J.D. Auto Group, Appellant v. Michael H. Bell, Appellee (2026)

OPINION

This employment dispute with a decades-long procedural history returns to this Court on permissive appeal. In a prior appeal, we reversed a final summary judgment rendered against JD Auto Group in its bill-of-review proceeding that challenged a no-answer default judgment rendered against it and in favor of Appellee Michael H. Bell. J.D. Auto Corp. v. Bell, 697 S.W.3d 441, 448 (Tex. App.—El Paso 2024, no pet.) (JD Auto I). We vacated the default judgment, returned the parties to their original status as plaintiff and defendant, and remanded the case for further proceedings. Id. On remand, JD Auto moved for a traditional summary judgment based on its limitations defense. The trial court denied the motion and certified its order for interlocutory appeal. On this second review, we reject Bell's contention that we lack appellate jurisdiction; and, on the merits of the appeal, we hold that JD Auto met its burden to conclusively establish its limitations defense, that no tolling doctrine applies, and that Bell failed to raise a genuine issue of material fact on his exercise of reasonable diligence in effectuating service after limitations had expired. We reverse the trial court's order denying summary judgment and render judgment in JD Auto's favor.

I. BACKGROUND

A. The employment lawsuit and no-answer default judgment

Bell worked for JD Auto for a three-month period from March 7 to June 6, 2013. After JD Auto terminated Bell's employment, he filed an administrative complaint asserting employment discrimination. On December 15, 2014, the Texas Workforce Commission Civil Rights Division (TWC) sent Bell a notice informing him that his complaint had been processed by the agency. The letter also informed him of his right to bring a private civil action in state court.

On January 7, 2015, he filed suit alleging that JD Auto had terminated his employment in retaliation for his exercise of a legally protected right, thereby committing an unlawful employment practice in violation of § 21.055 of the Texas Labor Code.¹ Our previous appeal detailed attempts Bell's process server made to serve JD Auto's registered agent with legal process. JD Auto I, 697 S.W.3d at 454. The process server claimed he attempted personal service without success from January 14 to February 12, 2015.² On March 25, 2015, Bell's process server executed an affidavit of no service, which he emailed to Bell's attorney on November 11, 2015. Bell's attorney then filed a motion for substitute service with Bell's affidavit attached.

On November 27, 2015, Bell obtained an order authorizing substitute service by posting process either at JD Auto's business address or in the El Paso County Court House. The return of service that Bell later filed with the district clerk, dated December 2, 2015, certified that service was made by posting “in the County Courthouse door.”³ Although the process server later testified that he also posted at JD Auto's headquarters on the same day, neither he nor Bell ever filed an amended return certifying that method of service. See JD Auto I, 697 S.W.3d at 462 n.3 (Soto, J., concurring).

On August 10, 2016, the trial court rendered a no-answer default judgment in Bell's favor, awarding him $303,415 in past economic losses and $300,000 in past compensatory damages, plus post-judgment interest and costs. The judgment recited that JD Auto was duly served with process and the return of service had been on file for ten days. For the following four years and several months, from August 10, 2016 to March 1, 2021, Bell made no efforts to execute on the rendered judgment.⁴ On March 1, 2021, a sheriff's deputy served JD Auto with a writ of execution. Days later, on March 4, 2021, JD Auto filed a petition for bill of review seeking to vacate the default judgment.

The bill-of-review petition alleged that Bell had not obtained effective or valid service of his lawsuit prior to obtaining a default judgment. JD Auto alleged that it first learned of the retaliation suit on March 1, 2021, when a detective with the El Paso County Sheriff's Department appeared at one of its offices to serve it with a writ of execution. Both sides next filed competing motions for traditional summary judgment. JD Auto maintained that Bell's purported service by posting did not satisfy constitutional due process to effectuate service on it. Conversely, Bell argued that JD Auto's equitable bill of review was barred by limitations because it was brought more than four years after rendition of judgment and no fraud exception applied. The trial court granted Bell's motion and denied JD Auto's, and JD Auto appealed. On direct appeal, we reversed and remanded for further proceedings. JD Auto I, 697 S.W.3d at 462.

B. Proceedings on remand and current appeal

On return to the trial court, Bell filed a “post-bill of review petition” as “plaintiff/bill of review respondent,” and renewed his retaliation claim against JD Auto as the “defendant/bill of review petitioner.” His petition alleged that JD Auto “has already appeared in the cause.” He asserted that JD Auto terminated his employment on June 6, 2013, in violation of Tex. Labor Code § 21.055.

JD Auto moved for traditional summary judgment on limitations, arguing that Bell failed to effectuate service of process within the two-year period required by Tex. Labor Code § 21.256 or to make diligent and continuous attempts at service after limitations had run. As evidence, JD Auto attached to its motion: (1) Bell's original petition filed in 2015 in trial cause number 2015DCV0042; and (2) a copy of JD Auto I.

Bell responded by arguing that: (1) JD Auto “waived any allegations of defective service” by entering a general appearance to Bell's post-bill of review petition; and (2) even if service was defective: (i) no additional service was required after the setting aside of the previous default judgment pursuant to Texas Rule of Civil Procedure 123; and (ii) JD Auto failed to carry its burden to prove Bell's lack of diligence in attempting to effectuate service through substitute service. Bell's response included no additional evidence. The trial court denied JD Auto's motion for summary judgment and granted permission for it to seek an immediate appeal under Tex. Civ. Prac. & Rem. Code § 51.014(d). By written order, we accepted the appeal and deemed the notice of appeal filed. Tex. Civ. Prac. & Rem. Code § 51.014(f); Tex. R. App. P. 28.3.

II. ISSUES ON APPEAL

JD Auto brings four issues supporting its argument that the trial court erred in denying its motion for summary judgment. Its first issue contends it supported its motion with conclusive evidence establishing that the statute of limitations had expired on Bell's employment claim for lack of service. It maintains that (1) Bell failed to offer evidence raising a fact issue on the reasons for his delay in effectuating service; and (2) Bell's legal arguments provide no justifiable excuse for the “ten-year delay” in serving JD Auto with process. Grouped together, JD Auto's remaining three issues ask the following questions: (1) whether Bell's delay in serving process was excused by JD Auto's filing of a bill of review petition, where this Court holds the service supporting the default judgment was invalid and constitutionally inadequate; (2) whether the trial court could properly exercise jurisdiction over JD Auto, nearly a decade later, where the record does not demonstrate any citation was served in compliance with the Texas Rules of Civil Procedure; and (3) whether Rule 123, more specifically, prohibits JD Auto from asserting that Bell's suit was barred by limitations because of his failure to use diligence in properly effecting service given that Rule 123 was enacted to address non-resident defendants and does not apply in this instance.

Responding, Bell first challenges our appellate jurisdiction before reaching the merits of the limitations defense. He contends the trial court never made a ruling on the controlling question of law it identified in its order granting permission to appeal, and thus, we lack jurisdiction. Alternatively, he argues that we should decline to consider JD Auto's presented issues, contending they exceed the scope of the controlling question of law identified in the certified order. Otherwise, on the merits of the defense, he opposes JD Auto on two grounds. First, he maintains that Rule 123 renders moot JD Auto's complaints about lack of timely service. Second, he argues that JD Auto failed to conclusively establish entitlement to summary judgment on its limitations defense.

We first consider Bell's jurisdictional challenge.

III. PERMISSIVE JURISDICTION AND THE SCOPE OF THE APPEAL

Bell first argues that, because the trial court did not make a ruling on the “controlling question of law” identified in its order, we lack jurisdiction over this appeal. Second, he contends the scope of the appeal should be limited to the “certified issue” identified by the trial court. Specifically, he argues that because the trial court's order merely addressed personal jurisdiction, we should refuse jurisdiction over the limitations issue. We address each argument in turn beginning with the governing statute.

A. The permissive appeal statute and controlling precedents

Trial and appellate courts perform distinct functions under the permissive-appeal statute. See Tex. Civ. Prac. & Rem. Code § 51.014(d), (f). As an exception to the final judgment rule, a trial court in a civil action not brought under the Family Code may, by written order, permit an appeal from an order that is not otherwise appealable. Id. § 51.014(d), (d–1). To grant permissive appeal, a trial court must find (1) that the order to be appealed involves a “controlling question of law as to which there is a substantial ground for difference of opinion”; and (2) that an immediate appeal from the order may materially advance the ultimate termination of the litigation. Id. § 51.014(d)(1), (2).

Once an order is certified, the Supreme Court has interpreted the statute as conveying a “discretionary function in the court of appeals” that is distinct from procedures in other appeals. Sabre Travel Int'l, Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 731 (Tex. 2019) (citing Tex. Civ. Prac. & Rem. Code § 51.014(f)). A court of appeals may accept a permissive appeal after considering whether the appeal is “warranted” under subsection (d)—applying the same factors the trial court must consider—and may deny it only after finding it is not. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(f), (g). Whether subsection (d)'s requirements are met is a matter of “independent judgment” for an appellate court. Indus. Specialists, LLC v. Blanchard Ref. Co. LLC, 652 S.W.3d 11, 16 n.8 (Tex. 2022) (plurality op.). The trial court's finding has “no bearing” on the intermediate court's evaluation; it is “merely the prerequisite for the court of appeals to exercise its discretion.” Id. at 16. Moreover, any difference of opinion or “daylight between the two courts” supports a finding that the appeal is warranted under subsection (d)(2). Helena Chem. Co. v. Bales, 735 S.W.3d 728, 731 (Tex. 2026) (per curiam).

B. Analysis

(1) Appellate jurisdiction

Bell first argues we lack jurisdiction over this appeal because, he contends, the trial court's order granting permission to appeal was defective because it failed to include a ruling on the question of law identified in the order. Based on controlling precedents, we disagree.

We begin with the text of the trial court's certified order. After denying JD Auto's motion for summary judgment, the trial court granted it permission to appeal “this Order” under Texas Rule of Civil Procedure 168 and § 51.014(d) of the Texas Civil Practice and Remedies Code. The order certified the following question:

Based upon the Eighth Court of Appeals opinion in [JD Auto I], does the trial court retain personal jurisdiction over Michael H. Bell's claims. (Emphasis added)

Additionally, it addressed whether an immediate appeal could materially advance the ultimate termination of the litigation:

The Court finds, therefore, that immediate appeal from this Order may materially advance the ultimate termination of the litigation if the Court of Appeals finds for Defendant concerning the statute of limitations barring Plaintiff's claims. (Emphasis added)

At the hearing, the judge expressed from the bench that he granted permission to appeal in part because he wanted this Court to clarify or “tell [the trial court], hey, we already told you the case is closed, ineffective service, lack of due diligence and the case should be summarily closed.”

