ACCEPTED
01-15-00963-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/24/2015 9:49:08 AM
CHRISTOPHER PRINE
CLERK
IN THE FIRST COURT OF APPEAL
STATE OF TEXAS FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
12/28/2015 10:06:00 AM
CHRISTOPHER A. PRINE
NO.: 01-15-00963 Clerk
JUAN SOTO PEREZ, ET AL.
VERSUS
JARED EFURD AND JAMES EFURD
APPLICATION TO THE FIRST COURT OF APPEAL FOR REVIEW FROM
THE SIXTY FIRST JUDICIAL DISTRICT COURT FOR THE COUNTY OF
HARRIS, STATE OF TEXAS, NO: 2014-19704,
THE HONORABLE ERIN LUNCEFORD, PRESIDING
ORIGINAL BRIEF FILED ON BEHALF OF THE APPELLANTS JUAN SOTO
PEREZ, ET AL.
Respectfully submitted:
H.L. HARPER & ASSOCIATES, L.L.C.
VESTA T. ARMSTRONG
Texas State Bar No. 00798240
1631 Elysian Fields Avenue
New Orleans, Louisiana 70117
(855) 880-4673 Office
(504) 322-3807 Facsimile
varmstrong@hlharperandassociates.com
Identity of Parties and Counsel
Appellants:
Juan Soto Perez, Jose Ulloa-Siallos, Keyri Menjivar, Individually and as
next friend of Kendric Menjivar
Trial and Appellate Counsel:
H.L. HARPER & ASSOCIATES, L.L.C.
Vesta T. Armstrong, Esq.
1631 Elysian Fields Avenue
New Orleans, Louisiana 70117
and
EDWIN M. SHORTY, JR. & ASSOCIATES, APLC
Edwin M. Shorty, Jr., Esq., Pro Hac Vice
650 Poydras Street, Suite 2515
New Orleans, Louisiana 70130
Appellees:
Jared Efurd and James Efurd
Trial and Appellate Counsel:
KANE, RUSSELL, COLEMAN & LOGAN, PC
Zach T. Mayer, Esq.
William R. Jones, Esq.
1601 Elm Street, Suite 3700
Dallas, Texas 75201
1
Table of Contents
Index of Authorities………………………………………………………………….
Statement of the Case………………………………………………………...……...
Issues Presented……………………………………………………………………..
Statement of the Facts……………………………………………………………….
Summary of the Argument…………………………………………………………..
Argument…………………………………………………………………………....
Prayer………………………………………………………………………………..
Appendix…………………………………………………………………………….
Certificate of Compliance – Word Count……………………………………………
2
Index of Authorities
BP Auto., L.P. v. RML Waxahachie Dodge, L.L.C. NO. 01-12-00085-CV (Tex.
App., 9/18/14)………………………………………………………………………..
Eichel v. Ulla, 831 S.W.2d 42, 44 (Tex. App.—El Paso 1992, no writ)…………….
Evans Am. Corp. v. Munter’s Moisture Control, No. 01-92-01046-CV, 1993 WL
518607, (Tex. App.—Houston [1st Dist.] December 16, 1993, no writ) (not
designated for publication)…………………………………………………………..
Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990)…………………………………
Gundermann v. Buehring, No. 13-05-278-CV (TX 2/2/2006) (TX, 2006)………….
Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004)…………..
Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984)…………………….
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985)………………….
Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007)………………………………….
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex.
2003).........................................................................................................................
Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995)………….
Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991)……………
Taylor v. Thompson, 4 S.W.3d 63, 64 (Tex. App.-Houston [1st Dist.] 1999, pet.
denied)……………………………………………………………………………….
Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 890 (Tex. 1975) (per curiam)…………
3
Statement of the Case
This case involves a civil suit for personal injuries sustained in Harris
County, Texas. The plaintiffs filed suit for personal injuries on April 9, 2014 and
served the defendants with said suit on December 12, 2014. The matter proceeded
to discovery between the parties. The defendants filed a Motion for Summary
Judgment based on the affirmative defense of statute of limitations on September
17, 2015 which the trial court granted on October 16, 2015. The appellants now
appeal from said judgment.
Issue(s) Presented
Did the trial court commit reversible error as a matter of law when granting
the Defendants Motion for Summary Judgment based on the affirmative defense of
statute of limitations?
