Opinion
Civil Action No. 4:03-CV-212-Y.
June 17, 2004
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Pending before the Court is defendant Metric Property Management, Inc.'s Motion for Summary Judgment [doc. # 10-1], filed October 14, 2003. Having carefully considered the motion, response, and reply, the Court concludes that the motion should be GRANTED.
I. RELEVANT BACKGROUND
In late 1999, plaintiff Thomas Bryant moved into apartment no. 733 at the Stonegate Villas Apartments in Fort Worth, Texas. On October 13, 2000, after deciding that he would like an apartment on a lower floor, the plaintiff moved to apartment no. 1313. After experiencing rashes on his skin, he moved into apartment no. 1326 in late October or early November of 2000. Thereafter, on December 5, 2000, the plaintiff went to his primary-care physician, complaining of chronic pain and continuing skin problems and rashes. When his condition worsened, he made an appointment to see a specialist. On January 2, 2001, the plaintiff saw Dr. William Rea for "chronic pain and continuing skin problems and rashes." Dr. Rea diagnosed the plaintiff as having "toxic mold exposure, immune deregulation, allergic food gastroenteritis, mold sensitivity and toxic encephalopathy." (Pl.'s App. at 31.) Thereafter, on February 26, 2001, the plaintiff had his apartment tested for mold and discovered that it did contain various forms of mold.
On October 25, 2002, the plaintiff filed suit against the defendant for alleged injuries that he sustained as a result of exposure to mold in apartment no. 1326 at the Stonegate Villas Apartments. The plaintiff asserted claims against the defendant for: (1) violations of the Texas Deceptive Trade Practices Act; (2) violations of the Texas Insurance Code; (3) negligence; and (4) breach of contract/warranty. The plaintiff did not serve the defendant with process until March 18, 2003.
The case was removed to this Court on March 25, 2003, based on diversity of citizenship.
The plaintiff originally sued Stonegate Villas, Metric Property Management, Inc., and USRP Texas GP, LLC. All of the defendants were subsequently dismissed from the suit except Metric Property Management, Inc.
In its motions for summary judgment, the defendant claims that it is entitled to summary judgment because the plaintiff's claims are barred by the statute of limitations and there is no probative evidence that the plaintiff's injuries were caused by mold exposure.
II. SUMMARY-JUDGMENT STANDARD
Summary judgment is proper when the record establishes "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). An issue is considered "genuine" if "it is real and substantial as opposed to merely formal, pretended, or a sham." Bazan v. Hidalgo Cty., 246 F.3d 481, 489 (5th Cir. 2001) (citing Wilkinson v. Powell, 149 F.2d 335, 337 (5th Cir. 1945)). Facts are considered "material" if they "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether there are any genuine issues of material fact, the Court must first consult the applicable substantive law to ascertain what factual issues are material. Lavespere v. Niagra Mach. Tool Works, 910 F.2d 167, 178 (5th Cir. 1990). Next, the Court must review the evidence on those issues, viewing the facts in the light most favorable to the nonmoving party. Id.; Newell v. Oxford Mgmt. Inc., 912 F.2d 793, 795 (5th Cir. 1990); Medlin v. Palmer, 874 F.2d 1085, 1089 (5th Cir. 1989).
In making its determination on the motion, the Court must look at the full record, including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. See FED. R. CIV. P. 56(c); Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). Rule 56, however, "does not impose on the district court a duty to sift through the record in search of evidence to support" a party's motion for, or opposition to, summary judgment. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir. 1992). Thus, parties should "identify specific evidence in the record, and . . . articulate" precisely how that evidence supports their claims. Forsyth v. Barr, 19 F.3d 1527, 1536 (5th Cir. 1994). Further, the Court's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249.
To prevail on a motion for summary judgment, the moving party has the initial burden of demonstrating that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. See Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). A defendant moving for summary judgment may submit evidence that negates a material element of the plaintiff's claim or show that there is no evidence to support an essential element of the plaintiff's claim. See Celotex Corp., 477 U.S. at 322-24; Crescent Towing and Salvage Co. v. M/V Anax, 40 F.3d 741, 744 (5th Cir. 1994); Lavespere, 910 F.2d at 178.