Bell relies on Archibald v. El Paso Orthopedic Surgery Group, P.A., No. 08-22-00091-CV, 2023 WL 2214184, at *7 (Tex. App.—El Paso Feb. 24, 2023, no pet.) (mem. op.), for the proposition that our jurisdiction is limited to answering the specific question identified by the trial court. In Archibald, we dismissed the appeal because the trial court had not ruled on the legal issues presented on appeal, which violated § 51.014(d)'s requirements. Id. at *6, *8. There, the issues on appeal were copied from a list of questions in the trial court's order, and their wording suggested that the court had not even reviewed the defendant's motion. Id. at *6. The certified order asked us to determine the accrual date for claims the motion did not address, as well as which of six possible accrual dates applied to the claims it did address. Id. at *4–5. We concluded that, by labeling these antecedent or extraneous fact issues “controlling questions of law,” the trial court had sought to delegate to us the task of reviewing the motion in the first instance and improperly sought an advisory opinion unavailable in any appeal. Id. at *7. We are not persuaded that Archibald controls here, and we rely instead on Supreme Court precedents.

The Texas Supreme Court applies the same standard to the question of whether the trial court has ruled on an issue in a permissive appeal as it does for preservation of error—that is, whether the record shows the trial court ruled on the substance of a motion, expressly or implicitly. Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006) (citing Tex. R. App. P. 33.1(a)(2)(A)). Consistent with this approach, the Supreme Court has not required a specific ruling on the question identified by the trial court in permissive appeals. See, e.g., Point Energy Partners Permian, LLC v. MRC Permian Co., 669 S.W.3d 796, 812 (Tex. 2023) (remanding retained-acreage question as non-advisory and properly preserved but not decided below). In Sabre Travel, the Court held jurisdiction was proper even though the trial court had identified and not specifically decided a question closely resembling the one here—whether a prior appellate decision “could be construed to make it distinguishable as controlling authority” as to the trial court's summary judgment ruling. 567 S.W.3d at 736; see also Helena, 735 S.W.3d at 730 (appeals court had jurisdiction over summary-judgment ruling itself and was not limited by the trial court's framing of the controlling question of law).

Here, the trial court's order denies JD Auto's motion for summary judgment. In granting permission to appeal, it then identifies a “controlling question of law as to which there is a substantial ground for difference of opinion,” and it determines as well that an immediate appeal may materially advance the ultimate termination of the litigation if we ruled for JD Auto on “the statute of limitations barring [Bell's] claims.” See Tex. Civ. Prac. & Rem. Code § 51.014(d)(1), (2). The trial court's question, when read in context with surrounding text, properly certifies for immediate appeal its ruling on JD Auto's limitations defense, and it further asks whether the disputed issue was controlled by our decision in JD Auto I.⁵ See Helena, 735 S.W.3d at 730. Unlike Archibald, nothing in the trial court's order suggests the ruling was merely a formality for purposes of seeking an advisory opinion or that it sought to delegate the issue to us to determine in the first instance. See Archibald, 2023 WL 2214184, at *7. Any variance between the trial court's ruling and its stated question shows only that the trial court sought to distill its ruling into a question of law suitable for appellate review. We thus reject Bell's contention that we lack permissive jurisdiction.

(2) Scope of the appeal

Bell argues in the alternative that we should exercise our discretion to limit our review to the trial court's question—or, more precisely, to his reading of it. Bell interprets the question as asking whether the trial court has personal jurisdiction over JD Auto in the current action. As explained above, we view our function differently. Having already determined the trial court's order satisfies the requirements for a permissive appeal, we are instructed to follow our ordinary appellate procedures and not to impose an overly strict construction of the issues presented. See Elephant Ins. Co., LLC v. Kenyon, 644 S.W.3d 137, 147 (Tex. 2022) (“While ‘involvement’ of a controlling legal issue is essential to securing a permissive appeal, the statute plainly provides that it is the order (or, as the case may be, the relevant portion of the order) that is on appeal, and the rules of appellate procedure preclude a strict construction of issues presented on appeal.”); Boren Descendants v. Fasken Oil and Ranch, Ltd., 741 S.W.3d 135, 137 (Tex. 2026) (per curiam) (remanding to court of appeals to address affirmative defense that trial court ruled on but omitted from question on affirmative defenses). We conclude the challenged order and “all fairly included subsidiary issues and ancillary issues pertinent to resolving the controlling legal issue,” sets the scope of this appeal. Elephant, 644 S.W.3d at 147. We decline to limit our review as Bell urges, and reach all issues raised and necessary to final disposition of the appeal. Tex. R. App. P. 47.1.

We turn next to consider the parties' arguments on the summary judgment ruling.

IV. THE LIMITATIONS DEFENSE

JD Auto contends the trial court erred in denying its motion for summary judgment on its limitations defense. On appeal, it's argument is two-fold. First, JD Auto contends that, in bringing an action for an unlawful employment practice, Bell was required to properly serve it with legal process both to invoke personal jurisdiction and to toll the running of limitations. JD Auto argues that, because it established it was not properly served before the expiration of the limitations period, Bell was obligated to offer evidence raising a genuine issue of material fact on whether he exercised diligence to effectuate service after the two-year period of limitations expired. Second, JD Auto maintains that Bell's legal arguments made in response to JD Auto's motion did not excuse his failure to exercise diligence in effecting timely service of process.

A. Standard of review and applicable law

“A court must grant a traditional motion for summary judgment forthwith if the summary judgment evidence shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out.” Draughon v. Johnson, 631 S.W.3d 81, 87 (Tex. 2021) (quoting Tex. R. Civ. P. 166a(c)) (cleaned up). “A defendant moving for a summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense.” Id. at 88 (quoting Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 593 (Tex. 2017)). Included within this overarching framework, the defendant must negate defenses like the discovery rule and tolling doctrines that hold that “certain days within the limitations period should not count.” Gill v. Hill, 688 S.W.3d 863, 868, 870 (Tex. 2024). But, notably, the defendant does not shoulder the burden to negate every potential challenge to a limitations defense. Id. Rather, “the plaintiff [bears] the burden to raise a fact issue on equitable defenses that defeat limitations even though [limitations] has run.” Id. (citing Draughon, 631 S.W.3d at 85).

Determining which side of the line a particular defense falls on depends on whether it fits within a historically recognized category of exception. See Draughon, 631 S.W.3d at 90. To illustrate, the Texas Supreme Court holds that a defendant bears the burden to negate equitable tolling based on a procedural defect. Levinson Alcoser Assocs., L.P. v. El Pistolon II, Ltd., 670 S.W.3d 622, 627, 631–33 (Tex. 2023). On the other hand, diligence in effectuating service is categorized differently. As Levinson detailed, whether a plaintiff procured service diligently after the limitations period expired is “distinct from tolling” and it is a defense to limitations on which the plaintiff bears the burden. Draughon, 631 S.W.3d at 93. And the burden is twofold: the plaintiff must first “present evidence regarding the efforts that were made to serve the defendant” and he must then “explain every lapse in effort or period of delay.” Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007). If the plaintiff's explanation raises a fact issue on diligence, the burden then shifts back to the defendant to show why, as a matter of law, the explanation is insufficient. Id.

Here, JD Auto was required to prove (1) when Bell's cause of action accrued and (2) that Bell “brought its suit” more than the applicable number of years later—that is, sometime after the limitations period ran. Id. at 89. A plaintiff timely “brings suit by filing an original petition and serving the defendant with process before the statute of limitations expires.” Texas State Univ. v. Tanner, 689 S.W.3d 292, 296 (Tex. 2024) (emphasis added). Still, the Texas Supreme Court has also held that “late service of process can relate back to the date the petition was filed and thus be considered timely.” Id. But, the “relation-back opportunity” is available only if the plaintiff shows he was diligent in attempting service “from the time limitations expired until proper service was finally achieved.” Id. The requirement to timely bring suit includes the requirement of timely service. Id.

B. Whether JD Auto conclusively established its limitations defense

JD Auto maintains it conclusively established that Bell's retaliation claim was barred by the two-year statute of limitations applicable to a civil action alleging an unlawful employment practice, see Tex. Labor Code § 21.256, and that Bell failed to carry its burden to explain the reasons for its delay in effectuating timely service. Proulx, 235 S.W.3d at 216.

To prevail on this defense, JD Auto was required to conclusively establish (1) when Bell's claim accrued, (2) when limitations expired, (3) that Bell did not bring suit—by filing his petition and serving JD Auto—within the limitations period, and (4) that no tolling theory applied. If JD Auto carried its burden, the burden then shifted to Bell for him to raise a fact issue on diligent service by presenting evidence of the efforts he made to serve JD Auto after limitations expired and to adequately explain every lapse in efforts undertaken.

(1) When Bell's claim accrued and the limitations period expired

An action asserting an unlawful employment practice “requires an exhaustion of administrative remedies that begins by filing a complaint with the [TWC].” Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 (Tex. 2010) (citing Tex. Labor Code § 21.201). This requirement impacts the limitations calculation in two respects. First, a complainant must bring an administrative complaint “not later than the 180th day after the date the alleged unlawful employment practice occurred.” Tex. Labor Code § 21.202(a). Second, the two-year period for bringing a court action under Chapter 21 runs from the date the administrative complaint is filed. See Tex. Labor Code § 21.256 (providing that “[a] civil action may not be brought ․ later than the second anniversary of the date the complaint relating to the action is filed”).

Here, JD Auto submitted Bell's original petition in the underlying suit as summary judgment evidence. Bell's petition alleges he was terminated on June 6, 2013, thus admitting the challenged employment action occurred on that date. See Weekley Homes, LLC v. Paniagua, 646 S.W.3d 821, 828 (Tex. 2022) (providing that “judicial admissions in an opposing party's pleadings may be used as evidence to support a summary-judgment motion”). Moreover, Bell attached to the petition a right-to-sue letter sent to him by the TWC dated December 15, 2014. Given the deadline for filing an administrative complaint, it can be inferred from the letter that a TWC complaint was filed sometime after the date of termination, June 6, 2013, and the 180-day complaint-filing deadline, or December 6, 2013. In other words, the letter constitutes evidence that Bell timely filed a complaint with the TWC by December 6, 2013—at the latest—and thus the limitations period for Bell's unlawful employment practice claim expired two years later, on December 6, 2015. Tex. Labor Code §§ 21.202(a), 21.256.

Bell argues, however, that his petition does not establish the accrual of his claim. He notes that JD Auto's motion erroneously stated Bell's cause of action accrued in January 2015, when he filed suit, and he therefore had until January 2017 to serve legal process. Although Bell raised this error in his summary judgment response, he still acknowledged in that pleading that his claim accrued when he filed a TWC complaint, not when he filed suit. Regardless of whether JD Auto established the exact accrual date or simply misstated the date in its motion, the allegations in Bell's filed petition, coupled with its attached exhibit, establish that his § 21.256 claim accrued by December 6, 2013, and the limitations period expired after two years, on December 6, 2015, at the latest. See Levinson, 670 S.W.3d at 632 (explaining it is “not always necessary to establish a precise accrual date if the summary-judgment evidence conclusively establishes a claim is time-barred” and holding a plaintiff could not “avoid summary judgment by complaining about [the defendant's] failure to pinpoint an accrual date”).