Statement of Facts
Appellants are residents of New Orleans, Louisiana. They were involved in
an automobile accident on August 30, 2012, while in Houston, Texas. Specifically,
a vehicle occupied by appellants was rear ended by a vehicle being operated by
appellees while stopped at a red light at the intersection of 4700 Airline Drive,
Harris County, Texas. Appellants suffered multiple injuries as a result of the
collision. The appellees address at the time of the collision was 4111 US-80 E,
#306, Mesquite, Dallas County, Texas 75150. Appellants filed an original petition
4
for damages on April 9, 2014. Issuance of citation was properly requested on the
same day. The clerk of court then issued the citations as requested on April 14,
2014. The appellees last known address that was listed in the citation was 4701
Preston Park Blvd., #1611, Plano, Collin County, Texas 75095. Appellants filed a
First Amended Original Petition and First Set of Discovery and requested issuance
of citation on July 28, 2014. The clerk of court issued the citations as requested on
August 1, 2014. The appellees correct address that was listed in the citation was
921 Glory Drive, Waxahachie, Ellis County, Texas 75165.
Appellant’s process server, Gregory D. Harper, received the citation with
petition attached on or about September 18, 2014. He attempted to personally serve
appellees several times at 921 Glory Drive, Waxahachie, Texas 75165; namely on
September 18, 2014, September 20, 2014, September 23, 2014, and September 24,
2014, to no avail.
Appellants subsequently filed a Motion for Alternative Service on October
29, 2014. The Court granted the motion on November 5, 2014. On December 12,
2014, Mr. Harper served appellees at 921 Glory Drive, Waxahachie, Texas 75165,
by attaching a copy of the Plaintiffs’ First Amended Original Petition and First Set
of Discovery by securely fastening the citation with pleadings and orders to the
front door of the aforementioned premises. The Return of Service Affidavit was
filed into the record on December 15, 2014.
5
Appellees filed an Original Answer to the petition on December 30, 2014. In
said answer, appellees asserted that the appellant’s claims were time barred by the
applicable statute of limitations as appellants failed to use the necessary diligence
in securing service of process on appellees after the limitation period expired.
Since the filing of the appellees Original Answer, the parties have engaged
in discovery, including written discovery and the depositions of appellees in
Houston, Texas on July 23, 2015. Approximately eight and a half months after
filing the Original Answer and two months after appellees depositions, appellants
filed a Motion for Summary Judgment on September 17, 2015, solely based on an
alleged failure to use diligence in securing service of process on appellees after the
expiration of the statute of limitations.
Summary of Argument
The trial court erred as a matter of law when it granted the appellees Motion
for Summary solely based on appellees allegations of the appellants’ failure to use
diligence in securing service of process on the appellees.
6
Argument
The trial court ruled contrary to Texas law when finding the appellants were
not diligent in attempting to serve the appellees with service. This Honorable
Court stated in BP Auto., L.P. v. RML Waxahachie Dodge, L.L.C. NO. 01-12-
00085-CV (Tex. App., 9/18/14):
We review the trial courts summary judgments de novo. Joe v. Two Thirty
Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004).
…
Under the "traditional" summary-judgment standard, a summary judgment
should be granted only when the movant establishes that there is no genuine
issue as to any material fact and that it is entitled to judgment as a matter of
law. See TEX. R. CIV. P. 166a(c); Provident Life & Accident Ins. Co. v.
Knott, 128 S.W.3d 211, 215-16 (Tex. 2003).
In the case at bar, the appellees have failed to demonstrate that the appellants
were not diligent at serving them with the petition. The allegations made in the
summary judgment motion regarding the lack of timely service on the appellees
are not consistent with Texas law and principles of equity. The appellants made
consistent efforts to serve the appellees, trying to locate and serve them after
several changes of address were lodged by the appellees.
The Court of Appeals of Texas, Thirteenth District, Corpus Christi stated in
Gundermann v. Buehring, No. 13-05-278-CV (TX 2/2/2006) (TX, 2006) that:
To obtain a traditional summary judgment, a party moving for summary
judgment must show that no genuine issue of material fact exists and that the
party is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c);
Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995);
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In
7
reviewing the grant of a summary judgment, we must indulge every
reasonable inference and resolve any doubts in favor of the non-movant.
Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 549. In addition, we must
assume all evidence favorable to the non-movant is true. Johnson, 891
S.W.2d at 644; Nixon, 690 S.W.2d at 548-49. Statute of limitations is an
affirmative defense. Tex. R. Civ. P. 4. A properly pleaded affirmative
defense, supported by uncontroverted summary judgment evidence, may
serve as the basis for summary judgment. Roark v. Stallworth Oil & Gas,
Inc., 813 S.W.2d 492, 494 (Tex. 1991); Gant v. DeLeon, 786 S.W.2d 259,
260 (Tex. 1990); Taylor v. Thompson, 4 S.W.3d 63, 64 (Tex. App.-Houston
[1st Dist.] 1999, pet. denied). When a defendant moves for summary
judgment on an affirmative defense, he must conclusively prove all the
essential elements of the defense as a matter of law, leaving no issues of
material fact. Gant, 786 S.W.2d at 260; Montgomery v. Kennedy, 669
S.W.2d 309, 310-11 (Tex. 1984); Taylor, 4 S.W.3d at 65.
(Emphasis added).
To comply with the statute of limitations, a plaintiff must file suit within the
applicable limitations period and use diligence to serve the defendant with
process.1 If service is diligently effected after limitations has expired, the date of
service will relate back to the date of filing.2 Due diligence depends on: (1)
whether plaintiffs acted as ordinary prudent persons would act under the same
circumstances; and (2) whether plaintiffs acted diligently up until the time
defendant was actually served.3 Whether the plaintiff acted with due diligence is a
question of fact. 4 Only where the plaintiff offers no valid explanation for the delay
in service may the question of due diligence be answered as a matter of law.5
1 Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007).
2 Id.; accord Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990); Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 890 (Tex. 1975) (per
curiam).
3 Eichel v. Ulla, 831 S.W.2d 42, 44 (Tex. App.—El Paso 1992, no writ); accord Evans Am. Corp. v. Munter’s Moisture Control,
No. 01-92-01046-CV, 1993 WL 518607, (Tex. App.—Houston [1st Dist.] December 16, 1993, no writ) (not designated for
publication).
4 Eichel, 831 S.W.2d at 43.
5 Id. at 44.
8
In the present case, appellants exercised due diligence in attempting to serve
appellees by immediately having the citation issued with the last known address of
the appellees. The appellants made numerous attempts to serve the appellees at
their last known address. When the appellants discovered the correct address for
the appellees, appellants immediately amended the Petition and immediately had
the citation and petition reissued with the correct address. Upon receipt of the
reissued citation, appellants contacted the process server and once again attempted
service on the appellees (see attached Exhibit B in Appendix). When personal
service was not accomplished through the process server, appellees requested
substituted service in a timely fashion. Substituted service was accomplished and
appellees filed an answer. The issues and facts regarding the delay were relayed to
the trial court, which in violation of law, granted the appellees summary judgement
motion. The caselaw is clear that the trial court can do so only when the plaintiff
offers no valid explanation for the delay. In the case at bar, the appellants
attempted to serve the appellees numerous times. The appellees attempted to ‘duck
service’ in this matter, moving to different addresses throughout the state. The
appellants claims cannot be dismissed solely because the appellees were ‘ducking
service’, especially while the appellants were consistently attempting to locate and
serve the appellees. The trial courts judgment runs contrary to Texas law and
notions of equity.
9
Courts have consistently found that the amount of diligence that must be
used is “that diligence that an ordinary person would have used under the same
circumstances.” The trial court determined that the appellants had not been prudent
in attempting service on the appellees. This court must thusly determine what is
prudent in this situation. Again, the appellants attempted to serve the appellee
driver at his home shortly after filing the amended petition. Shortly after the
process server was unable to effectuate service, counsel for the appellants filed a
motion for alternative service thereby attempting to continue to prosecute this
matter. It is clear that counsel in this matter used due diligence to attempt to serve
the appellees. Counsel did not sit idly by and discontinue prosecuting the matter
by not continuing to attempt to achieve service.
The pressing issue for this Court in this situation is the time of “unexplained
inactivity.” When no explanation is offered, the courts are left with the
presumption that the inactivity is due to a lack of diligence and/or carelessness on
the part of the plaintiffs. Here, there is a clear and consistent pattern of activity that
negates the argument that there is a pattern of inactivity espoused by the appellees
and agreed with by the trial court. Courts have consistently been hesitant to dismiss
cases where litigants were moving toward achieving proper service, even if that
movement may not have been as brisk as the court would have preferred in order to
preserve the rights of the plaintiffs.
