Terry Simmons v. Elmow Holdings, Inc. F/K/A Rio Pumping Services, Inc.

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-08-027-CV

TERRY SIMMONS APPELLANT

V.

ELMOW HOLDINGS, INC. F/K/A APPELLEE
RIO PUMPING SERVICES, INC.

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FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION 1

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I. Introduction

This is an appeal from a summary judgment rendered against appellant

Terry Simmons on statute of limitations grounds in his personal injury suit

against appellee Elmow Holdings f/k/a Rio Pumping Services, Inc. In four

points, appellant argues that the trial court erred by granting summary judgment

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… See T EX. R. A PP. P. 47.4.
because (1) appellee should have been estopped from asserting a limitations

defense when it did not serve appellant with its pleading, (2) there were

disputed issues of material fact as to whether appellant exercised due diligence

in obtaining service, (3) appellant was not given the opportunity to amend his

summary judgment evidence affidavits to correct technical errors, and (4) there

were disputed issues of material fact regarding the date the cause of action

accrued. We affirm.

II. Background Facts

In May 2006, appellant sued appellee for damages arising from a chemical

spill that occurred in May 2004. Appellant did not successfully serve appellee

before the two year limitations period expired. In June 2006, after the

limitations period had expired, Liberty Mutual Fire Insurance Company,

appellee’s workers’ compensation insurance carrier, filed a plea in intervention.

Appellee answered the plea in intervention in September 2006 but did not

provide its answer to appellant. Appellant never effected service of citation

upon appellee in the underlying lawsuit.

In March 2007, appellee filed its original traditional motion for summary

judgment for failure to timely effectuate service and for failure to use due

diligence to effectuate service. Appellee later withdrew its motion after being

unable to answer the trial court’s question at the summary judgment hearing

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regarding whether a party can move for summary judgment if it has not

answered and there are no affirmative defenses to the claims. In May 2007,

appellee filed its first amended answer and affirmative defenses to appellant’s

original petition. Shortly thereafter, appellee also filed its first amended

traditional motion for summary judgment based on appellant’s failure to timely

serve appellee within the limitations period. The trial court granted appellee’s

motion, and appellant timely filed this appeal.

III. Standard of Review

A defendant is entitled to summary judgment on an affirmative defense

if the defendant conclusively proves all the elements of the affirmative defense.

Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); see T EX. R.

C IV. P. 166a(b), (c). To accomplish this, the defendant-movant must present

summary judgment evidence that establishes each element of the affirmative

defense as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121

(Tex. 1996). When reviewing a summary judgment, 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. IHS Cedars

Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.

2004).

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 A defendant moving for summary judgment on the affirmative defense of

limitations has the burden to conclusively establish that defense. KPMG Peat

Marwick v. Harrison County Hous. Fin., 988 S.W.2d 746, 748 (Tex. 1999);

Dean v. Frank W. Neal & Assocs., Inc., 166 S.W.3d 352, 355 (Tex. App.—Fort

Worth 2005, no pet.). Thus, the defendant must (1) conclusively prove when

the cause of action accrued, and (2) negate the discovery rule, if it applies and

has been pleaded or otherwise raised, by proving as a matter of law that there

is no genuine issue of material fact about when the plaintiff discovered, or in

the exercise of reasonable diligence should have discovered the nature of its

injury. KPMG Peat Marwick, 988 S.W.2d at 748; Dean, 166 S.W .3d at

355–56. If the movant establishes that the statute of limitations bars the

actions, the nonmovant must then adduce summary judgment proof raising a

fact issue in avoidance of the statute of limitations. KPMG Peat Marwick, 988

S.W.2d at 748; Dean, 166 S.W.3d at 356.

IV. Motion for Sanctions

In his first point, appellant argues that the trial court erred in not

sanctioning appellee by prohibiting it from asserting a limitations defense

because appellee did not serve appellant with its answer to the plea in

intervention, which is required by Texas Rule of Civil Procedure 21. See T EX.