(2) Whether JD Auto established that Bell failed to serve process before expiration of limitations

Having established when limitations expired, we next determine whether JD Auto conclusively established that Bell failed to serve it with legal process either before limitations expired or afterwards by exercising due diligence. As summary-judgment evidence establishing lack of timely service, JD Auto attached a copy of our opinion in JD Auto I and argued that we had already decided as law of the case that it was not timely served.

Under the law-of-the-case doctrine, a court of appeals is ordinarily bound by its prior determination of a matter of law in the same case. Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003). The doctrine rests on finality and discourages parties from relitigating an issue “in the hope of finding a more favorably disposed tribunal.” Roman v. Ramirez, 573 S.W.3d 341, 348 (Tex. App.—El Paso 2019, pet. denied). It does not apply if the issues and facts are not substantially the same in the second proceeding. Hallmark v. Hand, 885 S.W.2d 471, 475 (Tex. App.—El Paso 1994, writ denied). When one or both parties amend their pleadings, the issues or facts may have changed enough that the doctrine no longer applies. Hudson v. Wakefield, 711 S.W.2d 628, 630–31 (Tex. 1986) (holding that a prior decision reversing summary judgment was not law of the case after trial on amended pleadings). But the doctrine may apply in a different posture to a different claim, where the appellate court has decided as a matter of law, on the same record, a matter on which the later claim depends. Farmers Grp. Ins., Inc. v. Poteet, 434 S.W.3d 316, 329–31 (Tex. App.—Fort Worth 2014, pet. denied); see Roman, 573 S.W.3d at 348 (citing cases).

(a) Law of the case doctrine

Applying that standard, we turn to whether our decision in JD Auto I is law of the case on the issue of timely service of process in compliance with limitations. We first consider what we decided and then whether the issue and record before us on summary judgment are substantially the same. Our prior opinion likewise arose in a summary-judgment posture. See JD Auto I, 697 S.W.3d at 446. JD Auto sought traditional summary judgment on two grounds: a direct attack on the default judgment based on extrinsic fraud and a collateral attack based on lack of service. Id. at 448. We reached only the collateral attack. Id. at 450. Our decision on the collateral attack was divided into two subparts. We first considered whether JD Auto's summary-judgment evidence proved that Bell failed to make sufficient attempts at personal service between January and February 2015 before resorting to substituted service. Id. at 453–57. One justice concurred without opining on that issue. See id. at 461 (Soto, J., concurring). In the second portion of our opinion, we held that JD Auto “conclusively proved its due process rights were violated by Bell's lack of notice of the suit prior to entry of a default judgment” and that “the trial court lacked personal jurisdiction over JD Auto when it entered default judgment” on August 10, 2016. Id. at 459. The concurring justice agreed with that holding. Id. at 461 (Soto, J., concurring) (“I agree with the majority's conclusion that the trial court never acquired personal jurisdiction over JD Auto prior to issuing the default judgment.”). We held that the default-judgment record conclusively established that JD Auto was not served by a permissible method of service prior to entry of default judgment on August 10, 2016. Id. at 459.

We next consider whether that holding may apply as law of the case despite the different posture and record between the two appeals. In its motion for summary judgment on remand, JD Auto relied solely on the part of our opinion holding that it was not served with citation prior to entry of the default judgment. There, we stated that “JD Auto's evidence of the record from the employment discrimination suit established it was never personally served with process and the trial court did not acquire personal jurisdiction over it,” and that “JD Auto conclusively proved its due process rights were violated by Bell's lack of notice of the suit prior to entry of a default judgment.” Id. at 459. That holding necessarily encompasses a determination that JD Auto was not served before the trial court rendered a no-answer default judgment. The date of the default-judgment hearing—August 10, 2016—fell more than eight months after December 6, 2015, the latest date on which the limitations period could have expired.

Bell now argues that, because of the procedural posture of JD Auto I, its holding on constitutionally defective service as of August 10, 2016, is not law-of-the-case for the issue of service addressed by JD Auto's motion on limitations. Bell contends JD Auto I's holding was made in the context of personal jurisdiction and not on the merits of a statute-of-limitations defense. He further insists that JD Auto I only held that the trial court abused its discretion in issuing an order for substitute service, and that because a majority did not agree on a common rationale, the decision is not binding precedent. He also contends that even if our opinion declared his service on JD Auto ultimately ineffective for purposes of vacating the default judgment, he urges that service was not void and remained effective for purposes of showing JD Auto was properly served within the limitations period.

Based on controlling precedents, we disagree with Bell's interpretation of JD Auto I. In our prior appeal, we determined as a matter of law that JD Auto was not served prior to entry of default judgment on August 10, 2016. The difference in posture between the two appeals does not alter that determination or limit its effect as law of the case. In Tanner, the Supreme Court treated service for purposes of stopping limitations the same as service for purposes of acquiring personal jurisdiction over a defendant and supporting a default judgment. 689 S.W.3d at 304. The Court held that evidence of informal notice through means other than “formal” or “proper” or “actual service” is insufficient as a matter of law. Id. (“Receiving a petition through means other than formal service ․ is an insufficient substitute for service.”). For that principle, the Court cited precedent in the context of direct attacks on default judgments. Id. at 304 (citing Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990)). We note that Tanner did not hold that service for limitations purposes must strictly comply with the rules of procedure and the trial court's order authorizing service to the same degree required in restricted appeals from no-answer default judgments. The reason is that such appeals from default judgments often involve a complete absence of service, which may raise more acute concerns about due process as opposed to untimely service of process.⁶

On that reading, we recently declined to apply a strict-compliance standard to the issue of timely service in Bexar County Hospital District v. Levine, No. 08-25-00118-CV, 2026 WL 187457 (Tex. App.—El Paso Jan. 23, 2026, no pet.) (mem. op.). We held the defendant's summary-judgment evidence showing the citation misnamed the defendant did not conclusively establish that the defendant was not actually served within the limitations period. Id. at *1. We explained that misnomer was a tolling doctrine—a doctrine that courts have applied liberally in favor of the plaintiff—that the defendant bore the burden to negate. Id. at *5. We further noted that the return of service was absent from the appellate record, reflecting a gap in the defendant's own summary-judgment evidence. Id. at *1 & n.2. When the defendant invoked the strict-compliance standard in a motion for rehearing, we concluded there was “no authority holding that in this context a lack of strict compliance with the rules for service suffices to show that service did not occur.” Id. at *5. Although we turned to default-judgment cases in determining whether a fact issue existed as to service for purpose of limitations, id. at *4, we applied the ordinary summary-judgment standard in determining whether proper and timely service was effected, id. at *3 n.4 (quoting Tanner, 689 S.W.3d at 296).

In JD Auto I, we applied the traditional summary-judgment standard of review to the issue of whether the method of service was “reasonably effective” to give notice—the threshold legal standard for proper service reflected in Rule 106(b)(2). See Tex. R. Civ. P. 106(b)(2); JD Auto I, 697 S.W.3d at 457; see also Mitchell, 649 S.W.3d at 189, 191 nn.12–13 (holding lack of service was conclusively established where the return of service failed to show reasonably effective method of service, and where Rule 107 required filing of a return stating the method of service, and distinguishing cases in which a return merely failed to comply with technical requirements of Rules 106 and 107 such as listing the exact time service was performed). The requirements imposed on the method of service remain the same when a plaintiff carries a burden to establish diligence in achieving timely service. As Tanner noted, “any delay in service after limitations has run requires an explanation—not a conclusory or cursory one, either.” 689 S.W.3d at 299.

In short, service means service in accordance with the rules. See id. at 304. That definition of service applies whether the rules are applied strictly, see Spanton v. Bellah, 612 S.W.3d 314, 316–17 (Tex. 2020), or flexibly, see In re Greater Hous. Orthopaedic Specialists, Inc., 295 S.W.3d 323, 326 (Tex. 2009) (per curiam) (orig. proceeding) (noting that “courts are flexible in [misnomer] cases because the party intended to be sued has been served and put on notice that it is the intended defendant”). In JD Auto I, it would have made no difference if we had applied a stricter standard. Applying the ordinary summary-judgment standard, we determined there was a complete absence of service for purposes of a collateral attack. We see no reason why the same record would not likewise establish the absence of proper service for purposes of limitations. See Tanner, 689 S.W.3d at 304. The difference in posture therefore does not prevent our holding in JD Auto I from operating as law of the case on timely service within the statutory limitations period.

We next consider whether the facts and record before us are substantially the same as those in JD Auto I. We noted in our prior opinion that our review of the evidence of lack of service was limited to what was before the trial court at the time of the default judgment. Id. at 451. We thus considered only a portion of the record of the suit, that is, what was attached to JD Auto's motion for default judgment. Id. at 448. This evidence consisted of the complete file from the employment lawsuit up to August 10, 2016, id. at 447, including among other things the pleadings, id. at 448, the initial citation for personal service, id. at 453, the initial return of no-service, id. at 446, the process server's affidavit filed in support of a motion for substitute service, Bell's motion for substitute service, id. at 453, the trial court's order authorizing substitute service, id. at 446, the second citation for service at the courthouse or JD Auto's place of business, the second return of service at the courthouse, id. at 446, a transcript of the default-judgment hearing, id. at 448, and a notice of the default judgment signed on August 10, 2016. Id. at 446–48, 453. We expressly declined to consider the process server's proffered statement contained in a 2021 affidavit—that he posted the citation at JD Auto's business on the same day as his posting at the courthouse—because that affidavit was “extrinsic” to the default-judgment record before the trial court. Id. at 458 (citing Mitchell, 649 S.W.3d at 191). Similarly, we did not we rely on a 2021 affidavit of James A. Dick IV, the president of JD Auto and its registered agent, who averred that he was never served with either a citation or a copy of Bell's lawsuit, id. at 447, and he additionally provided photographs of JD Auto's business to contradict the deposition excerpts from the process server regarding his 2021 claim that he served process by posting at the business in 2015. Id. at 448.

Compared with that record, the summary-judgment record on remand in this instance includes Bell's original petition and a copy of our prior opinion. The record we considered in JD Auto I included a return of service certifying that the citation was served only by posting in the courthouse. Id. at 446. As the Supreme Court has noted before, “[t]he recitations in the return of service carry so much weight that they cannot be rebutted by the uncorroborated proof of the moving party.” Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). “The weight given to the return is no less when the recitations impeach the judgment than when they support it.” Id. And because the process server was required to specify the method and date of service, Tex. R. Civ. P. 107, the return's silence as to a method of service is prima facie evidence that service was not made by that method. Mitchell, 649 S.W.3d at 192 & n.12. The return of service filed by Bell, dated December 2, 2015, only certified one method of service, posting “in the County Courthouse door.”

