follow rather than precede filing, so the court concluded that diligence could not be a statutory "prerequisite" to suit. Id.

The court of appeals therefore held that untimely service does not implicate jurisdiction under § 311.034, which in turn means that governmental entities cannot challenge untimely service through a plea to the jurisdiction. Id. at 752-53. The court therefore reversed the district court’s judgment. It did not address whether Tanner’s service was untimely under the University’s alternative motion for summary judgment. That motion, the court concluded, had yet to be ruled on by the district court and thus was not part of the appeal. Id. at 753 n.2.

The University filed a petition for review, which we granted.

II

We disagree with the court of appeals’ conclusion.

A

[5–9] First, the court analyzed the wrong question. There is no freestanding "diligent-service requirement"—there is only a requirement of timely service. Diligence in attempting service prevents the running of limitations for as long as a plaintiff truly labors to achieve service of process. "If service is diligently effected after limitations has expired, the date of service will relate back to the date of filing." Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007); accord Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009). Diligence for its own...