R. C IV. P. 21.

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A. Standard of Review

To preserve a complaint for our review, a party must have presented to

the trial court a timely request, objection, or motion that states the specific

ground for the desired ruling, if it is not apparent from the context of the

request, objection, or motion. T EX. R. A PP. P. 33.1(a); see also T EX. R. E VID .

103(a)(1). If a party fails to do this, error is not preserved, and the complaint

is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).

The objecting party must get a ruling from the trial court. This ruling can be

either express or implied. Frazier v. Yu, 987 S.W.2d 607, 610 (Tex.

App.—Fort Worth 1999, pet. denied). If trial judge refuses to rule, an objection

to the refusal to rule is sufficient to preserve error. T EX. R. A PP. P. 33.1(a)(2).

B. Analysis

On April 26, 2007, appellant moved for sanctions under Texas Rule of

Civil Procedure 21b, which provides that

[i]f any party fails to serve on or deliver to the other parties a copy
of any pleading, plea, motion, or other application to the court for
an order in accordance with Rules 21 and 21a, the court may in its
discretion, after notice and hearing, impose an appropriate sanction
available under Rule 215-2b.

T EX. R. C IV. P. 21b (emphasis added). Appellant claimed in his motion for

sanctions that because appellee failed to serve appellant with a copy of its

answer to the plea in intervention, appellee should be prohibited from asserting

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a statute of limitations defense against him. The record, however, does not

show that appellant ever set a hearing or obtained a ruling from the trial court

on his motion for sanctions. Therefore, appellant failed to preserve his

complaint for review. See T EX. R. A PP. P. 33.1(a); see also T EX. R. E VID.

103(a)(1); Bushell, 803 S.W.2d at 712. We overrule appellant’s first point.

V. Disputed Issues of Material Fact

In his second and fourth points, appellant argues that the trial court erred

by granting summary judgment because there were disputed issues of material

fact, including when the cause of action accrued and whether appellant

exercised due diligence in obtaining service. Additionally, in point three,

appellant complains that the trial court erred by not permitting him to amend his

summary judgment affidavits, which he contends evidenced that he used due

diligence to effect service.2

A. Effecting Service Outside the Limitations Period

A suit for personal injuries must be brought within two years from the

time the cause of action accrues. See T EX. C IV. P RAC. & R EM. C ODE A NN.

§ 16.003(a) (Vernon Supp. 2007); Proulx v. Wells, 235 S.W.3d 213, 215 (Tex.

2007). But a timely filed suit will not interrupt the running of limitations unless

2
… We will address appellant’s point three in conjunction with point two
because they both relate to appellant’s due diligence in serving appellee.

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the plaintiff exercises due diligence in the issuance and service of citation.

Proulx, 235 S.W.3d at 215; James v. Gruma Corp., 129 S.W.3d 755, 759

(Tex. App.—Fort Worth 2004, pet. denied). If service is diligently effected after

the limitations has expired, the date of service will relate back to the date of

filing. Proulx, 235 S.W.3d at 215; James, 129 S.W.3d at 759. Due diligence

is the diligence an ordinarily prudent person would use under the same or similar

circumstances. Proulx, 235 S.W.3d at 216; James, 129 S.W.3d at 759. The

duty to use due diligence continues from the date suit is filed until the date the

defendant is served. James, 129 S.W.3d at 759.

W hether a plaintiff was diligent in serving the defendant is normally a

question of fact, but if no excuse is offered for the delay or if the lapse of time

coupled with the plaintiff’s acts conclusively negate diligence, lack of diligence

will be found as a matter of law. Id. A fact issue exists if the plaintiff gives a

valid or reasonable explanation for the delay. Id. Thus, it is the plaintiff’s

burden to present evidence regarding the efforts that were made to serve the

defendant, and to explain every lapse in effort or period of delay. Proulx, 235

S.W.3d at 216. In some instances, the plaintiff’s explanation may be legally

improper to raise the diligence issue and the defendant will bear no burden at

all. Id. In other instances, the plaintiff’s explanation of its service efforts may

demonstrate a lack of due diligence as a matter of law, as when one or more

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lapses between service efforts are unexplained or patently unreasonable. 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.