As we noted in JD Auto I, a party may offer affidavits, depositions, testimony, and exhibits to rebut a return of service. JD Auto I, 697 S.W.3d at 458. Yet on remand, Bell did not offer any affidavits in its summary-judgment response. Thus, the default-judgment record that we held was sufficient to show lack of service in JD Auto I remains sufficient and uncontroverted for purposes of limitations. We further explained in JD Auto I that the rules allowed Bell to seek to amend the return of service by order of the court. Tex. R. Civ. P. 118; see JD Auto I, 697 S.W.3d at 462 n.3 (Soto, J., concurring) (noting that the return of service was not amended prior to the default judgment and no proof of service through another method was presented prior to the trial court issuing the default judgment). “If the facts as recited in the sheriff's return, pre-printed or otherwise, are incorrect and do not show proper service, the one requesting service must amend the return prior to judgment.” Primate, 884 S.W.2d at 153. “This responsibility extends to seeing that service is properly reflected in the record.” Id. Merely filing an affidavit, however, is not an amendment by order of the court. See Inv. Ideas, Inc. v. Ellekay, LLC, No. 13-10-208-CV, 2010 WL 4657953, at *1 (Tex. App.—Corpus Christi–Edinburg Nov. 18, 2010, no pet.) (mem. op.) (return could not be amended by means of an affidavit filed a month and a half after the default judgment was entered). Bell did not seek to amend the return on remand, and he did not include an amended return in the summary-judgment record.

Bell suggests nonetheless that we may simply take judicial notice of the process server's 2021 affidavit, in which he claims he served process on the business door in December 2015, citing KBCB Invs., LLC v. Black, No. 03-23-00306-CV, 2023 WL 4938102, at *1 (Tex. App.—Austin Aug. 3, 2023, no pet.) (mem. op.) (considering summary-judgment record in prior appeal for purpose of determining whether to accept a permissive appeal). We disagree that KBCB supports taking judicial notice of evidence from a prior proceeding for the purpose of determining, on the merits, the sufficiency of summary-judgment evidence in a subsequent phase of the proceeding.

Bell cites Rule 166a and case law for the proposition that, in reviewing a summary judgment, an appellate court must consider evidence in the court's record that was pointed out in the motion or response. See Tex. R. Civ. P. 166a(c); see State v. Three Thousand, Seven Hundred Seventy-Four Dollars & Twenty-Eight Cents U.S. Currency, 713 S.W.3d 381, 389 (Tex. 2025). Yet, contrary to his argument, Bell did not point out the process server's 2021 affidavit in his summary judgment response here. Even if he had, he does not cite any authority permitting us to accept a late filed affidavit as a return of service that evidences formal service of process. See Tex. R. Civ. P. 107 (requiring that an officer or authorized person who executes a citation must properly complete and file a return of service).

Additional reasons dissuade us from adopting Bell's position. Sister courts facing the same issue in cases in the same posture and with similar records have held that a defective return by itself conclusively establishes lack of service for limitations purposes. In Mathewson v. Anglia Homes, L.P., No. 01-23-00874-CV, 2025 WL 2471799, at *7 (Tex. App.—Houston [1st Dist.] Aug. 28, 2025, no pet. h.) (mem. op.), the trial court granted a bill of review vacating a default judgment for lack of service because the return receipt lacked the addressee's signature required by Rule 107(c). The trial court then granted summary judgment on limitations based on the same evidence. Id. The court of appeals affirmed, explaining that the defective return conclusively established the limitations defense. Id.; see also Ramirez v. Consol. HGM Corp., 124 S.W.3d 914, 919 (Tex. App.—Amarillo 2004, no pet.) (limitations conclusively established where motion for summary judgment referred to prior order quashing service based on defective return); Keeton v. Carrasco, 53 S.W.3d 13, 18–19 (Tex. App.—San Antonio 2001, pet. denied) (defective return conclusively established lack of service but raised fact issue as to diligence); Salazar v. Pena, No. 08-23-00298-CV, 2024 WL 4512349, at *1 (Tex. App.—El Paso Oct. 17, 2024, no pet.) (mem. op.) (return of service that misidentified the defendant established lack of service; process server's affidavit offered in plaintiff's response merely confirmed the defect).

Because the issue of service and the facts bearing on it are substantially the same in this proceeding as in the prior appeal, we could conclude that JD Auto I qualifies as law of the case on the issue of timely service. Still, there remains a final consideration. To qualify for law-of-the-case treatment, we must still determine whether our prior decision was clearly erroneous. See Briscoe, 102 S.W.3d at 716.

Bell now contends for the first time that we clearly erred in JD Auto I by narrowly framing JD Auto's bill of review as a collateral attack, which limited our review to the record at the default-judgment hearing. Again, the fact that we considered only the evidence relevant to the collateral attack on the default judgment does not undermine our determination that it was sufficient to establish lack of service. Bell contends in this proceeding that the default-judgment record itself raised a fact issue as to whether JD Auto was properly served both at the courthouse and at its business location. He argues again that service was properly made at the courthouse in accordance with the then-effective court order authorizing substitute service. He further argues that our opinion has been superseded by case law that has “made clear that both modes of service initially authorized by the trial court—service at the courthouse and service at JD Auto's headquarters—were constitutionally permissible and valid.” But the cases he cites only reiterate what we already said, that service by posting is only permitted as a last resort. See Thompson v. Landry, 713 S.W.3d 372 (Tex. 2025); JD Auto I, 697 S.W.3d at 458 (citing Mitchell, 649 S.W.3d at 189; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950)). We conclude that Bell has not shown clear error and decline to reconsider our prior determination that JD Auto was not properly served as of the date of the default-judgment hearing. JD Auto I thus qualifies for law-of-the-case treatment.

(b) Whether a remand is warranted for supplementation

Remand in the interest of justice is appropriate where “the trial court erroneously precluded a party from presenting a necessary aspect of its case” but it “do[es] not allow a second chance to start anew merely because hindsight reveals that a party may—or should—have offered more or different evidence.” Valk v. Copper Creek Distribs., Inc., 733 S.W.3d 9, 14 (Tex. 2026).

We further consider whether to remand so that Bell may amend the return of service. Rule 118 permits amendment of a return of service “[a]t any time,” but only “upon such notice and on such terms as [the court] deems just,” and is not allowed where “material prejudice would result to the substantial rights of the party against whom the process issued.” Tex. R. Civ. P. 118. The defendant must have a fair opportunity to establish the “true facts of service.” Primate, 884 S.W.2d at 153. Otherwise, Rule 118 would operate as an end-run around the statute of limitations and defeat the purpose of the return of service. See Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996) (noting the purpose of limitations is to ensure claims are brought “while the evidence is fresh in the minds of the parties and witnesses”); see also Mitchell, 649 S.W.3d at 191 n.9 (explaining that testimony about service often cannot be contradicted once memories fade).

The only potential evidence of timely service that Bell cites in his brief is the 2021 process server's affidavit. The 2021 affidavit differed from the process server's 2015 affidavit and his return of service in the default-judgment record to the extent the process server stated that the “same citation” that was posted at the courthouse was also posted “as requested by [Bell's counsel]” on the “front, main doors to the front of the show room building.” See JD Auto I, 697 S.W.3d at 447. The process server added “I recall specifically posting the citation and petition on the right double-door, about 5 and 1/2 feet up from the ground.” In his deposition, taken less than three months after he signed the 2021 affidavit, however, the process server would not affirmatively confirm the affidavit as his own.⁷ He testified that nearly all of its content was drawn from his 2015 affidavit, which he likewise had been unable to vouch for as drafted and filed.⁸ More directly, he confirmed that the 2015 affidavit and returns were the sole and complete record of what he did and what he documented. He acknowledged that he was required to document all service and attempts at service in the return itself. See Tex. R. Civ. P. 107. He explained that it was his standard practice to rely solely on the return and to keep no other log, journal, or calendar; the only record is “on the citation itself, on the back half of it when we do a return.” He clarified that he would sometimes keep notes in a yellow notebook with additional details used to prepare an affidavit in support of a motion for substitute service, but “when I got done, I would create the affidavit and I got rid of everything else. The [2015] affidavit was complete with all the information.”

The process server further testified that the additional details in the 2021 affidavit could not be verified. He acknowledged that by the time of his deposition in 2022 he could no longer recall the dates and other details of service.⁹ Although he described how he obtained the original citation for personal service—per his usual practice, applying at the district clerk's office and picking it up in person—he could not say how he obtained the copy of the citation posted at the headquarters. He could not remember who told him to post at the headquarters, spoke to no one there, and identified no other document or witness that could confirm he did so. The one detail in the new affidavit that purported to be a specific recollection—the “right double-door”—he admitted was wrong.¹⁰ He explained that the reason he did not include posting at the headquarters on the return he did sign and file was that he believed it was not authorized: the citation “specifically said post at the courthouse,” and posting at the headquarters was “not what was in the requirements ․ not part of the court order to do so.” Rather than supplying proof of service by posting at the headquarters, the 2021 affidavit and testimony establish only that reliable evidence of such posting of an issued citation no longer exists.

Remanding the case merely for Bell to refile the process server's affidavit or to amend his return of service would needlessly prolong this matter and result in material prejudice to the substantial rights of JD Auto, the party against whom the process was issued. See Tex. R. Civ. P. 118; see also Tex. Labor Code § 21.256. The interests of justice would not be served by requiring the parties to relitigate the issue of service simply because it is the only issue that Bell suggests could plausibly warrant a remand for further factual development, in light of our disposition of Bell's other arguments. See Valk, 733 S.W.3d at 13 (noting “justice is not served by starting anew merely because hindsight may reveal flaws in a party's case”). The process server himself could not recall facts stated in his 2021 affidavit, and several years have since passed. And in reliance on the conclusive force of his return, the process server discarded all other records of his service efforts. Remand in this circumstance would only unsettle the workable rule on which the process server himself relied. Bell himself has not clearly requested remand for further proceedings on the issue of service, suggesting the issue should be declared moot.¹¹

We decline to reconsider our holding that the record conclusively established Bell did not serve JD Auto as of the date of the default judgment on August 10, 2016, a date that fell after the limitations period expired in December 2015, at the latest. JD Auto thus conclusively established the second element of its limitations defense: that Bell failed to bring suit by serving it with process before expiration of the two-year statute of limitations. See Tanner, 689 S.W.3d at 296; see also Tex. Labor Code § 21.256.