To negate a material element of the plaintiff's claim, the defendant must negate an element that would affect the outcome of the action. See Anderson, 477 U.S. at 247. If the defendant moves for summary judgment alleging no evidence to support an essential element of the plaintiff's claim, the defendant need not produce evidence showing the absence of a genuine issue of fact on that essential element. Rather, the defendant need only show that the plaintiff, who bears the burden of proof, has adduced no evidence to support an essential element of his case. See Celotex, 477 U.S. at 325; Teply v. Mobil Oil Corp., 859 F.2d 375, 379 (5th Cir. 1988).
When the moving party has carried its summary-judgment burden, the respondent must go beyond the pleadings and by his own evidence set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e). This burden is not satisfied by creating some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. See Anderson, 477 U.S. at 249-50.
III. ANALYSIS
A. Statute of Limitations
The defendant asserts that all of the plaintiff's claims, including his claim for breach of contract, are subject to a two-year statute of limitations. The defendant argues that the plaintiff's alleged injuries began on October 13, 2000, when he moved into apartment no. 1313 at the Stonegate Villas. The defendant alleges that because the plaintiff did not file his suit until October 25, 2002, over two years later, his claims are barred by the statute of limitations. In addition, the defendant claims that even assuming the plaintiff had initially filed his suit within the statute of limitations, he failed to use due diligence in serving the defendant with process as required by Texas law.
The plaintiff, on the other hand, argues that his breach-of-contract claim is subject to a four-year statute of limitations. As to his other claims, the plaintiff argues that they are not barred by the two-year statute because: (1) he did not get sick from the mold in apartment no. 1326 until November or December 2000; (2) he did not realize that his injuries were associated to the mold exposure until January 2001; and (3) his apartment was not tested for mold until February 26, 2001.
The first issue is what statute-of-limitations period applies to the plaintiff's claims. The parties appear to agree that a two-year statute applies to all of the plaintiff's claims except for the plaintiff's breach-of-contract claim. As to this claim, the plaintiff argues that a four-year statute should apply, while the defendant argues for a two-year statute because the substance of the breach-of-contract claim is based in tort.
Under Texas law, courts look to the substance of a claim, rather than the title of the cause of action, to determine which limitations provision should govern a particular claim. See Paredes v. City of Odessa, 128 F. Supp.2d 1009, 1015-16 (W.D. Tex. 2000). Though a contract may exist, if the substance of the plaintiff's claim is based in tort, then the tort statute-of-limitations provision applies. Id; see Swanson v. Arabian Am. Oil Co., 671 F. Supp. 1125, 1127 (S.D. Tex. 1987) ("[D]espite the existence of a contract, if plaintiff pleads negligence, or pleads facts which would constitute negligence, the courts . . . will consider the cause of action to be in tort rather than contract").
As to his "breach-of-contract/warranty" claim, the plaintiff, in his complaint, states:
The Defendants' conduct also can be seen to have violated Defendants' duties and to constitute a breach of contract and/or a breach of the implied warranty of habitability and fitness for living, and/or the implied warranty to perform services in a good and workmanlike manner. . . . Such breaches of contract and of warranty were a producing cause of the incident in question and the injuries and damages suffered by Plaintiff.
10.2 The risk of the injuries suffered by Plaintiff . . . were reasonably foreseeable to Defendants. Defendants . . . failed to provide for the safety of the residents of the Stonegate Villa Apartments, failed to exercise ordinary care in providing for the safety of the residents. . . .
10.3 Plaintiff alleges herein that the incident and Plaintiff's injuries and damages were proximately caused by Defendants' continued policy. . . . The acts, omissions, policy considerations, and all allegations cited above were carried out by Defendants . . . and were the result of actual conscious indifference to the welfare of Plaintiff.
10.4 The acts and/or omissions described above were jointly and/or severally a proximate or producing cause of the incident and Plaintiff's injuries and damages.
(Pl.'s Orig. Pet. at 10-11.) As to damages, the plaintiff seeks relief for various items, including medical expenses, physical pain and suffering, mental anguish, physical impairment, disfigurement, and loss of earning capacity.
After reviewing the plaintiff's complaint, the Court concludes that the plaintiff's breach-of-contract claim sounds in tort. Although he titles it a breach-of-contract claim, its supporting allegations clearly involve tort law when they urge reasonable foreseeability and a breach of the duty of ordinary care. In addition, the plaintiff fails to refer to any contract at all. Furthermore, the damages sought are more typically found in personal-injury as opposed to breach-of-contract claims. See, e.g., Swanson, 671 F. Supp. at 1126. Because the plaintiff's breach-of-contract claim is really a tort claim, the two-year statute of limitations applies.