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Prayer
In conclusion, appellants pray that this Honorable Court reverse the trial
court's judgment in whole, denying the motion for summary judgment and reinstate
claims of the plaintiffs, pursuant to Rule 43.2.(c) of the Texas Rules of Appellate
Procedure. Appellants further pray that appellees bear all cost of these
proceedings.
11
Respectfully submitted:
H.L. HARPER & ASSOCIATES, L.L.C.
/s/ Vesta T. Armstrong
____________________________________
VESTA T. ARMSTRONG
Texas State Bar No. 00798240
1631 Elysian Fields Avenue
New Orleans, Louisiana 70117
(855) 880-4673 Office
(504) 322-3807 Facsimile
varmstrong@hlharperandassociates.com
and
EDWIN M. SHORTY, JR. & ASSOCIATES
A PROFESSIONAL LAW CORPORATION
/s/ Edwin M. Shorty, Jr.
EDWIN M. SHORTY, JR., Pro Hac Vice
Louisiana State Bar No. 28421
650 Poydras Street, Suite 2515
New Orleans, Louisiana 70130
(504) 207-1370 Office
(504) 207-0850 Facsimile
eshorty@eshortylawoffice.com
Counsel for Appellants
12
Appendix
Exhibit A Trial Court Judgment 10/16/2015
Exhibit B Affidavit of Special Process Server 12/12/2014
13
Certificate of Compliance – Word Count
1. This brief complies with the type-volume limitations of Rule 9.4(i)(3)
of the Texas Rules of Appellate Procedure because this brief contains
2,428 words, excluding the parts of the brief exempted by Rule
9.4(i)(1).
2. This brief complies with the typeface requirements of Rule 9.4(e) of
the Texas Rules of Appellate Procedure because this brief has been
prepared in a proportionally spaced in font size 14.
H.L. HARPER & ASSOCIATES, L.L.C.
/s/ Vesta T. Armstrong
____________________________________
VESTA T. ARMSTRONG
Texas State Bar No. 00798240
1631 Elysian Fields Avenue
New Orleans, Louisiana 70117
(855) 880-4673 Office
(504) 322-3807 Facsimile
varmstrong@hlharperandassociates.com
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10/29/20142:05:48PM
ChrisDaniel-DistrictClerk
HarrisCounty
CAUSE #201419704 EnvelopeNo:2996400
By:SONNIER,ARRONW
AFFIDAVIT FOR TRCP RULE 106
STATE OF TEXAS
COUNTY OF HARRIS
Before me, the undersigned authority, on this day personally appeared to me, who,
being by me duly sworn upon his oath, deposed and stated as follows:
My name is GREGORY D. HARPER. I am over the age of 18 years, a citizen of the
United States of America and have never been declared incompetent for any purpose. I
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have personal knowledge that the facts set forth in this affidavit are true and correct.
I am authorized by written order to serve citations and notices in all Harris District
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and Coimty Courts.
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On the of September 20141 was assigned process in the above referenced
cause styled Juan Soto vs.Jared Efiird I was instructed to attempt service upon
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defendant at 921 Glory Drive Waxahachie,texas 75165 This is in Ellis County,
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which I have determined to be his Abode. I have made the following attempts to
serve process to no avail:
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DATE AND TIME
09/18/14 7;00pm Da
REASON FOR NOT SERVING
Knock on Respondent door no answer attached my card to hisfrontdoor.
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09/20/14 9:30 am Respondent not in per adult female
09/23/14 8:30pm Respondent not in per his mother
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09/24/14 5:30pm Respondent not in per adult female who was not his mother
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" I have made diligent efforts to obtain personal service upon the named person at the above locations. I
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have made these attempts at various hours of the day. I have left my business card, but to date have heard
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nothing from this person. Based on the foregoing, I conclude that I will be unable to obtain good service
without an order directing me to serve anyone over the age of sixteen (16) years or directing me to firmly
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attach the process to the main entrance at the above location. Either of which means being reasonably
effective based on the circumstances I encountered to give said persons notice of the above referenced
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action."
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Further affiant sayeth not. ^ , » ro,/ i
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'FIANT SC#576
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Exp-08/31/2017
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My name is Gregory Harper my date of birth is 07/13/1951, and my address is 7510 Holly Hill Dr.
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Unit 127 Dallas,Texas 752311 declare under penalty of perjury that the foregoing is true and correct
of
Un
Executed in Dallas Coupty, State of Texas 24* Day of September 2014