(3) Whether a tolling theory was established

Having established that JD Auto was not served within the two-year limitations period, we next consider whether Bell's tolling doctrine applies. Draughon, 631 S.W.3d at 88. Bell contends that several events tolled the running of limitations including: (1) the trial court's order of substitute service in November 2015, (2) the default judgment rendered in August 2016, and (3) our issuance of JD Auto I in 2024, which vacated the default judgment and returned the parties to their original status as plaintiff and defendant.¹² Bell suggests that defective service attempts “under the aegis of [a] substituted service order signed by a district judge” should toll limitations. He cites Draughon for the proposition that the defendant bears the burden to negate “any tolling doctrines asserted” and contends that his use of the term “tolling” to describe his theory shifts the burden to JD Auto. 631 S.W.3d at 92. We disagree.

Draughon clarified that “the non-moving plaintiff” bears the burden to prove two forms of tolling: statutory tolling under § 16.064(b) of the Texas Civil Practice and Remedies Code—where the defendant asserts that the plaintiff filed suit with intentional disregard of proper jurisdiction—and certain equitable defenses that have also been described as tolling. See id. at 92–93 nn.11–12. A dissent joined by three justices suggested that the term “tolling” encompasses all defenses to limitations other than the discovery rule, finding no discernible difference between the two categories of tolling the majority identified—”avoiding” limitations and “affecting the limitations calculation.” Id. at 102 (Bland, J., dissenting). We do not read Draughon's reference to “any tolling doctrine asserted” to mean that a plaintiff can shift the burden by labeling as “tolling” a defense not recognized by Texas law or one for which the Supreme Court has already placed the burden on the non-moving plaintiff. We instead look first to whether the Supreme Court has “directly determined” who bears the burden for the particular defense at issue. Gonzalez v. Zachry Indus., Inc., No. 01-23-00230-CV, 2025 WL 3481001, at *3 n.6 (Tex. App.—Houston [1st Dist.] Dec. 4, 2025, no pet.) (mem. op.) (“[w]e express no view on the burden categories identified in Draughon; we merely follow the statement by the majority of the Texas Supreme Court” as to the burden for the tolling doctrine at issue). That approach is consistent with the Supreme Court's guidance that “[i]n the area of limitations, bright-line rules generally represent the better approach and help ensure predictability and consistency in the jurisprudence.” Draughon, 631 S.W.3d at 96 (quoting Erikson v. Renda, 590 S.W.3d 557, 563 (Tex. 2019)).

As relevant here, the Texas Supreme Court has identified two distinct types of tolling that potentially apply to suits alleging an unlawful employment practice: statutory and equitable. In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 311 (Tex. 2010).

(a) Statutory tolling

Under a general saving statute applicable to all civil actions, limitations are tolled by statute for 60 days from the date a judgment is set aside for lack of jurisdiction, for purposes of filing a second action in a “different court.” Id. at 310 (citing Tex. Civ. Prac. & Rem. Code § 16.064); see also Draughon, 631 S.W.3d at 91. This provision applies to suits originally filed in courts lacking subject-matter jurisdiction and in suits in which the court lacked personal jurisdiction. Sanders v. Boeing Co., 680 S.W.3d 340, 349 (Tex. 2023).¹³ The statute does not apply to a prior judgment attacked by a bill of review, because a bill of review must be filed in the same court. See Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010) (“Because it is a direct attack, a bill of review must be brought in the court that rendered the original judgment, and only that court has jurisdiction over the bill.”). Because no statutory tolling applies, we turn to equitable tolling.

Because the Supreme Court has assumed that the defendant bears the burden to negate equitable tolling based on a similar “procedural-defect” theory, and because JD Auto has not shown that the doctrine applies on these facts, we make the same assumption here. Levinson, 670 S.W.3d at 627, 631–33. JD Auto responds that Bell's proposed tolling theory is “functionally identical” to the equitable defense of diligence. That response anticipates the diligence inquiry we address below. We turn first to whether the substitute-service order or the default judgment supplies a basis for equitable tolling.

(b) Equitable tolling

The Texas Supreme Court has cautioned that equitable tolling has been applied in “carefully circumscribed contexts.” Levinson, 670 S.W.3d at 632. All the same, the Court has suggested that equitable tolling might apply to employment claims against private employers where the plaintiff “has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where [the plaintiff] has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass.” Id. at 628 (quoting Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990)). Courts have declined to apply equitable tolling where the saving statute does not apply, absent a showing of diligence. See, e.g., Heart Hosp. IV, L.P. v. King, 116 S.W.3d 831, 836 (Tex. App.—Austin 2003, pet. denied) (“Even if we were to extend the theory of equitable tolling to statutory proceedings, it would not apply so as to completely overrule the choices made by the legislature ․ [by] allow[ing] a plaintiff twice as long to refile a suit as he had to file it initially.”); Zamora v. Tarrant Cnty. Hosp. Dist., 510 S.W.3d 584, 590–91 (Tex. App.—El Paso 2016, pet. denied) (considering diligence defense despite defendant's assertion that it was a “form of ‘equitable tolling’ ”).

Applying these principles, the order for substitute service and the default judgment provide no basis for equitable tolling. To start, orders of that kind are ex parte and typically prepared by the plaintiff.¹⁴ More specifically, we held in JD Auto I that the substitute-service order on which Bell rests his tolling theory was objectively unreasonable because it relied on a “chance encounter with a citation posted at the courthouse.” 697 S.W.3d at 458 (citing Mitchell, 649 S.W.3d at 189, 191). Such an order may bear on a diligence inquiry, but its entry cannot—merely by virtue of it being signed by a judge—relieve a plaintiff of the duty to make diligent efforts to properly serve a defendant. See Stockton v. Offenbach, 336 S.W.3d 610, 617 (Tex. 2011) (rejecting the plaintiff's argument that the trial court was “solely to blame for the delay in service” during a four-month delay in ruling on a motion for substitute service). The tolling inquiry is thus reduced to diligence, which we address next.

(4) Whether Bell carried his burden to otherwise show diligent service

In the absence of an applicable tolling theory, the summary judgment burden shifted to Bell to produce evidence of diligent efforts he made to serve JD Auto and to explain every lapse in effort. Proulx, 235 S.W.3d at 216; Levinson, 670 S.W.3d at 633. JD Auto argues that Bell bears the burden of explaining every lapse between the date he filed suit in January 2015 and the date of JD Auto's appearance in the bill-of-review proceeding in 2021. Proulx, 235 S.W.3d at 216. As JD Auto notes, we have previously stated that the “duty to use due diligence continues from the date suit is filed until the defendant is served.” Eichel v. Ullah, 831 S.W.2d 42, 44 (Tex. App.—El Paso 1992, no writ). In two recent cases, however, the Supreme Court described it more specifically, stating that the plaintiff must show “she was diligent in attempting service from the time limitations expired until proper service was finally achieved.” Tanner, 689 S.W.3d at 296; City of Houston v. Meka, 697 S.W.3d 656, 657 (Tex. 2024) (per curiam).¹⁵ We accordingly adopt the measure stated in Tanner and Meka: Bell bore the burden of showing diligence from the expiration of limitations in December 2015, “and to explain every lapse in effort or period of delay.” Proulx, 235 S.W.3d at 216.

Bell attached no new evidence to his summary-judgment response, relying instead on citations to JD Auto I. There, we noted that Bell had attached the 2021 affidavit to the traditional motion for summary judgment he filed against JD Auto's petition for bill of review. JD Auto I, 697 S.W.3d at 447, 458. Assuming without deciding that Bell's discussion of JD Auto I is deemed sufficient to call the trial court's attention to the affidavit, the 2021 affidavit at most states that the process server posted the citation at the courthouse and at JD Auto's headquarters on December 2, 2015. See Three Thousand, Seven Hundred Seventy-Four Dollars & Twenty-Eight Cents U.S. Currency, 713 S.W.3d at 389 (citing Tex. R. Civ. P. 166a(i)). Yet, supplanting that assertion, the formal return filed on January 20, 2016, certified only that citation was posted in the El Paso County Courthouse, not at the business premises. When the trial court issued a notice of dismissal for want of prosecution in May 2016, Bell moved for default judgment. Default judgment was entered August 10, 2016, and thereafter vacated. In this summary judgment proceeding, there is no evidence of any effort to serve JD Auto between the expiration of limitations on December 6, 2015, and the August 2016 default-judgment hearing, and no evidence as well between the default judgment and service of the writ of execution in March 2021. Proulx, 235 S.W.3d at 216. Correlated with those periods, Bell provides no explanation for every lapse in effort in procuring service. Id. On the record presented, there is no “relation-back opportunity” available to Bell as he failed to show he was diligent in attempting service “from the time limitations expired until proper service was finally achieved.” Tanner, 689 S.W.3d at 296. As argued by Bell's summary judgment response, we turn next to consider whether Rule 123 precludes JD Auto's limitations defense.

(5) Whether Rule 123 precludes a limitations defense

Bell argued below as he does here that Rule 123 of the Texas Rules of Civil Procedure precludes application of § 21.256's two-year limitations period. In response, JD Auto contends that Rule 123 does not excuse Bell's failure to exercise diligence in serving process. It argues the Rule was enacted to address only non-resident defendant's. Regardless of whether Rule 123 applies to a resident defendant, a question we do not decide, we agree it does not excuse Bell's failure to use diligence in properly effecting service on JD Auto.

Rule 123 provides that: “[w]here the judgment is reversed on appeal ․ because of defective service of process, no new citation shall be issued or served, but the defendant shall be presumed to have entered his appearance to the term of the court at which the mandate shall be filed.” Tex. R. Civ. P. 123. By its plain terms, Rule 123 addresses the issuance of new citation following a reversal. Beyond that language, it does not provide that limitations defenses are extinguished on remand, and Bell identifies no authority for so holding. By contrast, Rule 94 expressly identifies limitations as an affirmative defense in a “pleading to a preceding pleading,” and Texas courts have thus held that a defendant may assert limitations in a later or amended pleading filed after a general appearance. Tex. R. Civ. P. 94; see Taylor v. Thompson, 4 S.W.3d 63, 64 (Tex. App.—Houston [1st Dist.] 1999, pet. denied); Griffin v. Hale, No. 11-09-00146-CV, 2010 WL 2990726 (Tex. App.—Eastland July 29, 2010, no pet.) (mem. op.). JD Auto was therefore entitled to assert the limitations defense in its answer on remand, and it did so here in its post-bill of review answer.

Because JD Auto conclusively established its limitations defense, and established that neither statutory nor equitable tolling applies, and the record shows that Bell failed to carry his burden to show diligent service, we sustain JD Auto's four issues.

V. CONCLUSION

We reverse the trial court's order denying JD Auto's motion for summary judgment and render a take-nothing judgment against Bell on his statutory employment claim.