Now that the Court has determined that a two-year statute of limitations applies to all of the plaintiff's claims, the next issue is whether the plaintiff timely filed his complaint. After reviewing the evidence, the Court concludes that the plaintiff did so. The plaintiff moved into apartment no. 1326 sometime at the end of October or early November of 2000. This is the absolute earliest that his claims for injuries suffered in apartment no. 1326 could have began accruing. Because he filed his suit on October 25, 2002, within two years, the Court concludes that he timely filed it within the statute of limitations.
The next issue is whether the plaintiff's claims, although initially filed timely, are still barred by the statute of limitations. Under Texas statute-of-limitations law, "in order to `bring suit' on a state law claim within the two-year statute of limitations, the plaintiff must not only file suit within the limitations period but must also use due diligence in serving the defendant with process if the defendant is served after the expiration of the limitations period." Paredes v. City of Odessa, 128 F. Supp.2d 1009, 1016 (W.D. Tex. 2000) (quoting Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (per curiam)). If the plaintiff does not use "due diligence" to effect service, the late service will not relate back to the original filing date, and the lawsuit must be dismissed on limitations grounds. Paredes, 128 F. Supp.2d at 1016. According to the Dallas Court of Appeals, the "purpose behind a statute of limitations is not only to encourage a plaintiff to prosecute his claims within a period of time but, just as important, to advise the defendant of the claim against him in a timely fashion so that he may prepare his defense and preserve evidence before the lapse of time has rendered this process difficult, if not impossible." Broom v. MacMaster, 992 S.W.2d 659, 664 (Tex.App.-Dallas 1999, no pet. h.). In some respects, timely service of the complaint is more important because "[i]t is the service of process that gives the defendant legal notice of the allegations being made against him." Broom, 992 S.W.2d at 664.
If the defendant establishes that the plaintiff failed to serve the complaint within the two-year statute of limitations, the burden shifts to the plaintiff to produce summary-judgment evidence that raises a fact question as to whether the plaintiff used due diligence in his attempt to timely serve the defendant. Paredes, 128 F. Supp.2d at 1018. Generally, the issue of whether a plaintiff exercised due diligence is a question of fact. Id. "Summary judgment should be granted on statute of limitations grounds only if the defendant shows (1) that the defendant was not served with the complaint within the two-year limitations period; and (2) as a matter of law, the plaintiff did not use due diligence in effectuating service." Paredes, 128 F. Supp.2d at 1018 (citing Gant, 786 S.W.2d at 260).
"As the term `due diligence' implies, the plaintiff has a duty to take action to effectuate service of process on the defendant." Paredes, 128 F. Supp.2d at 1019. "Generally, where the plaintiff makes no attempt to serve the defendant within the limitations period, an explanation for the absence of any attempt to procure service will not raise a fact issue as to whether due diligence was used." Id. (citing Rodriguez v. Tinsman Houser, Inc., 13 S.W.3d 47, 50-51 (Tex.App.-San Antonio 1999, no writ) (holding that a complete failure to attempt service of process that is due to miscommunication or mistaken belief does not raise a fact issue on due diligence because "there are no efforts from which to evaluate the reasonableness or diligence of the actor")).
In this case the parties agree that the plaintiff failed to serve the defendant until after the two-year statute of limitations had run. As to this failure, the plaintiff states:
Plaintiff's claims originally were filed in November 2001 and later dismissed because the plaintiff could not travel to the court mandated settlement conference. See Affidavit of Jerry C. von Sternberg, App. pp. 33-34. The case was re-filed in state court on October 25, 2002. Id. As is customary, counsel's office requested that the Court Clerk return a filed stamped copy. Id. Plaintiff's counsel never received such a copy and therefore, did not have the service Petition with which to serve Defendants. Id. When Defendant did not timely answer, an investigation was made as to service, and counsel's office found that no citations were requested, and on February 28, 2003, counsel immediately requested citations. Such were served on defendants in March, 2003. Defendants alleged they were served on March 18, and removed the action to federal court on March 25th. As a result, it took merely four (4) months to request citation and a little over 4½ months for them to be served.
