Opinion
06-21-00091-CV
07-28-2022
KIM STOVALL, Appellant v. KRISTEN KINKAID, Appellee
Date Submitted: May 12, 2022
On Appeal from the 125th District Court Harris County, Texas Trial Court No. 2017-78964
Before Morriss, C.J., Stevens and van Cleef, JJ.
MEMORANDUM OPINION
SCOTT E. STEVENS JUSTICE
On November 30, 2015, Kristen Kinkaid was rear-ended by Kim Stovall while she was stopped at a red light in Houston, Texas. Kinkaid sued Stovall for negligence. The trial court issued a directed verdict in favor of Kinkaid on the issues of limitations and liability. The jury assessed damages in the amount of $63,525.00, along with prejudgment interest on all past damages in the amount of $17,386.70. Stovall appeals, maintaining that the trial court erred when it (1) denied her motion for a directed verdict on limitations and, instead, granted Kinkaid's motion for a directed verdict; (2) issued a directed verdict in Kinkaid's favor on the issue of negligence; (3) granted Kinkaid's motion to strike Stovall's counter affidavits regarding the reasonableness of Kinkaid's medical expenses; and (4) allowed Kinkaid to present evidence from responses to a deposition by written question when Kinkaid failed to produce those responses prior to trial. Because we find that the trial court erred when it directed a verdict in favor of Kinkaid on the issue of negligence, we reverse the trial court's judgment and remand for a new trial as to liability and damages.
Originally appealed to the Fourteenth Court of Appeals in Houston, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex. Gov't Code Ann. § 73.001. We are unaware of any conflict between precedent of the Fourteenth Court of Appeals and that of this Court on any relevant issue. See Tex. R. App. P. 41.3.
II. The Trial Court's Directed Verdicts in Favor of Kinkaid
In her first and second points of error, Stovall contends that the trial court erred when it granted directed verdicts in favor of Kinkaid on the issues of limitations and negligence.
A. Standard of Review
A trial court may direct a verdict if no evidence of probative force raises a factual issue on the material questions in the lawsuit. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994) (per curiam). An appellate court reviews a trial court's decision to grant or deny a motion for a directed verdict under a legal sufficiency standard of review. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). When we review a directed verdict, we consider all the evidence in the light most favorable to the nonmovant, and we resolve all reasonable inferences that arise from the evidence admitted during trial in the nonmovant's favor. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).
A directed verdict may be granted in one of three situations. First, a directed verdict is proper when there is "no evidence" raised to support a material issue in the suit. Prudential Ins. Co. of Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). Second, a directed verdict is proper where the evidence conclusively establishes a fact and "reasonable minds could reach but one conclusion under the available evidence." Vance v. My Apartment Steak House of San Antonio, Inc., 677 S.W.2d 480, 483 (Tex. 1984). Third, the trial court may direct a verdict when a pleading defect renders judgment for the nonmovant on an issue legally impossible. Anderson v. Vinson Expl., Inc., 832 S.W.2d 657, 665 (Tex. App.-El Paso 1992, writ denied).
B. Directed Verdict in Favor of Kinkaid on Limitations Was Not Error
In her first point of error, Stovall contends that the trial court erred when it denied her motion for a directed verdict on the issue of limitations and, instead, granted Kinkaid's motion for a directed verdict on the issue. Specifically, Stovall maintains that Kinkaid did not serve her with process within the limitations period and that Kinkaid did not present evidence demonstrating her diligence in effectuating service after limitations expired.
Personal injury lawsuits are governed by a two-year statute of limitations. Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a). Here, the car wreck involving Stovall and Kinkaid occurred on November 30, 2015. Kinkaid filed her lawsuit on November 27, 2017, just three days before the statute expired. Yet, the statute of limitations is not satisfied by merely filing suit. Boyattia v. Hinojosa, 18 S.W.3d 729, 733 (Tex. App.-Dallas 2000, pet. denied). To satisfy the statute, a plaintiff must file suit within the limitation period and must also use diligence in having citation issued and served. Dura-Stilts Co. v. Zachry, 697 S.W.2d 658, 659 (Tex. App.-Houston [1st Dist.] 1985, writ ref'd n.r.e.). It is the responsibility of the party requesting service to ensure that service is properly accomplished. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam).
