AFFIRM in Part, REVERSE in Part, and REMAND; Opinion Filed February 13, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00030-CV
AMANDA HERRERA AND ISAAC RODRIGUEZ, Appellant
V.
LESTER PRICE, DECEDENT, BY AND THROUGH MARSHA ANN PRICE, HIS HEIR,
Appellee
On Appeal from the 86th Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 92271-86
MEMORANDUM OPINION
Before Justices Partida-Kipness, Pederson, and O'Neill1
Opinion by Justice O'Neill
Appellants Amanda Herrerra and Isaac Rodriguez appeal the trial court’s order granting
summary judgment to appellee Lester Price, Decedent, by and through Marsha Ann Price, his heir,
declaring appellants’ claims are barred by the statute of limitations and appellants did not
demonstrate diligence in serving appellee. In two issues on appeal, appellants contend (1) the
district court incorrectly determined appellant failed to use due diligence in effecting service on
appellee such that the statute of limitations barred suit; and (2) the district court incorrectly
1
The Hon. Michael J. O'Neill, Justice, Assigned
determined the individual claims of Isaac Rodriguez, a minor at the time of the accident, were also
barred by limitations.
For the reasons stated below, we decide against appellants on their first issue. For the
second issue, we decide in favor of appellants with regard to pain and suffering alleged by
Rodriguez. Rodriguez was a minor when the initial cause of action occurred. The lawsuit was filed
and service was properly rendered within two years of Rodriguez reaching the age of majority.
Therefore, on Rodriguez’s pain and suffering claims, we find limitations had not yet tolled.
However, we decide against appellants on the remaining claims in issue two, as under Texas law
the right to recover for (1) medical expenses and (2) property damage and loss of use incurred on
behalf of a minor are causes of action belonging to the parents. Therefore, limitations for those
claims are unrelated to Rodriguez reaching the age of majority. We remand the case in its entirety
to the trial court for proceedings consistent with this opinion.
I. Factual and Procedural Context
In December 2014 Amanda Hererra, Individually and as Next Friend of Isaac Rodriguez,
a Minor, filed suit against Lester Price and Affirmative Insurance. The suit alleged that on
September 24, 2013 Herrera was driving her vehicle with her son Isaac as a passenger when the
vehicle was hit from behind by Lester Price’s vehicle. Appellants requested damages. A citation
was issued to Price the day suit was filed. Next, in early February 2015, appellants attempted to
serve Price by mailing a copy of the original petition to him by certified mail, return receipt
requested. The citation was received and signed for two weeks later. However, it was signed by
“Kerrie Gothard”2 as an “agent” of Lester Price. The attempted service was ineffective and invalid.
2
At the time of filing, Gothard was the girlfriend of Marsha Price’s son. She was not legally authorized to accept service on Lester Price’s
behalf. See TEX. R. CIV. P. 107(11)(C).
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One week later, Affirmative Insurance filed a Motion to Dismiss under Texas Rule of Civil
Procedure 91. A hearing was set for the motion on March 12, 2015. On March 6, 2015 Plaintiffs
filed their First Amended Petition, nonsuiting Affirmative Insurance from the case. Despite the
nonsuit six days prior, Affirmative Insurance went forward with the March 12 hearing and obtained
a signed dismissal order and an award of $1000 attorney’s fees. The order did not state that claims
against Price remained pending. On March 16, 2015, notice of the dismissal order was sent to
Plaintiff’s counsel at Morris Law Firm. At this time, both the Kaufman County District Clerk and
Morris Law Firm closed their files on the case.
The Morris Law Firm’s file remained closed for over a year. On March 24, 2016 the firm
received a letter from one of Herrera and Rodriguez’s medical providers inquiring about the status
of this case. Micheal Thomas, a paralegal at the firm, examined the file and saw the dismissal
order. In early April 2016, Thomas spoke with Robert Lamb, an outside attorney who “previously
worked with Daniel Morris on other litigation files.” Thomas asked Lamb to review the file “and
let me know if anything could be done about the dismissal and award of $1,000 in attorney’s fees.”
In late April 2017 Thomas advised Lamb that a motion should be filed to re-open the file and set
aside the award of attorney’s fees.
On May 6, 2016 Angela May began employment as an attorney with the Morris Firm.
