July 2024

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 "Do not withhold good from those to whom it is due, when it is in your power to act."

Proverbs 3:27

Greetings from Jeffrey Smith

It seems like many of our greetings revolve around the sports schedule at the time, which should not be too surprising. Two great soccer tournaments are about to conclude, it’s the middle of baseball season (and we’re hoping the Rangers find their way the second half of the season), and football season is just around the corner (Sic Em Bears!). For those Cowboys faithful, another season of disappointment is just around the corner. But before we get there, one of the greatest events that only comes around every four years is about to begin. My family, especially my wife, cannot wait for the track and field events. I’m sure the rest of you cannot wait for the great competitions that will capture the world’s attention, such as artistic swimming, flag football, handball, table tennis, and breaking, amongst many others. Whatever sport draws you in, we hope you enjoy watching the Olympics and celebrating the success of the athletes competing.  Go USA! USA! USA!

Statute of Limitations: It Requires More than Just Filing Suit Before Limitations Runs

by Jeffrey Smith

One of the first things to look for when reviewing a new suit is whether the plaintiff timely filed suit. Virtually every lawsuit is governed by a statute of limitations, which establishes a time limit for filing suit in a civil case. For most tort claims in Texas, the statute of limitations is two years from the date of the incident that caused injury or damage. While it is easy to look at the date a suit is filed and tell whether it was filed within the statute of limitations, this is not the only inquiry.  A suit timely filed within the statute of limitations may still be barred by limitations.



Texas courts have consistently held that filing a lawsuit does not stop the limitations period from running unless the plaintiff exercises due diligence in the issuance and service of citation, i.e. a plaintiff not only has to timely file suit, he or she also must use due diligence to serve the defendant. When a plaintiff files within the limitations period but does not serve the defendant until after limitations has expired, the service relates back to the date of filing only if the plaintiff was diligent in serving the defendant. The duty to use diligence continues from the date suit is filed until service is completed meaning a plaintiff must explain every delay in obtaining service on the defendant and be prepared to show every step taken to serve the defendant if a limitations defense is asserted. Lack of due diligence can be found as a matter of law if a plaintiff fails to offer a valid excuse for delays in obtaining service. While there is no set time as to how much time is too much, courts have upheld summary judgment for failure to explain even brief gaps of a few weeks.  Some examples of failing to exercise due diligence include:


  • Waiting three months after filing suit when limitations had passed to request issuance of citations and citing as the only excuse a request by the insurance adjuster for more time to evaluate the claim.
  • Waiting five months after filing suit when limitations had passed to serve the defendant and offering only an explanation for why service was not attempted previously.
  • Attempting to justify failure to use reasonable diligence to serve by explaining it resulted from a miscommunication between lawyers.
  • Failing to explain multiple gaps between attempts to serve the defendant.
  • Failing to explain 18-day delay between expiration of service and limitations.


The next time you are reviewing a new lawsuit, do not just look at the filing date and assume Plaintiff timely filed just because suit was filed before the statute of limitations ran. If suit is filed on the eve of limitations or limitations runs after suit was filed, and there is any delay in serving the defendant, the case might not be timely warranting an early motion for summary judgment.

Conflicts Resolved

Summary Judgement Victory!

Marshall Feltus, Richard Harwell, and Jeff Smith obtained summary judgment and complete dismissal of a premise liability claim brought against a national pizza chain. Plaintiff claimed he slipped and fell on ice while walking to his car after picking up a pizza during the Winter Ice Storm of 2021. In his deposition, Marshall Feltus got Plaintiff to admit he knew about the ice storm and knew there was ice on the ground, establishing the condition was both open and obvious and a natural condition for which Texas Courts have established there is no duty to warn. Richard Harwell prepared the Motion for Summary Judgment, which after an oral hearing, a Dallas judge granted summary judgment and dismissed the case.  

Congratulations!



Karen Kennedy

Promoted to Partner

We are pleased to announce that Karen Kennedy has been elected to partner in the firm effective July 1st, 2024.


Thank you for all of your hard work and dedication to the firm!

Thank you for being an essential part of our success. Happy Anniversary!

Paul Bennett

7/19 - 25 years

Rachael Favret

7/24 - 1 year

Cole Thompson

7/31 - 1 years

David Colley

7/23 - 12 years

Kristi Kautz

7/29 - 10 years

SAVE THE DATE



Texas Law Update in Chicago


For Insurance Claim Professionals, Risk Managers, and In-House Counsel.


Our Seminar is free of charge and will include materials, continental breakfast, lunch and continuing education hours approved through the Texas Department of Insurance and the State Bar of Texas

Register Now

CLM DALLAS LUNCH AND LEARN


Our very own Kristi Kautz was given the opportunity to provide her expertise on the topic of Third Party Litigation Funding during an engaging Lunch and Learn session put on my the CLM Dallas Chapter.

 

Interested in continuing education? Contact our office to learn more about the variety of courses we offer.

SUMMER SOFTBALL


Our softball team has given their all this season! We've seen blood, sweat, and tears, but our amazing team keeps pushing through and having fun!

HAPPY FOURTH OF JULY

We hope you had a wonderful Independence Day filled with friends and family!  

Fletcher Farley Shipman & Salinas LLP


fletcherfarley.com

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