The general rule is that, if a plaintiff files a "petition within the limitations period, service [of process] outside the limitations period may still be valid if the plaintiff exercises due diligence in procuring service on the defendant." Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009). If service is diligently affected after the limitations period has expired, the date of service relates back to the date of filing suit. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990). Once a defendant has affirmatively pled the defense of limitations and shown that service was untimely, the burden shifts to the plaintiff to prove diligent efforts to effectuate service. Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007) (per curiam). When a plaintiff has been successful in showing due diligence, thereby raising a fact issue, "the burden shifts back to the defendant to conclusively show why, as a matter of law, [plaintiff's] explanation is insufficient." Id. (citing Zale Corp. v. Roenbaum, 520 S.W.2d 889, 891 (Tex. 1975) (per curiam)).
"An unexplained delay in effecting service constitutes a lack of due diligence" as a matter of law. Taylor v. Thompson, 4 S.W.3d 63, 65 (Tex. App.-Houston [1st Dist.] 1999, pet. denied). The plaintiff has the burden "to explain every lapse in effort or period of delay." Proulx, 235 S.W.3d at 216. Yet, "a plaintiff's evidence may demonstrate a lack of diligence as a matter of law 'when one or more lapses between service efforts are unexplained or patently unreasonable.'" NETCO, Inc. v. Montemayor, 352 S.W.3d 733, 739 (Tex. App.-Houston [1st Dist.] 2011, no pet.) (quoting Ashley 293 S.W.3d at 179 (quoting Proulx, 235 S.W.3d at 216)). Although the passing of time is an important factor to be considered, courts must also consider the "overall effort expended over the gap in service, and whether the search ceased to be reasonable, especially when other methods of service were available." Ashley, 293 S.W.3d at 181.
Kinkaid conceded that the suit was served after the statute of limitations had expired. Yet, she maintained that she had been diligent in serving Stovall. Normally, the issue of diligence in obtaining service after the limitations period has expired is a fact issue for the jury. Valdez v. Charles Orsinger Buick Co., 715 S.W.2d 126, 128 (Tex. App.-Texarkana 1986, no writ). Even so, the issue may be determined as a matter of law if no valid excuse existed for plaintiff's failure to timely serve defendant, or if the delay coupled with the plaintiff's inaction conclusively negated diligence. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (per curiam). Likewise, "a showing of speedy citation, without any unexplained lapses of time, may establish diligence as a matter of law." Harrell v. Alvarez, 46 S.W.3d 483, 486 (Tex. App.-El Paso 2002, no pet.). Diligence is determined by "whether the plaintiff acted as an ordinarily prudent person would have acted under the same or similar circumstances" and whether the plaintiff acted "diligent[ly] up until the time the defendant was served." Ashley, 293 S.W.3d at 179 (quoting Proulx, 235 S.W.3d at 216).
Here, the trial court took judicial notice of the clerk's file, which showed, among other things, that citation was requested the day Stovall filed suit, November 27, 2017. Citation was issued the very next day. The following day, the process server received the citation. Kinkaid successfully served Stovall on December 9, 2017, around twelve days after suit was filed and nine days after the statute of limitations ran. Clearly, there was no significant gap between Kinkaid filing suit and the service of citation on Stovall. Consequently, the trial court found, and we agree, that, as a matter of law, Kinkaid showed that she was sufficiently diligent in her efforts to serve Stovall. As a result, the trial court did not err when it entered a directed verdict in Kinkaid's favor on the issue of limitations.
Unlike the facts in this case, Texas courts have consistently held that due diligence was lacking as a matter of law based on unexplained lapses of time between filing suit, issuing citation, and actual service in, among others, the following cases: Gant, 786 S.W.2d at 260 (unexplained delay of thirty-eight months); Li v. Univ. of Tex. Health Sci. Ctr. at Houston, 984 S.W.2d 647, 652 (Tex. App.-Houston [14th Dist.] 1998, pet. denied) (unexplained delay of four months); Liles v. Phillips, 677 S.W.2d 802 (Tex. App.-Fort Worth 1984, writ ref'd n.r.e.) (two years and one month between filing and service); Williams v. Houston-Citizens Bank & Tr. Co., 531 S.W.2d 434 (Tex. App.- Houston [14th Dist.] 1975, writ ref'd n.r.e.) (approximately eight months between expiration of first citation and issuance of second).