Within a week of her employment with the firm she was assigned Herrara and Rodriguez’s file
and told to prepare a motion to re-open the case. May and Lamb discussed preparing motions to
re-open the file and set aside the attorney’s fees award. In June 2016 Lamb emailed a form motion
and order to May. May prepared the motions and orders, and Lamb approved them on September
19, 2016. May attempted to contact Cherie Batsel, counsel for Affirmative Insurance, multiple
times. The two spoke on the phone on September 26, at which point Batsel told May she opposed
the motions, was no longer handling the file, and Affirmative Insurance was in receivership. On
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October 3, 2016 May finalized both motions and filed them with the court. A week later, she
learned Lester Price is deceased. On November 21, 2016 a hearing was held on appellant’s motion
to administratively reopen the case and set aside the award of attorney’s fees. The court granted
the motions at the hearing and signed the orders the following day. Almost four months later,
appellants filed a Second Amended Petition on March 15, 2017. Scire Facias is issued the
following day. Eventually Marsha Ann Price is properly served on April 6, 2017. Appellee
subsequently filed an answer and an amended answer, asserting statute of limitations as an
affirmative defense. Appellee filed a motion for summary judgment on July 24, 2017. The motion
alleged appellants’ negligence claims were barred by the statute of limitations. Further, it
contended appellants failed to use due diligence in serving citation. Appellant filed a response on
September 11, 2017 and Appellee filed a reply on September 13, 2017. Appellant filed an objection
to the reply on September 18, 2017. After a hearing, the trial court signed an order granting
appellee’s motion for summary judgment, finding claims were barred by the statute of limitations.
Appellant filed a motion for a new trial and a notice of appeal to this court.
II. Summary Judgment
a. Standard of Review
An appellate court reviews a trial court's summary judgment de novo. Travelers Ins. Co v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010). A traditional summary judgment must show no
genuine issue of a material fact exists and, therefore, the moving party is entitled to judgment as a
matter of law. Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 831
(Tex. App.–Dallas 2014, no pet.) (citing TEX. R. CIV. P. 166A(C)). In conducting its review, the
appellate court considers all the evidence in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if a reasonable fact finder could and disregarding contrary
evidence unless a reasonable factfinder could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d
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572, 582 (Tex. 2006). For a defendant to prevail on a traditional motion for summary judgment,
he must either disprove at least one element of the plaintiff's claim as a matter of law, or
conclusively establish all elements of an affirmative defense. See KPMG, 988 S.W.2d at
748; Woodhaven Partners, 422 S.W.3d at 831. If the defendant meets his burden, the burden then
shifts to the plaintiff to expressly present any grounds in avoidance of summary judgment and
present any summary judgment proof necessary to raise a fact issue. See City of Houston v. Clear
Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); KPMG, 988 S.W. 2d at 748; Woodhaven
Partners, 422 S.W.3d at 831.
b. Diligence
Appellants contend they produced sufficient evidence to create a fact issue as to whether
they exercised due diligence in serving Lester Price. Accordingly, appellants claim diligence can
be shown by attempts at serving process on Lester Price as well as explanations for extended points
of time in which no attempt at service of process is made. Appellants argue any lack of diligence
may be excused by “clerical error, miscommunication, and inadvertence.”
i. Applicable Law
A personal injury lawsuit is governed by a two-year statute of limitations. See TEX. CIV.
PRAC. & REM. CODE ANN § 16.003(A). However, the death of a person against whom or in whose
favor there may be a cause of action suspends the running of an applicable statute of limitations
for twelve months after the death. TEX. CIV. PRAC. & REM. CODE ANN. § 16.062. Merely filing a
lawsuit is not sufficient to avoid the expiration of a statute of limitations. See Boyattia v.
Hinojosa, 18 S.W.3d 729, 733 (Tex. App.—Dallas 2000, pet. denied). To “bring suit,” a plaintiff
must file his action and have the defendant served with process. Id. A timely filed suit will not
interrupt the running of limitations unless the plaintiff exercises due diligence in the issuance and
service of citation. Murray v. San Jacinto Agency, Inc. 800 S.W.2d 826, 830 (Tex. 1990). If service
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is diligently effected after limitations has expired, the date of service will relate back to the date of
filing the suit. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990); see Boyattia, 18 S.W.3d at
733. The duty to exercise diligence continues until service of process is achieved. Id. Whether a
plaintiff exercised due diligence in obtaining the issuance and service of citation is usually a fact
issue; however, if no excuse is offered for a delay in procuring service of citation, or if the lapse
of time and the plaintiff's acts are such as conclusively negate diligence, a lack of diligence will
be found as a matter of law. Perry v. Kroger Stores, 741 S.W.2d 533, 534 (Tex. App.—Dallas
1987, no writ). Texas courts have consistently held that lack of diligence may be shown based on
unexplained lapses of time between the filing of the suit, issuance of the citation, and service of
process. See Boyattia, 18 S.W.3d at 733. When a defendant has affirmatively pled the limitations
defense and shown service was effected after the limitations period expired, the burden shifts to
the plaintiff to explain the delay. It is then the plaintiff's burden to present evidence regarding the
efforts that were made to serve the defendant. Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007).
Diligence is determined 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.” Id. The question of diligence in effecting service is one of fact, and is
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.
ii. Application of Law to the Facts
In this case, the record reflects service was not properly rendered until after the statute of
limitations ran. The motor vehicle accident at issue occurred and limitations began to run on
September 24, 2013. Therefore, under traditional circumstances, limitations would have expired
two years later, on September 24, 2015. However, Defendant Lester Price died on July 26, 2014,
tolling limitations for twelve months. As a result, limitations did not expire until September 24,
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2016. TEX. CIV. PRAC. & REM. CODE ANN. § 16.006(a). However, Marsha Ann Price was not
properly served until April 6, 2017, well after limitations expired.
