Summary
holding fact issue raised where service effected on seventh attempt in little over three month period
Summary of this case from Vasquez v. AguirreOpinion
No. 04-06-00535-CV
Delivered and Filed: November 7, 2007.
Appeal from the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2005-CI-01960, Honorable Janet P. Littlejohn, Judge Presiding.
REVERSED AND REMANDED.
Sitting: ALMA L. LÓPEZ, Chief Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.
MEMORANDUM OPINION
Carrisa and Ralph Bolado appeal the trial court's summary judgment dismissing their suit against Nelda Speller. The sole issue is whether Speller conclusively established the Bolados failed to use due diligence to effect service on Speller after the applicable statute of limitations had expired. Because the summary judgment evidence raises a material fact issue concerning the diligence of the Bolados' efforts to serve Speller, we reverse and remand to the trial court for further proceedings.
Factual and Procedural Background
The Bolados filed a personal injury suit against Speller on February 3, 2005, alleging Speller's negligence caused a February 3, 2003 motor vehicle accident and served Speller on May 10, 2005. Speller pled the affirmative defense of the statute of limitations and filed a motion for summary judgment on the ground the Bolados failed to act diligently to serve her after the two-year statute of limitations had run.
In support of the motion, Speller attached a copy of the Bolados' request for issuance of citation and the process server's return of citation. The request, filed by mail on February 3, 2005, asked that citation be issued and that Speller be served at an address on Sandy Point Street in San Antonio, Texas. The officer's return, signed by Mike Chavarria, indicates Chavarria received the citation on February 11, 2005, and served Speller at 6:30 p.m. on May 10, 2005, by delivering it to her at the Sandy Point address.
In response to the motion for summary judgment, the Bolados filed the affidavits of Mike Chavarria and their attorney, Hugo Xavier de los Santos. In his affidavit, de los Santos stated he mailed a request for issuance of citation together with the petition to the district clerk on February 3, 2005. De los Santos learned on February 10, 2005, that the citation was ready and on the same day engaged Mike Chavarria, a licensed process server who de los Santos had worked with previously, to serve the citation on Speller.
De los Santos testified he or someone on his staff spoke to Chavarria eleven or more times between February 11 and May 10 regarding Chavarria's efforts to serve Speller. In those conversations, they learned Chavarria had confirmed the Sandy Point address was correct; Chavarria believed he could serve Speller at that address; and Chavarria made six attempts to serve Speller before he was successful on May 10. De los Santos stated Chavarria told him "that he thought if he were given time, he'd catch her at home and be able to serve her. He said it was just a matter of being there at the right time on the right day." De los Santos thought "this was a reasonable course of action" and that Chavarria "was continuing to make efforts to personally serve [Speller] during this time." Finally, de los Santos stated his plan was to obtain an order for substitute service if Speller were not served by the end of May.
Chavarria testified he is a licensed and authorized process server in Bexar County. He was contacted on February 10 by de los Santos, who asked if Chavarria could immediately attempt service of a citation on Speller. Chavarria agreed and picked up the citation from the district clerk's office on February 11. Chavarria's testimony as to his efforts to serve Speller was:
Between February 12, 2005, and May 10, 2005, I made seven (7) attempts to personally serve [Speller] by going to her home located at Sandy Point. . . . On my first six (6) visits to Ms. Speller's home . . . she was not in. . . . . During this interim . . ., I confirmed by research that this was a good address for Ms. Speller, and each time I went by, it did appear someone was residing at that address. I just did not seem to be arriving at a time that she was there. That is why I did not suggest substituted service and continued to attempt personal service, believing in good faith, based on my training, knowledge and prior experience as a process server, that I would find her. On my seventh (7th) attempt which I made on May 10, 2005, I was finally able to locate and did in fact find Ms. Speller at the Sandy Point address . . . In securing service on Ms. Speller, I worked diligently and did what I could within reason. It is my opinion that the six (6) visits to Ms. Speller's home at different hours of the day facilitated my locating her and serving her.