According to Kinkaid, the evidence showed that the "[p]rocess server went out on the 29th, went back again on the 2nd of December, December 6th, and December 9th, and personally served the defendant." In response, Stovall argued that "there [was] zero explanation of any diligence." According to Stovall, the record only contained statements made by Kinkaid's attorney that the process server attempted to serve her on multiple occasions, and those statements did not amount to evidence. In general, an attorney's statement must be made under oath for it to be considered evidence. Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (per curiam); see also U.S. Gov't v. Marks, 949 S.W.2d 320, 326 (Tex. 1997). Yet, the person opposing the testimony can waive the oath requirement "by failing to object when the opponent knows or should know that an objection is necessary." Banda, 955 S.W.2d at 272. Here, after Kinkaid's counsel's stated to the trial court that the process server had made several attempts at service, Stovall argued that "[n]othing that Mr. Criaco testified -- or stated regarding the service attempts, that's not in evidence. There's no evidence of that." We need not address whether Kinkaid's attorney's statement could have been considered by the trial court as evidence or whether Stovall adequately objected to his statement. This is so because the trial court was within its discretion to find, as a matter of law, that Kinkaid used due diligence in serving Stovall based solely on the contents of the clerk's record.
We overrule Stovall's first point of error.
B. Directed Verdict in Favor of Kinkaid on the Issue of Negligence Was Error
On November 30, 2015, Stovall was driving her vehicle on a stretch of roadway in which she had driven on many occasions. Stovall understood that she was required to maintain a sufficient distance between the front of her vehicle and the rear of any vehicle in front of her. Stovall conceded that she "crashed" into the rear of Kinkaid's vehicle, but she had not been speeding at the time, explaining,
Stovall was driving a Hummer.
Kinkaid was driving a Fiat.
It was rush hour and I came around the curve and I couldn't see anything when I saw . . . the brake lights in front of me. I stepped on the brake as fast as I could and I even stood up on the brake trying to stop the vehicle. The vehicle is a heavy vehicle and it just couldn't stop in time and I slid into her.
According to Stovall, "The road kind of snakes along and it was really dark that night and I just followed the road around and then I saw the brake lights and I stopped." Stovall said that she did not believe there was anything in front of her until she rounded the curve. She stated, "I did everything I could to stop that vehicle." When asked if Kinkaid had done anything to cause the wreck, Stovall said, "Nobody did anything wrong. It was just an accident. I slid into her. I braked so hard that I couldn't -- I was standing up on the brake in the vehicle." Stovall conceded that the wreck was her fault because she rear-ended Kinkaid, but she also stated that "[she] couldn't prevent it." According to Stovall, she had never been involved in a collision before the accident, and she had not been involved in one since.
Kinkaid testified that she had been involved in car accidents before and after the November 30, 2015, collision but that she had not sustained any injuries in those accidents. She did, however, sustain injuries to her neck, back, hips, and knees when Stovall rear-ended her vehicle, and as a result, she was required to seek medical care. When asked how the collision occurred, Kinkaid said Stovall just "slammed" into the back of her car while she was in the middle lane of a three-lane road. Kinkaid stated that it had been dark at the time of the accident but that her vehicle's lights had been on. According to Kinkaid, due to the impact from Stovall's vehicle, Kinkaid's vehicle collided with the vehicle in front of her, and that vehicle collided with the one in front of it. As a result of the wreck, Stovall's vehicle was a complete loss.
Stovall was under the impression that only three vehicles had been involved in the collision.
In her original petition, Kinkaid alleged that Stovall had been operating her vehicle in a negligent and careless manner when she ran into the rear of Kinkaid's vehicle. "'[N]egligence' means failure to use ordinary care, that is, failing to do that which a person of ordinary prudence would have done under the same or similar circumstances or doing that which a person of ordinary prudence would not have done under the same or similar circumstances." Douglas v. Aguilar, 599 S.W.3d 105, 109 (Houston [14th Dist.] 2020, no pet.). "Negligence actions in Texas require 'a legal duty owed by one person to another, a breach of that duty, and damages proximately cause by the breach.'" Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009) (quoting D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002)). Contrary to Stovall's contention that the trial court erred when it directed a verdict in Kinkaid's favor on the issue of liability, Kinkaid maintains that the trial court did not err because Stovall "admitted that she was 100% at fault and 100% to blame for causing the collision."
Kinkaid claimed Stovall had been negligent when she (1) failed to keep a proper lookout, (2) exceeded the speed limit, (3) failed to timely apply her brakes, (4) failed to maneuver her vehicle so as to avoid the collision, (5) failed to operate her vehicle in a reasonable and prudent manner, and (6) failed to obey traffic laws and regulations.
