Opinion
No. 05-15-00385-CV
03-03-2016
TARNESHA TAYLOR AND DENISE JACKSON, Appellants v. BRITTANI HILL, Appellee
On Appeal from the County Court at Law No. 4 Dallas County, Texas
Trial Court Cause No. CC-13-05970-D
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Myers
Opinion by Justice Myers
Tarnesha Taylor and Denise Jackson appeal the trial court's judgment that they take nothing against Brittani Hill. Appellants bring one issue on appeal contending the trial court erred by granting Hill's motion for summary judgment asserting the statute of limitations. We affirm the trial court's judgment.
BACKGROUND
This case arises out of an automobile accident on October 17, 2011. Appellants filed suit against Hill on October 17, 2013, alleging Hill's negligence resulted in the accident and caused appellants' physical injuries and property damage. Hill was served with the petition five months later on March 29, 2014. Hill's answer asserted the affirmative defense of the statute of limitations. Hill filed a motion for summary judgment asserting she was not served with process during the two-year limitations period and that appellants did not use due diligence in serving her. Appellants filed a response to the motion for summary judgment and attached evidence they contend shows they acted with due diligence in obtaining service on Hill. The trial court granted Hill's motion for summary judgment and ordered that appellants take nothing from Hill.
SUMMARY JUDGMENT
The standard for reviewing a traditional summary judgment is well established. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); McAfee, Inc. v. Agilysys, Inc., 316 S.W.3d 820, 825 (Tex. App.—Dallas 2010, no pet.). Rule 166a(c) requires the trial court to render summary judgment if the pleadings, affidavits, and other documents on file at the time of the hearing show 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 in the motion. TEX. R. CIV. P. 166a(c). The movant has the burden of showing no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). In deciding whether a disputed material fact issue exists precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Nixon, 690 S.W.2d at 549; In re Estate of Berry, 280 S.W.3d 478, 480 (Tex. App.—Dallas 2009, no pet.). Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). We review a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Dickey v. Club Corp., 12 S.W.3d 172, 175 (Tex. App.—Dallas 2000, pet. denied).
A properly pleaded affirmative defense supported by uncontroverted summary judgment evidence may serve as the basis for a summary judgment. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991). To obtain summary judgment on the affirmative defense of limitations, a movant must conclusively establish the elements of the defense, including when a cause of action accrued and that the plaintiff did not file suit within the limitations period. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005).
A person must bring suit for personal injury no later than two years after the day the cause of action accrues. TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West Supp. 2015). A cause of action for negligence accrues on the date the negligent, injury-producing act is committed. Dunmore v. Chicago Title Ins. Co., 400 S.W.3d 635, 641 (Tex. App.—Dallas 2013, no pet.). In this case, the accident occurred, and appellants' negligence cause of action accrued, on October 17, 2011. Appellants filed this suit two years later on October 17, 2013. Therefore, appellants suit was filed within the limitations period.
However, the filing of a petition will not interrupt the running of limitations unless the plaintiff exercises due diligence in the issuance and service of citation. Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 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 affirmatively pleaded the defense of limitations, and shown that service was not timely, the burden shifts to the plaintiff to prove diligence." Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009). We determine whether a plaintiff exercised due diligence by asking "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." Proulx, 235 S.W.3d at 216. This determination is ordinarily a fact question "determined by examining 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. It is the plaintiff's burden to present evidence of its efforts to serve the defendant and to explain every lapse in effort or period of delay. Id. If the plaintiff's explanation fails to raise a fact question as to the plaintiff's diligence, then the defendant will have no burden to show the plaintiff did not act diligently. Id. "But 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.
Hill's Summary Judgment Proof
Appellants assert Hill failed to prove she was not served within the limitations period, relying on this Court's opinion in Sutton v. Sheikh, No. 05-12-01168-CV, 2013 WL 4041552 (Tex. App.—Dallas Aug. 9, 2013, no pet.) (mem. op.). In that case, the plaintiff filed suit on the last day under the statute of limitations, and the defendant filed an answer about five months later. The defendant moved for summary judgment and asserted he was never served and that the plaintiff failed to use due diligence to serve him. The only summary judgment evidence the defendant referenced in the motion was the plaintiff's petition. Id. at *1. We concluded that the defendant failed to present any evidence he was not timely served and that the burden never shifted to the plaintiff to show due diligence in serving the defendant. Id. at *3.
In this case, Hill stated in her motion for summary judgment that the automobile accident occurred on October 17, 2011, appellants filed their original petition on October 17, 2013, and appellants served Hill on March 29, 2014. The date of the accrual of the cause of action is supported by appellants' petition, which states the accident occurred on October 17, 2011. The date of service on Hill is supported by the return of process on file with the court showing Hill was served on March 29, 2014. Accordingly, we conclude Hill conclusively proved the date of the accrual of the cause of action and that she was not served within the limitations period. Therefore, Sutton is distinguishable from the case before us. Because Hill conclusively proved she was not served within the limitations period, the burden of proof shifted to appellants to prove their diligence in obtaining service on Hill.