B. The Date the Cause of Action Accrued

Appellant argues that there are disputed issues of material fact regarding

the date the cause of action accrued. Specifically, he claims that the only

evidence in the record concerning the date the cause of action accrued is in his

own statement referencing the date of the accident and explaining his injuries

(Exhibit E of appellee’s first amended traditional motion for summary judgment)

and an accident report by appellant’s employer Key Energy (Exhibit F of

appellee’s first amended traditional motion for summary judgment) and that

these are inadmissible unsworn hearsay statements. Appellee, however,

contends that appellant judicially admitted the date the cause of action accrued

and that the exhibits fall under the business records exception to the hearsay

rule.

1. Applicable Law

A judicial admission is a formal waiver of proof that dispenses with the

production of evidence on an issue, has conclusive effect, and bars the

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admitting party from disputing the admitted fact. Holy Cross Church of God in

Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001); Lee v. Lee, 43 S.W.3d 636,

641 (Tex. App.—Fort Worth 2001, no pet.). Assertions of fact, not pled in the

alternative, in the live pleadings of a party are regarded as formal judicial

admissions. Holy Cross, 44 S.W.3d at 568; Green v. Ransor, Inc., 175 S.W.3d

513, 517–18 (Tex. App.—Fort Worth 2005, no pet.). Although pleadings

generally do not constitute summary judgment proof, if a plaintiff’s pleadings

contain judicial admissions negating a cause of action, summary judgment may

properly be granted on the basis of the pleadings. Commercial Structures &

Interiors, Inc. v. Liberty Educ. Ministries, Inc., 192 S.W.3d 827, 835 (Tex.

App.—Fort Worth 2006, no pet.). Additionally, we have discretion to accept

statements made in the briefs as true. Jansen v. Fitzpatrick, 14 S.W.3d 426,

431 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

2. Analysis

Appellant alleged in his original petition and first amended original petition

that the accident occurred “on or about May 26, 2004.” Appellant’s statement

that the accident occurred “on or about May 26, 2004“ is an assertion of fact

in appellant’s live pleadings and thus a judicial admission. See Holy Cross, 44

S.W.3d at 568; Green, 175 S.W.3d at 517–18. Therefore, because appellant

judicially admitted the date that the accident occurred, he may not argue now

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that a fact issue exists as to when the cause of action accrued. See Holy

Cross, 44 S.W.3d at 568; Green, 175 S.W.3d at 517–18 (stating that

“appellant may not argue now that a fact issue exists as to whether the

accident occurred around 9:30 a.m. or 9:30 p.m., having earlier alleged in his

petition that the accident occurred around 9:30 p.m”). Additionally, appellant

asserted in the “Statement of the Case” and “Statement of Facts” in his

appellate brief that the incident occurred on May 26, 2004. See Jansen, 14

S.W.3d at 431.

Moreover, the trial court properly overruled appellant’s objections to

appellee’s Exhibits E and F by implication when it granted appellee’s motion for

summary judgment because the documents contain admissions by a party

opponent and are also business records. See T EX. R. E VID. 801(e)(2), 803(6).

Thus, there is no disputed fact issue about the date the cause of action

accrued. See Proulx, 235 S.W.3d at 216; James, 129 S.W.3d at 759–60.

C. Diligence in Effecting Service

Appellant also argues that there are disputed issues of material fact

regarding whether he exercised due diligence in obtaining service. Specifically,

appellant argues that appellee’s affidavit by Brad Elenberg, its registered agent,

is not competent summary judgment evidence; that appellee appeared in the

suit when it filed an answer to the plea in intervention; that there was no

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significant lapse of time between the filing of the suit and appellee’s

appearance in the suit; that appellant brought forth sufficient summary

judgment evidence in his affidavits that due diligence was used to issue

citation; and that the trial court erred by not permitting him to amend his

summary judgment affidavits.