According to Chavarria, between February 12 and May 10, he received at least two calls a week from someone in de los Santos's office asking about the status of service on Speller; he also talked to de los Santos's staff once or twice a week when he was at the lawyer's office on other business. Chavarria testified he would tell them "of the attempts he was making to locate and serve Ms. Speller, and the attorney's office would ask [him] to do what [he] reasonably could to get her served promptly."
Speller did not file a reply. After a hearing, the trial court granted Speller's motion for summary judgment, and the Bolados filed this appeal.
Standard of Review and Applicable Law
"We review the trial court's summary judgment de novo." Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In deciding the issues, "we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Id.
A suit for personal injuries must be filed within two years from the date the cause of action accrued. See Tex. Civ. Prac. Rem. Code Ann. § 16.003(a) (Vernon Supp. 2006). "But a timely filed suit will not interrupt the running of limitations unless the plaintiff exercises due diligence in the issuance and service of citation." Proulx v. Wells, No. 06-0258, 2007 WL 2457758, at *1 (Tex. Aug. 31, 2007). "If service is diligently effected after limitations has expired, the date of service will relate back to the date of filing." Id.
When a defendant has pled a statute of limitations defense and moves for summary judgment on the ground the suit was not served within the applicable limitations period, the movant's initial burden is to show that service was effected after limitations expired. Id. at *2. The burden then shifts to the plaintiff to present evidence regarding the efforts made to serve the defendant and "to explain every lapse in effort or period of delay." Id.; Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990). If the plaintiff's explanation is legally insufficient to raise the diligence issue or if the explanation demonstrates a lack of due diligence as a matter of law, such as when there are one or more lapses between service efforts that are unexplained or patently unreasonable, the defendant bears no further burden and summary judgment should be granted. Proulx, 2007 WL 2457758, at *2. However, "if the plaintiff's explanation for the delay raises a material fact issue concerning the diligence of service efforts, the burden shifts back to the defendant to conclusively show why, as a matter of law, the explanation is insufficient." Id. at *3.
In assessing the evidence of diligence we ask "whether the plaintiff acted as an ordinarily prudent person would have acted under the same or similar circumstances and was diligent up until the time the defendant was served." Id. We examine "the time it took to secure citation, service, or both, and the type of effort or lack of effort the plaintiff expended in procuring service." Id.
Discussion
Speller's motion for summary judgment established the Bolados' cause of action accrued February 3, 2003, and limitations expired two years later, on February 3, 2005. See Garza v. Williams Bros. Constr. Co., 879 S.W.2d 290, 292 (Tex.App.-Houston [14th Dist.] 1994, no writ) (setting date of accident as starting point for limitations period); Tex. Civ. Prac. Rem. Code Ann. § 16.003(a) (providing person must bring suit for personal injury no later than two years after day cause of action accrues). The Bolados filed suit on the last day of the limitations period and served Speller on May 10, 2005, ninety-six days after limitations expired. Speller's motion for summary judgment thus established she was not served within the two-year limitations period. The burden therefore shifted to the Bolados to raise a material fact issue as to whether or not they exercised due diligence in attempting to serve Speller. See id. at *2.
The Bolados argue their affidavits establish they exercised due diligence in serving Speller, or at least raise a material fact question on the issue. Specifically, they point to the evidence that they requested issuance of citation when the petition was filed; citation was issued and a process server hired within one week of filing the suit; between February 12 and May 10, Chavarria made six attempts, at different times of the day, to serve Speller; during this time Chavarria did research to ascertain the address was correct; the Bolados' attorney's office frequently contacted Chavarria to find out the status of service; Chavarria reasonably believed he would eventually find Speller at home; and de los Santos believed in good faith that it was reasonable to rely on Chavarria and intended to obtain an order for alternative service if she was not served by the end of May.