Appellants' Summary Judgment Proof
The return of process shows it was issued on October 18, 2013, one day after the petition was filed. In their response to the motion for summary judgment, appellants' assert they acted with due diligence in obtaining service on Hill. Their response included the affidavits of appellants' attorney and the process server. Appellants' attorney testified that while the petition was being prepared, he instructed his assistant to search for Hill's address using "Accurint® for Legal Professionals" to "skip trace" Hill's current address. After reviewing the assistant's research, the attorney determined that an address in Lancaster was Hill's most current address. The process server picked up the citation from the attorney on October 22, 2013 and attempted service at the Lancaster address the next day. The process server was unable to serve Hill at this address, and the man and woman at that address said they had lived there for the last six months or so. The attorney testified the process server told him the address was a "bad address." The attorney stated that based on the information from the process server, he did not believe that substituted service would be possible at that address. The attorney told the process server "to hold onto the citation rather than return it to be filed as an unexecuted citation," and that the attorney would inform him when there was a new address for Hill. The attorney instructed his assistant "to routinely monitor Accurint®" for Hill's address, which the assistant did "through the end of the year and into the beginning of the [sic] 2014." Another search before a hearing on February 10, 2014 yielded the same address in Lancaster. The attorney stated in the motion for summary judgment that he "believed monitoring Accurint® for a new address to appear was a better use of resources [than] sending the process server out on different older addresses." The attorney stated in his affidavit that on March 24, 2014, he instructed the process server to attempt service at a Dallas address, which the search showed was an older address for Hill. The process server testified he went to the address on March 29, 2014 and learned that Hill and her grandmother lived there. When the process server returned to the Dallas address that evening, Hill was there, and he served Hill with the petition.
Appellants argue these facts show they acted diligently in attempting to serve Hill, and they rely on Proulx v. Wells, 235 S.W.3d 213 (Tex. 2007), in support of their argument. In that case, the defendant was actively avoiding service, moving from the home of one relative to another. The plaintiff hired two investigators and two process servers to locate the defendant. The process servers attempted service thirty-seven times at five different addresses over a nine-month period. The plaintiff finally served the defendant through substituted service. Id. at 214-15. One of the investigators testified that the difficulty in serving the defendant was caused by the defendant "moving from relative to relative and doing his best to avoid service from the courts and creditors." Id. at 217. The supreme court determined this evidence demonstrated there were no lengthy periods of unexplained inaction. "In light of the evidence that was presented regarding [the plaintiff's] continuous investigation and repeated service attempts, coupled with evidence that [the defendant] was deliberately avoiding service," the supreme court concluded that the defendant "failed to conclusively establish lack of diligence." Id.
The supreme court's statement appears to combine two different conclusions, first, the unstated conclusion that the plaintiff's evidence raised a genuine issue of material fact regarding his diligence in serving the defendant, which shifted the burden of proof to the defendant, and second the stated conclusion that the defendant failed in its burden "to conclusively establish lack of diligence." --------
The facts of this case are not analogous to Proulx. Here, appellants did not hire an investigator but simply used a computer program to search for a current address for Hill. When the address discovered by the computer turned out to be incorrect, appellants made no investigation of other possible addresses other than waiting for the computer program to discover a new address. When the attorney finally decided to investigate an older address, the process server learned Hill lived there, and he was able to serve Hill the same day. The attorney did not explain how or when he discovered the Dallas address where Hill lived. The attorney presented no evidence or explanation of why his approach of waiting on the computer program to reveal a new address was a reasonable course of action. Appellants' evidence also failed to show the extent of their attorney's efforts in "monitoring" the computer program. Appellants' attorney accounts for what appears to be a three-month period, October 23 to "the beginning of the [sic] 2014" by stating he instructed his assistant "to routinely monitor Accurint® for Defendant's address to see if a new address presented itself for Defendant," but the attorney did not explain the frequency of searches his "routine" required. The last computer search appellants' attorney mentions was a search "[b]efore the Rule 165a dismissal hearing of February 10, 2014." The attorney presented no evidence of his efforts to obtain service on Hill between that search and his decision six weeks later to have service attempted at an old address for Hill. Appellants also presented no evidence that Hill was avoiding service.
Essentially, appellants' evidence of their diligence in obtaining service of process consisted of searching on one computer program for Hill's current address, and when the address the program found was incorrect, waiting five months for the program to find a newer address; and when the program could not after five months find a newer address, only then investigating any other addresses for Hill. Appellants never attempted service by publication or explained the reasons why they did not do so. See Ashley, 293 S.W.3d at 181; TEX. R. CIV. P. 190 (providing for service by publication when defendant's residence is unknown). Appellants did not hire an investigator but instead relied exclusively on computer searches by their attorney's assistant to locate Hill. See Parmer v. DeJulian, No. 12-07-00479-CV, 2008 WL 4225994, *6 (Tex. App.—Tyler Sept. 17, 2008, no pet.) (mem. op.) (finding lack of diligence as a matter of law where plaintiff relied on its own efforts to locate defendant over a one-year period, rather than resorting to other methods such as hiring a private investigator or process server or performing citation by publication) (cited by Ashley, 293 S.W.3d at 181). We conclude appellants' evidence failed to raise a genuine issue of material fact that they acted diligently in serving Hill. Accordingly, the burden of proof never shifted back to Hill to disprove appellants' diligence.
We conclude appellants have not shown the trial court erred by granting Hill's motion for summary judgment. We overrule appellants' issue.
CONCLUSION
We affirm the trial court's judgment.
/Lana Myers/
LANA MYERS
JUSTICE 150385F.P05
JUDGMENT
On Appeal from the County Court at Law No. 4, Dallas County, Texas
Trial Court Cause No. CC-13-05970-D.
Opinion delivered by Justice Myers. Justices Francis and Lang-Miers participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee BRITTANI HILL recover her costs of this appeal from appellants TARNESHA TAYLOR AND DENISE JACKSON. Judgment entered this 3rd day of March, 2016.