Under common law, "the mere occurrence of a rear-end collision does not establish negligence as a matter of law." Jordan v. Sava, Inc., 222 S.W.3d 840, 850 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (citing DeLeon v. Pickens, 933 S.W.2d 286, 290 (Tex. App.-Corpus Christi 1996, writ denied)); see also Lee v. Carmona, No. 02-16-00443-CV, 2018 WL 1192240, at *2 (Tex. App.-Fort Worth 2018, no pet.) (mem. op.) ("It is well established that the mere occurrence of a rear-end collision may be some evidence of negligence, but it is not negligence as a matter of law."). Instead, a plaintiff must prove specific acts of negligence on the part of the following driver, along with proving proximate cause. Benavente v. Granger, 312 S.W.3d 745, 749 (Tex. App.-Houston [1st Dist.] 2009, no pet.). In regard to rear-end collisions, "standards of ordinary care cannot be fixed with any degree of certainty but must be left in large measure to the trier of the facts." Neese v. Dietz, 845 S.W.2d 311, 314 (Tex. App.-Houston [1st Dist.] 1992, writ denied) (quoting Gaitan v. Reyes Salvatierra, 485 SW.2d 602, 604 (Tex. App.- San Antonio 1972, no writ)). "Whether the plaintiff has succeeded in proving negligence by a preponderance of the evidence is within [a] jury's province to determine." Lee, 2018 WL 1192240, at *2.
Even though the fact of the rear-end collision does not generally establish negligence as a matter of law, Kinkaid argued that, because Stovall admitted that she rear-ended Kinkaid, it was. Quasi-admissions, that is, a party's testimonial declarations that are contrary to her position, are simply some evidence, but they are not conclusive. Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980)). In Campbell v. Perez, No. 02-14-00248-CV, 2015 WL 1020842, at *4 (Tex. App.-Fort Worth Mar. 5, 2015, no pet.) (mem. op.), while looking to the left but moving forward, a driver rear-ended the plaintiff after they were both stopped at an intersection. Campbell, 2015 WL 1020842, at *2-3. The driver testified that the wreck was his fault, that the plaintiff did nothing to contribute to the wreck, that a reasonable person would have kept his car stopped until it was safe to go, and that a reasonable and prudent person would not have moved his car without looking ahead. Id. Even so, the Fort Worth Court of Appeals found that the driver's statements constituted testimony establishing the rear-end collision and admissions of fault but did not establish negligence as a matter of law. Id. at *4.
Here, in addition to admitting that the accident was her fault, Stovall also testified that she was not speeding that night, that it was very dark outside, that she was paying attention to the road but that it was curvy, that she only saw Kinkaid's brake lights after she came around the corner, and that, when she saw her lights, she did everything she could to stop her vehicle, including "stepp[ing] on the brake as fast as [she could] even st[anding] up on the brake trying to stop the vehicle." Stovall never said that she had been driving in a negligent manner. In fact, she said that nobody had done anything wrong. Furthermore, there was no evidence in the record to show that Stovall had been driving in an otherwise careless manner. "[W]here there is evidence that the driver exercised some care, the jury determines whether a reasonably prudent driver would have acted in the same way." Douglas, 559 S.W.3d at 109.
Consequently, Stovall's admission of fault and the description of how the accident occurred "may be some evidence that what she did do constituted negligence, [but] it [did] not establish negligence as a matter of law" in light of her testimony. Vigil v. Kirkland, No. 02-16-00147-CV, 2017 WL 2471091, at *4 (Tex. App.-Fort Worth June 8, 2017, no pet.) (mem. op.) (citing Campbell, 2015 WL 1020842, at *2). Stovall's testimony established fact questions that were "'particularly within the province of the jury' and [can] be disregarded only in exceptional circumstances" not found here. See Garcia v. Workman, No. 07-01-0169-CV, 2002 WL 215508, at *2 (Tex. App.-Amarillo Feb. 12, 2002, no pet.) (quoting Browning Ferris, Inc. v. Hobson, 967 S.W.2d 543, 546 (Tex. App.-Houston [14th Dist.] 1998, pet. denied)) (finding that evidence that driver rear-ended a vehicle after they were both stopped at an intersection when the driver's foot slipped off the pedal and hit the accelerator involved a fact-question for the jury). We cannot say, as a matter of law, that Stovall failed to do that which a person of ordinary prudence would or would not have done under the same or similar circumstances. As a result, we find that the trial court erred in finding otherwise. We, therefore, sustain Stovall's second point of error.
III. Conclusion
We reverse the trial court's judgment and remand for a new trial as to liability and damages.
Because Stovall's second point of error is dispositive, we need not address her remaining two issues.