1. Brad Elenburg’s Affidavit

Appellant argues that Elenburg’s affidavit was insufficient summary

judgment evidence because it did not state how long Elenburg had been the

registered agent for appellee, provided a contrary address for service than what

was listed with the Secretary of State, and did not have an exhibit attached.3

As previously discussed, a party must have presented to the trial court a timely

request, objection, or motion that states the specific grounds for the desired

ruling to preserve a complaint for our review. T EX. R. A PP. P. 33.1(a); see also

T EX. R. E VID. 103(a)(1). If a party fails to do this, error is not preserved, and the

complaint is waived. Bushell, 803 S.W.2d at 712.

In this case, appellant objected to appellee’s Exhibits E and F, but he did

not object to Elenburg’s affidavit, Exhibit C. Because appellant failed to include

Exhibit C in his objections to appellee’s summary judgment evidence, he cannot

3
… The text of the affidavit references an attached exhibit, but there is
no attachment.

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now complain that the affidavit is insufficient evidence; thus, appellant did not

preserve his complaint for review. See T EX. R. A PP. P. 33.1(a); see also T EX. R.

E VID. 103(a)(1); Bushell, 803 S.W.2d at 712.

2. Appearance as Waiver of Service

Appellant also contends that appellee’s filing an answer to the plea in

intervention constituted a general appearance. Appellant also claims that

because appellee made a general appearance, there was no significant lapse of

time between the filing of the suit and appellee’s appearance.

A party’s general appearance in a suit does not waive service of process

when the appearance occurs after the limitations period has run and the plaintiff

has not used due diligence in serving the party. James, 129 S.W.3d at 760;

see Seagraves v. City of McKinney, 45 S.W.3d 779, 783 (Tex. App.—Dallas

2001, no pet.) (holding that general appearance by defendant did not waive

statute of limitations defense when plaintiff failed to exercise due diligence in

effecting service until after the statute of limitations expired); cf. Baker v.

Monsanto Co., 111 S.W.3d 158, 160–61 (Tex. 2003) (holding that because

defendant made general appearance when it answered plaintiff’s complaint

within limitations period, intervenors’ claims were not barred).

In this case, the accident occurred on or about May 26, 2004, and

appellant filed his first original petition on May 23, 2006, three days before the

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limitations period expired. After limitations expired, Liberty Mutual filed a plea

in intervention in June 2006, and appellee filed an answer to the plea in

intervention in September 2006. Although Liberty Mutual served appellee with

the plea in intervention, appellant never effected service on appellee in the

underlying lawsuit, even after appellee answered Liberty Mutual’s intervention.

Thus, appellee’s answer to the plea in intervention did not constitute a general

appearance that would waive the need for due diligence in effecting service in

the underlying suit because the plea in intervention was filed and answered

after the limitations period had expired. See James, 129 S.W.3d at 760;

Seagraves, 45 S.W.3d at 783. In other words, because the plea in intervention

and appellee’s answer to the plea in intervention occurred after the limitations

period expired, appellee did not waive its right to complain about lack of

service. See James, 129 S.W.3d at 760; Seagraves, 45 S.W.3d at 783

3. Barry Johnson’s and Dan Sirek’s Affidavits

Appellant also argues that he provided sufficient summary judgment

evidence that he exercised due diligence to effect service through affidavits

from his attorney and process server and that if those affidavits were not

sufficient, the trial court erred by not allowing him to amend them.

Appellant attached attorney Barry Johnson’s and process server Dan

Sirek’s affidavits to his summary judgment response as evidence of his due

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diligence. In the first affidavit, Barry Johnson averred that he “requested that

citation be issued, and citation was paid for in accordance with the rules for fax

filing in Tarrant County, Texas.” He furthered averred that “it was our normal

office procedure for us to contact Dan Sirek for the purpose of obtaining service

. . . and the records of the District Clerk’s office indicate that Dan Sirek picked

up citation . . . on June 1, 2006.” Johnson stated that at some point, “Dan

Sirek returned the citation to our office, and communicated that he had been

unable to obtain service.” Johnson also averred, “I attempted at all times to

exercise due diligence in obtaining service.”