Plaintiff's counsel's office procedures are to request a return copy of the Petition, and begin service efforts upon receipt. Unfortunately, in this instance, as noted in the files of the state court, as indicated by the Removal documents filed by Defendant, no return envelope was included in the original filing package. See Cover Letter annotated by the district clerk, App. p. 32. Counsel inquired of their office as to when service had been requested and as to the return of service. As soon as Plaintiff's counsel learned that service had not been requested, they immediately served Defendants.
(Pl.'s Resp. at 10-11.)
After reviewing the parties' arguments and the relevant case law, the Court concludes that as a matter of law the plaintiff failed to exercise due diligence in effectuating service of process on the defendant. In this case, it is clear that the plaintiff failed to take any action to effectuate service of process until February 28, 2003, which is clearly outside the two-year statute of limitations. Although the plaintiff claims that he failed to take any action due to a mistake, a complete failure to attempt service of process does not raise a fact issue on due diligence because "there are no efforts from which to evaluate the reasonableness or diligence of the actor." Rodriguez, 13 S.W.3d at 50-51. "In cases where due diligence has been found, at least to raise a fact question, the plaintiff made some efforts to procure service but by mistake or clerical error was not immediately successful." Paredes, 128 F. Supp.2d at 1019.
The plaintiff acknowledges in his response that he was apprised "of the causal connection between his residence in no. 1326 and his illnesses and injuries" on January 2, 2001, when he first saw Dr. Rea. (Pl.'s Resp. at 7.)
The plaintiff, relying on Saenz v. Keller Industries of Texas, Inc., 951 F.2d 665 (5th Cir. 1992) and Valdez v. Charles Orsinger Buick Co., 715 S.W.2d 126 (Tex.App.-Texarkana 1986, no writ), claims that summary judgment should not be granted in favor of the defendant because a fact issue exists whether he exercised due diligence in serving the defendant. The plaintiff argues that "[b]ecause counsel in the instant case was mistaken as to the status of the service of process and such was caused by a clerical error in counsel' office, this Court should follow Saenz and Valdez on substantially similar facts and deny summary judgment as a matter of law." (Pl.'s Resp. at 12.)
After reviewing Saenz and Valdez, the Court concludes that these cases are distinguishable from this case. In Saenz, while filing the complaint, a secretary from the plaintiffs' law firm asked the clerk whether all the appropriate forms had been submitted. The clerk informed her that they had even though the summons request form required by the local rules was not attached. Because the request form was not submitted, the summons did not issue for service on the defendants. Over the next several months, the secretary called the clerk's office several times to inquire whether the defendants had been served. Each time, the clerk informed her that service had not yet been accomplished. Eventually, the secretary was told that no summons was on file. At that point, the plaintiffs' attorney submitted a summons request form and the defendants were served. The Court in Saenz held that a fact issue regarding whether the plaintiffs engaged in due diligence existed because the plaintiffs had relied on a miscommunication with the clerk's office.
Similarly, in Valdez, the plaintiff failed to obtain service on a second defendant because the amount of the fee filed with the complaint covered service on only one defendant, even though the local rules publicized the amount of the filing fee required for serving two defendants. A secretary at the plaintiff's law firm had telephoned the district clerk to find out the amount of the fee, and the clerk told her the amount of the fee for service upon only one defendant. The plaintiff filed a check for the amount stated by the clerk and summons issued for service upon only one of the two defendants. The error was not discovered until after the statute of limitations had expired.
In both Valdez and Saenz, the courts concluded that a fact issue existed as to due diligence when the plaintiff, although failing to follow local rules, relied on a miscommunication with the clerk's office. In this case, the plaintiff does not have the excuse that he relied on a miscommunication with the clerk's office in an attempt to show due diligence. Instead, the plaintiff's only excuse for not serving the defendant within the statute of limitations is that he forgot to enclose a return envelope with his petition and so never received a return copy of the petition — which would have served as a reminder that he needed to effect service of process on the defendant. In other words, the plaintiff did absolutely nothing to effect service of process on the defendant. He was not prevented from obtaining service of process because the defendant was evading service or unable to be located or because of misinformation from the clerk's office. Instead, the plaintiff did not serve process on the defendant for several months after the statute of limitations had expired because he simply forgot to do so. Such an excuse is really no excuse at all and cannot, as a matter of law, be considered as due diligence. Because the plaintiff did not use due diligence in serving the defendant after the expiration of the statute of limitations, the plaintiff's claims are barred by the statute of limitations.