DISSENTING OPINION

To prevail on its traditional motion for summary judgment, Appellant JD Auto Corp. had to “conclusively prove” each element of its statute-of-limitations affirmative defense, i.e., (1) when Appellee Michael H. Bell's cause of action accrued, and (2) that Bell brought suit later than the applicable number of years later. Draughon v. Johnson, 631 S.W.3d 81, 89 (Tex. 2021).

The only “evidence” JD Auto offered to conclusively prove the second element—that Bell brought suit outside the limitations period—is our prior opinion in JD Auto Corp. v. Bell, 697 S.W.3d 441 (Tex. App.—El Paso 2024, no pet.) (“JD Auto I”), reviewing whether JD Auto was entitled to summary judgment vacating the earlier default judgment against it.¹ However, rather than conclusively proving that Bell's suit was brought outside of limitations, JD Auto I expressly acknowledges the existence of some evidence that service was accomplished by posting at JD Auto's place of business within the limitations period. See 697 S.W.3d at 447, 458, 462 n.3. Crucially, in JD Auto I, the extrinsic evidence rule and Texas Rule of Civil Procedure 107(h) prevented us from considering that evidence in the context of a collateral attack on a default judgment. See id. at 458 and 462 n.3. However, neither of these rules apply to similarly restrict our review in this appeal of a traditional summary judgment on limitations after the parties were returned to their original positions following reversal of the default judgment. As a result, if anything, JD Auto I itself raises a fact issue as to whether JD Auto was timely served. See id. at 447 (citing evidence that “besides having posted the citation and petition inside a locked glass case on the first floor of the El Paso County Courthouse ․, [the process server] had also posted the documents ‘on the front, main doors to the front of [JD Auto's] show room building at 5800 Montana Avenue[.]’ ”); see also Green v. State, No. 02-21-00013-CV, 2023 WL 5617341, at *1 (Tex. App.—Fort Worth Aug. 31, 2023, no pet.) (mem. op.) (“The movant's own summary judgment evidence can create an issue of fact.”).

As explained below, my view departs from that of the majority opinion in relation to how it analyzes JD Auto I and the law-of-the-case doctrine, as well as with respect to whether we should assess the credibility of Bell's process server.

A. JD Auto I acknowledges the existence of evidence that JD Auto was served by posting at its business, and did not hold that no form of service was effected

To satisfy limitations, a plaintiff must both file a petition and serve it on the defendant. Tex. State Univ. v. Tanner, 689 S.W.3d 292, 300 (Tex. 2024) ([T]o ‘bring suit’ is a term of art reflecting the traditional requirements to satisfy a statute of limitations: filing the petition and achieving service of process. Timeliness for just one will not do The suit is not ‘brought,’ and the statute of limitations is not satisfied, until the plaintiff achieves both steps.”).

Here, while it is undisputed that Bell filed suit before limitations expired, JD Auto contends that “the record establishes that JD Auto was not served with process.” In support, JD Auto cites JD Auto I, arguing that in it, we “determined that Bell failed to obtain service on JD Auto, thus depriving [us] of jurisdiction.” However, our determination in this regard was a qualified one. Rather than determining that Bell categorically “failed to obtain service on JD Auto,” we focused solely on one service method—posting at the courthouse—and concluded that this particular method alone did not pass constitutional muster:

[B]ecause the record before the [trial] court on the request for substitute service was completely devoid of evidence that posting at the courthouse was reasonably calculated to give JD Auto notice of the suit, [this method of service] fail[ed] to meet due process requirements. See In re Miramontes, 648 S.W.3d [590,] 601 [(Tex. App. El Paso 2022, no pet.)] (“[I]f notice is not meaningful, constitutional due process requirements are not satisfied.”).

JD Auto I, 697 S.W.3d at 458.

In contrast, we did not address, much less determine, whether Bell may have successfully served JD Auto by a different method, namely posting at JD Auto's place of business. As the majority opinion in JD Auto I noted, service by posting at JD Auto's business was averred to have occurred in a 2021 affidavit by the process server included in the bill-of-review record, but this affidavit could not be considered in reviewing a collateral attack on a default judgment:

Bell ․ urges us to consider the process server's 2021 affidavit filed in the bill of review action. He claims the 2021 affidavit establishes the citation was also posted at JD Auto's business address, and thus, [JD Auto] received notice. This evidence, however, falls outside the permissible scope of our default judgment record. In a direct-attack bill of review, parties may introduce affidavits, depositions, testimony, and exhibits to explain what happened in the underlying suit, including an amended proof of service. However, upon a collateral attack for voidness, our review is more tightly limited to the record before the trial court at the time it rendered the challenged judgment.

Id. (quotation marks and citations omitted).²

In my JD Auto I concurrence, I similarly noted that evidence of posting at JD Auto's business existed but could not be considered in reviewing JD Auto's collateral attack on the default judgment:

Bell ․ urge[s] us to interpret “consideration of all the circumstances” in the “reasonably calculated” test to include extrinsic evidence presented at the bill-of-review proceeding, which Bell indicates included ․ “Bell's posting of notice at JD Auto headquarters in addition to the courthouse posting.” But we do not consider extrinsic evidence in the collateral attack, aside from exceptions involving public records not applicable here.

Id. at 462 n.3 (citation omitted).

In addition, of critical significance in the default judgment context, posting at JD Auto's business was not documented in a return or amended return of service, i.d., as required by Texas Rule of Civil Procedure 107(h) to support a default judgment. See Tex. R. Civ. P. 107(h) (“No default judgment shall be granted in any cause until proof of service as provided by this rule ․ or as ordered by the court in the event citation is executed by an alternative method under Rule 106, shall have been on file with the clerk of the court ten days[.]”); see also id. 107(b)(8) (requiring return to describe “the manner of delivery of service”).

Accordingly, because posting solely at the courthouse was constitutionally infirm, and evidence of posting at JD Auto's business was required to be disregarded under the extrinsic evidence rule and Rule 107(h), the limited record considered in JD Auto I conclusively established that JD Auto was entitled to summary judgment vacating the earlier default judgment. 697 S.W.3d at 459, 461.

Here, because the vacated default judgment is no longer in play, neither is the extrinsic evidence rule or Rule 107(h). See Mitchell v. MAP Res., Inc., 649 S.W.3d 180, 192 (Tex. 2022) (extrinsic evidence cannot be considered in a collateral attack on a default judgment); Tex. R. Civ. P. 107(h) (“No default judgment shall be granted in any cause until ․”) (emphasis added). As a result, JD Auto I's holding that the default judgment record “established [that JD Auto] was never personally served with process,” 697 S.W.3d at 459, is of no import here. That is, in this appeal from a summary judgment on limitations, we are no longer constrained to consider only the default judgment record. Absent that constraint, JD Auto I's express acknowledgement of the existence of evidence that timely service was effected by posting at JD Auto's place of business, see id. at 447, 458, 462 n.3, now looms large. Simply put, having acknowledged that service may have been effected in this manner, JD Auto I cannot serve as conclusive proof that no service was effected.

Because JD Auto I is the only evidence JD Auto offered to conclusively prove the second element of its limitations defense—that Bell brought suit outside the limitations period—JD Auto did not meet its initial traditional summary judgment burden with respect to this element. See Wal-Mart Stores, Inc. v. Xerox State & Local Sols., Inc., 663 S.W.3d 569, 583 (Tex. 2023) (“When a defendant moves for traditional summary judgment ․ it must demonstrate that ‘there is no genuine issue as to any material fact’ and that it is ‘entitled to judgment as a matter of law.’ ”); see also Green, 2023 WL 5617341, at *1 (“The movant's own summary judgment evidence can create an issue of fact.”). The burden never shifted to Bell. Wal-Mart Stores, Inc., 663 S.W.3d 569 at 583 (“[T]he nonmovant has no burden unless the movant conclusively establishes its cause of action or defense.”) (citing Tex. R. Civ. P. 166a(c)).³ Accordingly, I would affirm the trial court's denial of JD Auto's motion for summary judgment.

B. The law-of-the-case doctrine does not apply

The majority relies on the law-of-the case doctrine ⁴ to “decline to reconsider our prior determination that JD Auto was not properly served.” However, this doctrine “does not necessarily apply when either the issues or the facts presented at successive appeals are not substantially the same as those involved on the first trial.” Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986). Further, the doctrine may not apply when two different review standards are involved. City of Fort Worth v. Burke, 700 S.W.3d 819, 830 (Tex. App.—Dallas 2023, pet. denied).

In the majority's view, the law-of-the-case doctrine applies here because the prior and present appeals both involve “the ordinary summary judgment standard” and “the same record”:

Applying the ordinary summary-judgment standard [in the prior appeal], we determined there was a complete absence of service for purposes of a collateral attack [on the default judgment] [i.e., for purposes of personal jurisdiction]. We see no reason why the same record would not likewise establish the absence of proper service [here] for purposes of limitations.

While both appeals do stem from summary judgments, only in the present appeal does an unencumbered “ordinary summary judgment standard [of review]” apply. In the prior appeal, the issue was whether posting at the courthouse alone was constitutionally sufficient to support a no-answer default judgment against JD Auto and thus our review was encumbered by the extrinsic evidence rule and Rule 107(h). JD Auto I, 697 S.W.3d at 458. In contrast, the present appeal addresses the issue of whether JD Auto was timely served before limitations expired in relation to an order denying summary judgment on the merits of a limitations affirmative defense. In this context, our review is unencumbered by the no-extrinsic-evidence rule. Compare Mitchell v. MAP Res., Inc., 649 S.W.3d 180, 190 (Tex. 2022) (“As a general rule, extrinsic evidence cannot be considered in a collateral attack to set aside a final judgment[.]”) and Tex. R. Civ. P. 166a (general summary judgment practice includes no extrinsic evidence rule). Nor does Texas Rule of Civil Procedure 107(h) apply to encumber the review presently before us, since no default judgment is in play. See Tex. R. Civ. P. 107(h) (“[n]o default judgment shall be granted in any cause until proof of service as provided by,” as relevant here, Rule 107 for return of service, “shall have been on file with the clerk of the court” for a specified period of time).⁵ As explained above, because these constraints apply only to review of an attack on a default judgment, and the default judgment against JD Auto has already been vacated, we are no longer bound to consider only the record before the trial court at the time it granted the default judgment. The relevant record is what the parties placed before the trial court in this summary judgment proceeding—JD Auto I and Bell's petition.