In the second affidavit, process server Dan Sirek averred that in May

2006, he “was contacted by the office of Ted Machi and [a]ssociates, P.C.,

concerning Simmons vs. Elmow Holdings . . . [and] told that the suit had been

filed and that [he] should pick up the citation and effectuate service.” He

averred that

[t]he records of the Tarrant County District Clerk’s office
indicate that I picked up the citation for Elmow Holdings, Inc. on
June 1, 2006.
It is my normal practice to try to effectuate service as soon
as possible when I receive a citation.
I have been unable so far to locate my records concerning
this matter. I have been informed by the office of Ted Machi and
Associates, P.C., that I returned the citation to their office
unserved.
Normally, I would return a citation if I had made attempts to
serve the citation at the address indicated. I believe that I did so

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 in this case, but I am currently unable to locate my records, and I
do not have an independent recollection of it.

At the June 28, 2007 hearing on appellee’s first amended traditional

motion for summary judgment, appellee objected to appellant’s affidavits.

Specifically, appellee objected that the affidavits were invalid because, among

other things, they were not based on personal knowledge and because they

contained inadmissible hearsay. Appellant requested permission to amend the

defects in the affidavits, and the trial court denied that request. The trial court

sustained appellee’s objections to the affidavits.

We will first address appellant’s contention that the trial court erred by

denying appellant’s request to amend his affidavits. Appellant contends that

he should have been allowed to amend because the defects were defects of

form. See T EX. R. C IV. P. 166a(f) (stating that defects in the form of affidavits

will not be grounds for reversal unless specifically pointed out by objection by

an opposing party with opportunity, but refusal, to amend). But although some

of the complained of defects relate to form, others to which appellee also

objected to, such as conclusory statements, are defects of substance. Torres

v. GSC Enters., Inc., 242 S.W.3d 553, 559 (Tex. App.—El Paso 2007, no

pet.). A trial court is only required to allow amendments to defects of form.

Bell v. Moores, 832 S.W.2d 749, 756 (Tex. App.—Houston [14th Dist.] 1992,

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writ denied). Here, even if the trial court had improperly denied appellant the

opportunity to amend his affidavits as to defects of form, the substance of the

affidavits did not contain any information explaining what efforts were taken

to effect service on appellee. Appellant did not provide any information in his

affidavits as to what happened in the time period between June 2006, when

Sirek picked up the citation from the district clerk’s office, and September

2006, when appellee filed its answer to the plea in intervention. Thus, allowing

appellant to amend his affidavits as to the defects in form would not have cured

the lack of substantive detail to provide a valid or reasonable explanation for the

delay in service. See James, 129 S.W.3d at 759. The affidavits were

substantively inadequate to raise a disputed material fact issue as to appellant’s

due diligence. Id.; see also Proulx, 235 S.W.3d at 216. The trial court did not

err by denying appellant’s request to amend or by sustaining appellee’s

objections to appellant’s affidavits.

Furthermore, because appellant’s affidavits were properly excluded, the

record does not contain any evidence regarding appellant’s efforts to effect

service. In fact, the only evidence in the record established that no service was

effected between May 26, 2004, and December 15, 2006. Accordingly,

appellant failed to raise a disputed fact issue on his due diligence excuse by

providing a valid or reasonable explanation for his delay in effecting service.

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Therefore, appellee’s summary judgment evidence proved as a matter of law

that appellant did not use due diligence in serving him and that appellant’s suit

was barred by limitations. See Proulx, 235 S.W.3d at 216; James, 129

S.W.3d at 759–60.

In sum, appellant failed to raise any disputed material fact issues

regarding when the cause of action accrued or whether he exercised due

diligence in effecting service. See Proulx, 235 S.W.3d at 216; James, 129

S.W.3d at 759–60. We overrule appellant’s second, third, and fourth points.

VI. Conclusion

Having overruled appellant’s four points, we affirm the trial court’s

judgment.

TERRIE LIVINGSTON
JUSTICE

PANEL B: LIVINGSTON, DAUPHINOT, and McCOY, JJ.

DELIVERED: July 10, 2008

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