B. Evidence of Causation
To prevail on this claims, the plaintiff must show by a reasonable medical probability through competent expert testimony that his alleged injuries were caused by mold exposure at the Stonegate Villas Apartments. See, e.g., Brookshire Bros., Inc. v. Smith, No. 01-02-00677, 2004 WL 1064776, at *3 (Tex.App. — Houston [1st Dist.] May 13, 2004, no pet. h.); Coastal Tankships USA, Inc. v. Anderson, 87 S.W.3d 591, 610 (Tex.App. — Houston [1st Dist.] 2002, pet. denied); Leitch v. Hornsby, 935 S.W.2d 114, 118-20 (Tex. 1996). The defendant argues that it is entitled to summary judgment because the plaintiff has presented no probative evidence of causation that the plaintiff's injuries were caused by mold exposure at the Stonegate Villas. The plaintiff, on the other hand, argues that it does have evidence of causation — the declaration of Dr. Rea. In his declaration, Dr. Rea states:
3. I was consulted by Thomas Bryant for the first time on January 2, 2001, with chief complaints of mold exposure, abdominal pain, abdominal cramps, skin rash, cervical lymph node pain, food sensitivities, inhalant sensitivities and syncope. He also developed respiratory symptoms, including difficulty in breathing after food consumption. I subsequently saw and treated him for Esophagitis, Escophageal Spasm, Allergic Food Gastroenteritis and Weight Loss.
4. I diagnosed this patient as having toxic mold exposure, immune deregulation, allergic food gastorenteritis, mold sensitivity and toxic encephalopathy. It is my opinion, based upon my examination of Thomas Bryant, as well as my education, training, skill and experience, that within a reasonable medical probability, the conditions observed by me in January, 2001 and thereafter, were caused by exposures to mixed molds and their associated mycotoxins, during his residency at Apartment No. 1326, Stonegate Villas, commencing in November, 2000.
(Pl.'s App. at 30-31.)
After reviewing Dr. Rea's declaration, the Court concludes that it is not competent summary judgment evidence and should be stricken because it is conclusory and does not recite any of the specific facts or steps supporting his conclusions. "Rule 56(e) of the [Federal] Rules of Civil Procedure provides that affidavits supporting and opposing motions for summary judgment must do more than present something that will be admissible in evidence." Mid-State Fertilizer Co. v. Ex. Nat'l Bank of Chicago, 877 F.2d 1333, 1339 (7th Cir. 1989). "They shall `set forth facts' and by implication in the case of experts (who are not `fact witnesses') a process of reasoning beginning from a firm foundation." Id. (quoting Am. Key Corp. v. Cole Nat'l Corp., 762 F.2d 1569, 1579-80 (11th Cir. 1985)). "An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process." Mid-State Fertilizer Co., 877 F.2d at 1339; see Minasian v. Standard Chartered Bank, PLC, 109 F.3d 1212, 1216 (7th Cir. 1997) ("An expert is entitled to offer a view on the ultimate issue, see Fed.R.Evid. 704(a), but an expert's report that does nothing to substantiate this opinion is worthless, and therefore inadmissible"). Richardson v. Richardson-Merrell, Inc., 857 F.22d 823, 829-32 (D.C. Cir. 1988) (holding that an expert's declaration, full of assertion but empty of facts and reasons, will not get a case past a motion for summary judgment, for the judgment must "look behind [the expert's] ultimate conclusion . . . and analyze the adequacy of its foundation").
In this case, Dr. Rea presents nothing but conclusions in his affidavit. He fails to provide any facts, any hint of an inferential process, or any discussion of a medical foundation that supports his conclusion that the plaintiff's illnesses were caused by his exposure to mold while living in apartment no. 1326. Consequently, the Court concludes that Dr. Rea's declaration must be stricken and the defendant is entitled to summary judgment on all of the plaintiff's claims because the plaintiff has failed to provide any evidence of causation.
IV. CONCLUSION
Based on the foregoing, it is ORDERED that the defendant's Motion for Summary Judgment [doc. # 10-1] is GRANTED.