In considering “whether the facts and record before us are substantially the same as those in JD Auto I,” the majority observes that “[t]he record we considered in JD Auto I included a return of service certifying that the citation was served only by posting in the courthouse.”⁶ In homing in on the return, the majority opinion represents that “[s]ister courts facing the same issue in cases in the same posture and with similar records have held that a defective return by itself conclusively establishes lack of service for limitations purposes,” for which it cites in Mathewson v. Anglia Homes, L.P., No. 01-23-00874-CV, 2025 WL 2471799, at *7 (Tex. App.—Houston [1st Dist.] Aug. 28, 2025, no pet. h.) (mem. op.), Ramirez v. Consol. HGM Corp., 124 S.W.3d 914, 921 (Tex. App.—Amarillo 2004, no pet.); Keeton v. Carrasco, 53 S.W.3d 13, 18–19 (Tex. App.—San Antonio 2001, pet. denied); and Salazar v. Pena, No. 08-23-00298-CV, 2024 WL 4512349, at *1 (Tex. App.—El Paso Oct. 17, 2024, no pet.). First, none of these cases support that representation.⁷

The record here is different from the JD Auto I record. The service return in the JD Auto I record is not included in the summary judgment record before us in the present appeal, just like the prior record did not include the process server's affidavit averring that service by posting was effected at JD Auto's place of business in the prior appeal. 697 S.W.3d at 458.

Thus, contrary to what the majority opinion suggests, because the prior and present appeals involve different issues, different review standards, and different records, the law-of-the-case doctrine is inapplicable. Stretching the language in which JD Auto I's holding was couched to encompass service by posting at JD Auto's business not only fails to take into account the different issues, review standards, and records involved in the prior and present appeals, but also results in JD Auto I essentially contradicting itself, i.e., plainly acknowledging in one breath that service may have been effected and then in the next breath holding it was not.

C. Why it makes sense that JD Auto I and the present appeal have different standards, different records, and different requirements

There is a great difference between an appeal seeking to reverse a default judgment (like JD Auto I) and an appeal seeking a summary judgment based on an affirmative defense (like the present appeal). In the former, the defendant seeks to avoid being deprived of a trial on the merits of the case. In the latter, the defendant instead seeks to deprive the plaintiff of such a trial. Texas law is wary of both default judgments and summary judgments because they bypass a full trial on the merits. See Tabakman v. Tabakman, 728 S.W.3d 703, 707 (Tex. 2025) (per curiam) (“Default judgments are ‘greatly disfavor[ed]’ under Texas law, consistent with the strong policy preference for adjudicating cases on the merits.”) (citing In re Lakeside Resort JV, LLC, 689 S.W.3d 916, 921, 925 (Tex. 2024)); see also Turbo Restaurants, LLC v. Reid's Refrigeration Inc., 657 S.W.3d 490, 494 (Tex. App.—El Paso 2022, no pet.) (“[S]trict compliance with service requirements in the default context is ․ intended to safeguard due process, allowing the defendant an opportunity to appear and defend the action on the merits.”); Am. Garment Properties, Inc. v. CB Richard Ellis-El Paso, L.L.C., 155 S.W.3d 431, 435 (Tex. App.—El Paso 2004, no pet.) (“The purpose of summary judgment is the elimination of patently unmeritorious claims or untenable defenses; it is not intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact.”) (citing Gulbenkian v. Penn, 252 S.W.2d 929, 931 (1952)); Garcia v. John Hancock Variable Life Ins. Co., 859 S.W.2d 427, 435 (Tex. App.—San Antonio 1993, writ denied) (“The law in Texas is well settled that summary judgment is a harsh remedy which must be strictly construed ․ This is because a summary proceeding is not a conventional trial, but an exception to the usual and traditional formal procedure whereby witnesses are heard in open court and documentary proof is offered and received into evidence. A summary judgment should not amount to a trial by deposition or affidavit, or be resolved by weighing the relative strength of the conflicting facts and inferences.”) (citations and quotation marks omitted).

Given that Texas law prefers trials on the merits, imposing constraints like the extrinsic evidence rule and Rule 107(h) makes sense in the default judgment context because such constraints protect the party who may otherwise be deprived of a trial on the merits. Conversely, imposing such constraints outside of the default judgment context, as the majority opinion effectively does here, has the opposite effect, i.e., makes it easier to deprive a party of a trial on the merits.

D. Credibility determinations are for the jury

Finally, the majority opinion states that “[t]he only potential evidence of timely service that Bell cites in his brief is the 2021 process server's affidavit.” In the affidavit, the server averred that citation was posted “as requested by [Bell's counsel]” on the “front, main doors of [JD Auto's] show room building,” and that he “recall[ed] specifically” posting it “on the right double-door, about 5 and 1/2 feet up from the ground.” In the majority opinion's view, these averments have no evidentiary value, i.e., “[r]ather than supplying proof of service by posting at [JD Auto's] headquarters, the 2021 affidavit and testimony establish only that reliable evidence of such posting ․ no longer exists.”

Because JD Auto did not meet its initial summary judgment burden, Bell was not required to present evidence to raise a fact issue. But if the process server's 2021 affidavit is relevant for any reason, I do not believe it is proper for us to determine whether it is reliable, especially by raising evidence outside of what was presented to the trial court in the summary judgment proceeding. It is up to the jury “to resolve conflicts and inconsistencies in the testimony of any one witness as well as in the testimony of different witnesses.” City of Keller v. Wilson, 168 S.W.3d 802, 819 n.90 (Tex. 2005) (citing Ford v. Panhandle & Santa Fe Ry. Co., 252 S.W.2d 561, 563 (1952); see also id. at 819 (“Jurors are the sole judges of the credibility of the witnesses and the weight to give their testimony.”). Accordingly, I would leave it to the jury to resolve any inconsistencies in the process server's testimony, evaluate his credibility, and determine the import to be given his various statements.

For all the foregoing reasons, I respectfully dissent.⁸

FOOTNOTES

1.   Bell's suit was docketed as: Michael H. Bell v. J.D. Auto Corporation, 384th Judicial District Court, El Paso County, Texas, trial cause number 2015DCV0042.

2.   No efforts in effectuating service were claimed during the period of mid-February through late-November 2015.

3.   On December 2, 2015, the process server picked up the citation from the clerk's office, located on the first floor of the courthouse, and posted it in a locked glass cabinet on the same floor on the same day. The process server later testified he also posted at JD Auto's headquarters that day, but his return omitted the headquarters' posting, and he could not explain the omission.

4.   On August 12, 2016, the El Paso County District Clerk mailed a Rule 306a official notice of judgment to the address of JD Auto's headquarters. JD Auto denies receiving the notice.

5.   The motion argued that JD Auto I's holding that Bell violated due process rights by obtaining a default judgment based on ineffective service by posting, coupled with factual admissions from his petition, necessarily established his unlawful retaliation claim was time-barred for lack of diligent service. The trial court's phrasing of the controlling question, referring to “jurisdiction over Michael H. Bell's claims,” reflects the parties' framing of the limitations issue on remand: JD Auto argued in its motion that Bell's claims were time-barred under the law of the case, and Bell responded that our judgment “mooted” the limitations issue. Both sides contended that our opinion left nothing for the trial court to resolve. At the hearing on JD Auto's motion, the trial court summarized the issue as whether it was required to “ministerially dismiss[ ] the case for lack of jurisdiction.”

6.   In recent cases, the Supreme Court has stated that it is “increasingly skeptical of default judgments, regardless of the precise legal issue under consideration or the procedural posture in which the case arises.” Huffman Asset Mgmt., LLC v. Colter, 740 S.W.3d 476, 785 (Tex. 2026); see also Shamrock Enters., LLC v. Top Notch Movers, 728 S.W.3d 693, 702–03 (Tex. 2026) (Blacklock, C.J., concurring) (stating, in a concurrence signed by four justices, that the Court should make explicit the principle, already implicit in its decisions, that default judgments obtained without reasonable efforts at actual notice are impermissible “[i]rrespective of any statutes or procedural rules about service of process”).

7.   The process server was asked six times whether he recognized the affidavit. He replied: “Could be․ I just—I said it could be․ I can't give you a better answer․ Like I said, it could be․ It could be That's the best answer you're going to have.” When asked who prepared the affidavit, he answered, “Had to have been me․ Could be․ I don't—I haven't even seen this in, what, it's been how many years? I don't remember.” He finally testified that “the affidavit that is here was worked on with myself and Mr. Chavez. Mr. Chavez primarily typed this issue up, I didn't type it out, I gave him input ․ on the service itself.”

8.   Asked whether he prepared the 2015 affidavit, he testified, “No. Not this particular document, no, sir.” Asked whether he prepared any portion of it, he answered, “I believe I did an affidavit for this. I submitted it and it was adjusted by the law firm itself․ [A]lso some of the wording was different.”

9.   He was “not sure about the dates” of the service attempts, could not say what time of day he posted at the headquarters, and, when asked to place the courthouse and dealership postings in sequence, gave one order and immediately reversed it.

10.   During his deposition, the process server accessed the internet without permission and then corrected himself. Asked whether the affidavit's reference to a double door was accurate, he initially confirmed it, stating there were double doors at the front of the dealership. When pressed on whether he was viewing photographs of the dealership, he acknowledged he had just looked the property up on the internet. Directed back to the affidavit itself, he conceded, “When I identify the double doors, it's mistaken.”

11.   The only suggestion otherwise in his brief is a statement that the evidence shows service at the courthouse “conclusively occurred before [limitations expired], and ․ some evidence to support service also occurring by posting at the JD Auto headquarters,” which he argues would render questions about diligence moot.

12.   If a bill of review plaintiff establishes grounds to set aside a default judgment for lack of service, the parties “revert to their original status as plaintiff and defendant with the burden on the original plaintiff to prove his or her case.” Caldwell v. Barnes, 154 S.W.3d 93, 97–98 (Tex. 2004). Here, applying Caldwell, our prior opinion reversed the final judgment rendered in the bill of review after concluding that JD Auto had established lack of service as grounds to set aside the default judgment, and we “return[ed] the parties to their original status as plaintiff and defendant.” J.D. Auto Corp. v. Bell, 697 S.W.3d 441, 461 (Tex. App.—El Paso 2024, no pet.).

13.   A sister court held that the tolling provision would not apply in the case of a suit dismissed for lack of service. Allen v. Intercapital Lodge Ltd. P'ship, 66 S.W.3d 351, 354 n.4 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). The court explained: “if, as [the plaintiff] contends, limitations could be tolled by the mere filing of suit without service, limitations could be tolled indefinitely by a plaintiff without a defendant's knowledge. We are unaware of any authority or rationale for a tolling provision operating in that manner.” Id.

14.   The record shows the order for substitute service signed by the trial judge was taken verbatim from Bell's motion for substitute service.