Speller argues the Bolados did not meet their burden in responding to the summary judgment because the Bolados' affidavits do not explain the delay from February 12, when Chavarria received the citation, until May 10. Specifically, she argues the affidavits are insufficient because "[w]e don't know whether the six attempts were on six separate days or multiple attempts were made on a single day." We disagree. In his affidavit, Chavarria stated "[b]etween February 12, 2005, and May 10, 2005, [he] made seven (7) attempts to personally serve . . . Speller by going to her home." During this time period he had "status conferences" at de los Santos's office once or twice a week, and "informed the attorney's office of the attempts [he] was making to locate and serve Ms. Speller." Indulging all reasonable inferences in favor of the Bolados, as we must in the summary judgment context, it is fair to infer that Chavarria's attempts at service were made at various times throughout the three-month period, and the affidavits do "explain the delay." Further, "that some periods of time elapsed between service efforts does not conclusively demonstrate that [the Bolados were] not exercising diligence." See Proulx, 2007 WL 2457758, at *3.
Speller also argues the Bolados' evidence affirmatively establishes lack of due diligence as a matter of law. She contends the attorney's periodic discussions with Chavarria is no evidence of diligence and, citing Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587 (Tex.App.-Corpus Christi 1994, no writ), contends that "[a] party may not abdicate responsibility for timely service to a process server." We do not agree the evidence establishes the Bolados abdicated responsibility for service to Chavarria. In Gonzalez, the plaintiffs' attorney requested a process server obtain the citations and serve defendants. Gonzalez, 884 S.W.2d at 590. Thereafter, counsel inquired about the status of service several times, and the process server misrepresented that "the matter was taken care of." Id. Counsel did nothing to ascertain the truth of this statement, even when fourteen months had passed since the petition was filed and no answer had been filed. Id. The court held the plaintiff's mere reliance on the process server under these circumstances did not constitute due diligence as a matter of law. Id. In contrast, the Bolados' affidavits establish they did not "merely" rely on Chavarria. They persistently inquired as to what Chavarria was doing to serve Speller, learned what efforts had been made, and decided to acquiesce, at least until the end of May, in Chavarria's recommendation that he continue to attempt personal service by trying to find Speller at different times of day. We cannot say this decision, based on Chavarria's experience as a process server and de los Santos's previous experience with Chavarria, was unreasonable as a matter of law.
Finally, Speller argues de los Santos's plan to wait until the end of May to obtain an order authorizing substitute service is "irrefutable evidence of a total lack of diligence." Citing Carter v. MacFayden, 93 S.W.3d 307, 314-15 (Tex.App.-Houston [14th Dist.] 2002, pet. denied), and Doue v. City of Texarkana, 786 S.W.2d 474 (Tex.App.-Texarkana 1990, writ denied), Speller argues diligence is not shown when easily available and more effective alternatives are ignored. Neither of these cases control. In Doue, the court held the taxing authorities' failure to use common sources of information, including its own records, to ascertain the defendant's address, established lack of diligence as a matter of law, and therefore citation by publication was not justified. 786 S.W.2d at 477. In Carter, the constable made three unsuccessful attempts at personal service and then advised plaintiff's counsel to seek substituted service. 93 S.W.3d at 313, 315. Nevertheless, counsel hired another process server, attempted personal service for two more months, and then did nothing for another three months before moving for substituted service. Id. Here, on the other hand, there were no lengthy periods of inactivity and Chavarria did not recommend substituted service. Rather, he recommended he be allowed to continue to attempt personal service by going to Speller's house at different times of the day. De los Santos agreed to allow Chavarria to continue his efforts for a limited period of time, at which time he would seek substituted service. However, because Speller was served, this proved unnecessary.
Because the Bolados offered proof of their diligence and an explanation of the delay in serving Speller, the burden shifted to Speller to show why the explanation was insufficient as a matter of law. See Proulx, 2007 WL 2457758, at *2. Speller did not do so. We conclude the summary judgment evidence raised a genuine issue of material fact regarding whether or not the Bolados acted as an ordinarily prudent person would have acted under the same or similar circumstances and were diligent until the time Speller was served. Accordingly, we reverse the judgment of the trial court and remand the cause for further proceedings.