15.   The period before expiration of limitations is treated differently because plaintiffs do not have a duty to file suit as soon as possible. Sharp v. Kroger Tex. L.P., 500 S.W.3d 117, 121–22 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (Christopher, J., concurring). It would be incongruous to fault a plaintiff for filing early and not acting more quickly within the limitations period, when the plaintiff could have simply waited until the last day to file. Id. Here, we previously addressed whether Bell showed reasonable diligence for several months within the limitations period and prior to obtaining an order for substitute service. JD Auto I, 697 S.W.3d at 457–59; cf. id. at 461 (Soto, J., concurring). We need not revisit that issue, because the diligence period extends only from the time limitations expired to the time of service of the writ of execution. [Supra p14] Texas State Univ. v. Tanner, 689 S.W.3d 292, 296 (Tex. 2024).

1.   JD Auto's motion for summary judgment cited our substitute prior opinion, but attached our withdrawn opinion as an exhibit. No difference between the two opinions appears to be at issue.

2.   JD Auto I explains the 2021 affidavit's surrounding circumstances and contents as follows:[As part of] Bell's summary judgment evidence, two affidavits of Holy-Shirley [Bell's process server] were included: (1) his initial affidavit of March 2015, which was attached to the motion for substitute service in the underlying suit; and (2) a second affidavit of December 3, 2021, which supported the motion for summary judgment in the bill of review action. The 2021 affidavit differed from the 2015 affidavit to the extent the process server averred in the later version that, besides having posted the citation and petition inside a locked glass case on the first floor of the El Paso County Courthouse (as stated in the citation return), he had also posted the documents “on the front, main doors to the front of [JD Auto's] show room building at 5800 Montana Avenue[.]”697 S.W.3d at 447.

3.   While the majority opinion finds it significant that Bell “did not point out the process server's 2021 affidavit in his summary judgment response,” I do not. Because JD Auto did not meet its initial summary judgment burden, Bell did not need to respond to prevail. See Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999) (“The trial court may not grant summary judgment by default because the nonmovant did not respond to the summary judgment motion when the movant's summary judgment proof is legally insufficient.”).

4.   Under the law-of-the-case doctrine, “a court of appeals is ordinarily bound by its initial decision if there is a subsequent appeal in the same case.” Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003).

5.   While I take no issue with the authorities cited by the majority concerning the role a return may play in reviewing an attack on a default judgment, see, e.g., Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (“The recitations in the return of service carry so much weight that they cannot be rebutted by the uncorroborated proof of the moving party.”); Mitchell v. MAP Res., Inc., 649 S.W.3d 180, 192 n.12 (Tex. 2022) (“[I]t is imperative and essential that the record affirmatively show a strict compliance with the provided mode of service.”), these authorities do not bear on the present appeal, as it does not involve an attack on a default judgment.

6.   The majority opinion later clarifies that the return only certified one method of service, i.e., stated that posting at the courthouse occurred, but said nothing one way or the other about whether posting at JD Auto's business occurred. The body of the return reads in its entirety as follows:Came to hand on the 2nd day of December, A.D., 2015, at 14:00 o'clock p.m., and I executed the within Citation, by having the same posted on the 2nd day of December, 2015, in the County Courthouse door in El Paso County, Texas.I further certify that said Citation was posed in accordance with the law.

7.   Mathewson, Ramirez, and Keeton each held that lack of a green card signed by the addressee invalidated service by mail, rather than that a defective return conclusively established lack of service. See Mathewson v. Anglia Homes, L.P., No. 01-23-00874-CV, 2025 WL 2471799, at *8 (Tex. App.—Houston [1st Dist.] Aug. 28, 2025, no pet. h.) (mem. op.) (“[The] summary judgment evidence contained the return receipt, but it is unsigned and therefore defective.”); Ramirez v. Consol. HGM Corp., 124 S.W.3d 914, 919 (Tex. App.—Amarillo 2004, no pet.) (noting that under relevant precedent, “service of citation is not perfected by certified mail when someone other than the actual addressee signs for the document”); Keeton v. Carrasco, 53 S.W.3d 13, 19 (Tex. App.—San Antonio 2001, pet. denied) (“A return of a citation served by registered or certified mail must contain the return receipt with the addressee's signature.”; “In this case, the return receipt was signed by Laura J. Garcia. Laura J. Garcia was not the addressee; therefore, the service of process was defective.”). Finally, in Salazar v. Pena, we held that an affidavit averring that service was accomplished was of no effect because it was conclusory, not because a defective return conclusively established lack of service. See No. 08-23-00298-CV, 2024 WL 4512349, at *8 (Tex. App.—El Paso Oct. 17, 2024, no pet.).Additionally, in rendering summary judgment for JD Auto, the majority opinion relies in part on Texas Rule of Civil Procedure 118, which provides that the trial court may allow a return of service to be amended unless material prejudice will result:At any time in its discretion and upon such notice and on such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.Tex. R. Civ. P. 118.Here, neither side raised any issue relating to Rule 118 in the trial court or on appeal. And as explained above, Rule 107(h), which requires that the method of service be reflected in a filed return as a predicate for a default judgment, does not apply here. Nevertheless, the majority opinion considers whether to remand for Bell to amend the return of service, and concludes that to do so would “needlessly prolong this matter and result in material prejudice to the substantial rights of JD Auto.” Because this issue was not raised by either party, I would not rule on it. See Estate of Cougot, No. 08-22-00007-CV, 2022 WL 2866012, at *5 (Tex. App.—El Paso July 21, 2022, pet. denied) (“When reviewing a civil matter, an appellate court has no discretion to consider an issue not raised in the appellant's brief, even if the ends of justice so require.”) (citing Martinez v. El Paso Cnty., 218 S.W.3d 841, 844 (Tex. App.—El Paso 2007, pet. struck)); Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.) (“An appellate court has no duty—or even right—to perform an independent review of the record and applicable law to determine whether there was error. Were we to do so ․ we would be abandoning our role as neutral adjudicators[.]”) (citation omitted).

8.   In addition, in my view, affirmance of the trial court's denial of JD Auto's motion for summary judgment is independently compelled by the operation of Texas Rule of Civil Procedure 123. Under this rule, our reversal of the default judgment against JD Auto based on defective service resulted in JD Auto being deemed to have entered a general appearance, thereby curing all defects in the method of serving it. See Tex. R. Civ. P. 123 (“Where the judgment is reversed ․ because of defective service ․ the defendant shall be presumed to have entered his appearance[.]”); Guardianship of Fairley, 650 S.W.3d 372, 386 (Tex. 2022) (“A party's appearance ․ cures any defect in the method of serving that party.”). Consequently, because the day on which posting was averred to have occurred (December 2, 2015) preceded the day on which limitations expired (December 6, 2015, as calculated by the majority), the record, rather than conclusively proving that timely service was not effected, shows the opposite.The majority opinion takes a different view, holding that “[b]y its plain terms,” Rule 123 “addresses the issuance of new citation following a reversal,” and “does not provide that limitations defenses are extinguished on remand[.]”While I agree that Rule 123 does not automatically extinguish limitations defenses on remand after reversal of a default judgment, it does foreclose such a defense where, as here, the defense relies on a defect in service (i.e., where process was served, albeit defectively, before limitations expired). This is because, as explained above, service defects are cured under Rule 123 as a result of the defendant being deemed to have appeared. Conversely, where a limitations defense asserts that service was untimely or was never attempted, as opposed to being defective, Rule 123 will not foreclose the defense since there is no defect in the method of service to cure.The two cases cited by the majority opinion for the proposition that a limitations defense may be asserted by a defendant after making a general appearance are different, in that they involved a failure to timely serve the defendant rather than a defect in the method of service. See Taylor v. Thompson, 4 S.W.3d 63, 65–66 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (holding that “[b]ecause [the plaintiff] failed to serve citations on the [defendants] within the period of limitations, she had the burden to prove that she used due diligence in procuring the subsequent issuance and service of citation upon [them],” which the plaintiff failed to do since she “offered no valid excuse for the delay in service between filing suit and obtaining service[.]”); Griffin v. Hale, No. 11-09-00146-CV, 2010 WL 2990726, at *1 (Tex. App.—Eastland July 29, 2010, no pet.) (mem. op.) (holding that “[w]hen a plaintiff files his petition within the limitations period but does not serve the defendant until after the period expires, the plaintiff must exercise diligence in serving citation to interrupt the running of limitations,” which the plaintiff failed to do since “the clerk issued a citation at the time of the filing, almost three years passed and [the defendant] was never served,” and “[the plaintiff] offer[ed] no explanation for the delay”).JD Auto's approach to avoiding the effect of Rule 123 is equally unavailing. First, JD Auto contends that its appearance under Rule 123 was “a limited one with a limited purpose,” i.e., it expired at the end of the 2024 term of court and thus was of no effect at the time JD Auto filed its motion for summary judgment in 2025. However, neither the plain language of Rule 123 nor Atchison, T & S.F. Ry. Co. v. Adams, 14 S.W. 1015 (Tex. Civ. App. 1889, no writ)—JD Auto's sole authority for this novel argument—supports such a construction of Rule 123. While Rule 123 provides that after a judgment is reversed because of defective service, “the defendant shall be presumed to have entered his appearance to the term of the court at which the mandate shall be filed,” the rule does not provide that the defendant's appearance expires at the end of such term. See Tex. R. Civ. P. 123. And while Atchison held that a venue challenge should have been permitted following reversal of a default judgment, it neither suggested that the defendant's appearance expired at any point, nor contained any discussion of Rule 123's predecessor, which contained the same language as Rule 123. See 14 S.W. at 1015.Second, JD Auto contends that Rule 123 applies only to non-resident defendants. However, Boyd v. Kobierowski—JD Auto's sole authority for this proposition—merely applies Rule 123 to a non-resident defendant, and does not hold that the rule applies only to non-resident defendants. 283 S.W.3d 19, 22 (Tex. App.—San Antonio 2009, no pet.). Numerous other cases clarify that Rule 123's application is not confined to non-residents. See, e.g., Infra-Pak (Dallas), Inc. v. Narmour, 852 S.W.2d 565, 567 (Tex. App.—Dallas 1992, no writ) (applying Rule 123 to resident defendant); Cates v. Pon, 663 S.W.2d 99, 102 (Tex. App.—Houston [14th Dist.] 1983, writ ref'd n.r.e.) (same); Gianelle v. Morgan, 514 S.W.2d 133, 134 (Tex. App.—Texarkana 1974, no writ) (same); Neal v. Roberts, 445 S.W.2d 58, 61 (Tex. App.—Houston [1st Dist.] 1969, no writ) (same); see also HB & WM, Inc. v. Smith, 802 S.W.2d 279, 282 (Tex. App.—San Antonio 1990, no writ) (applying Rule 123 without mentioning defendant's state of residence); H. L. McRae Co. v. Hooker Const. Co., 579 S.W.2d 62, 66 (Tex. App.—Austin 1979, no writ) (same).

GINA M. PALAFOX, Justice