Thus, the burden shifted to appellants to provide an explanation for the delay. Appellants
contend they produced sufficient evidence to create a fact issue as to whether they exercised due
diligence in serving appellee. Accordingly, appellants claim this can be shown by attempts at
serving process on Lester Price as well as explanations for extended points of time in which no
attempt at service of process is made. Appellants argue a lack of diligence may be excused by
“clerical error, miscommunication, and inadvertence.” Upon examining the evidence, we disagree.
Proper service was not effectuated until more than two years later, and appellants have not shown
they acted diligently up until the time appellee was served. On the contrary, Appellant’s case file
was closed for over a year of the relevant period without any efforts made toward effectuating
service, let alone efforts demonstrating diligence. Appellants contend their ineffective attempt to
serve Lester Price by mail in February 2015 was “due to a clerical error and miscommunication.”
However, appellants’ actions after the ineffective service do not demonstrate diligence. For
example, there is no evidence in the record showing appellants attempted to verify service or that
appellants filed a return receipt of service with the court. The record reflects that on March 24,
2016 the Morris Law Firm received a letter from one of appellants’ medical providers inquiring
about the status of the case. Only then did appellants begin reexamining the case. Almost an
additional month passed before appellants determined motions should be filed to reopen the case
and set aside the attorney’s fees award. Moreover, as May’s affidavit shows, she was assigned the
case upon beginning work with the firm in early May 2016. However, the motions and orders were
not filed until October 2016, almost five months later. Despite learning of Lester Price’s death the
week after filing and the court granting the orders to reopen the case and set aside fees, appellants
do not file anything further or demonstrate any attempts to effectuate service until the middle of
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March 2017 when they file their second amended petition and Scire Facias is issued. Marsha Price
is not served until April 2017, well after September 24, 2016 when limitations expired.
Appellants rely on three cases from other Texas Courts of Appeals to support their claims
of diligence, each of which is distinguishable from this one. First, appellants cite Harrell v.
Alvarez, 46 S.W.3d 483, 486 (Tex. App.—El Paso 2001, no pet.). In Harrell, the plaintiffs filed
suit within the limitations period and simultaneously filed a motion for substitute service, asserting
that despite diligent efforts, they could not locate defendant for personal service of citation. Id.
The court found that the clerk in Harrell took three weeks to issue the citation. Id. The court
determined this delay was not unreasonable delay in light of the Thanksgiving holiday and that
service of the out-of-state defendants was reasonably prompt. Id. In the present case, service was
ineffectively rendered and no motion for substitute service was filed. Instead, appellee’s estate was
served more than two and a half years after the initiation of the lawsuit and more than six months
after limitations ran.
Next, appellants cite Hodge v. Smith, 856 S.W.2d 212, 216 (Tex. App.—Houston [1st
Dist.] 1993, writ denied). While the court in Hodge found a 27-month delay after limitations ran
was not unreasonable, the plaintiff in that case made many efforts to request service, including
requesting substitute service by publication. Id. Moreover, the plaintiff in that case had a card from
the clerk’s office indicating service by publication had been successful and merely continued to
attempt to perfect service on the defendant to ensure the insurance company would be made aware
of the lawsuit in order to offer a defense. Id. No such efforts were made in this case.
The final case appellants cite in support of their contention is Valdez v. Charles Orsinger
Buick Co., 715 S.W.2d 126, 128 (Tex. App.—Texarkana 1986, no writ). In Valdez, the court found
a fact issue regarding due diligence when, according to normal practice under the circumstances
of the case, counsel filed a petition and paid a service fee to the court to perfect service. Evidence
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in Valdez showed counsel’s secretary was cited a fee amount by the court clerk. He paid the cited
amount, unaware it was only enough to cover citation for one of two defendants. Id. Upon learning
service was not perfected and the citation fee to serve the second defendant had not been paid, he
paid the fee. Service was perfected shortly thereafter. Id. Appellants in the present case did not
rely on the court to serve citation and did not immediately effectuate service upon learning it had
been improperly rendered. Based on the aforementioned evidence, we find the record shows
appellants did not raise a fact issue on diligence or affirmatively establish due diligence as a matter
of law.
c. Pain and Suffering
i. Applicable Law
In Texas, a minor has a well-defined common law cause of action to sue for injuries
negligently inflicted by others. Sax v. Votteler, 648 S.W.2d 661, 666 (Tex. 1983) (Citing Texas &
P. Ry. Co. v. Morin, 66 Tex. 225, 18 S.W. 503 (1886); Houston & Great Northern R.R. Co. v.
Miller, 51 Tex. 270 (1879); Fall v. Webber, 47 S.W.2d 365 (Tex. Civ. App.—Dallas 1932, writ
ref'd). A child's cause of action, however, is distinctly separate from the parent's right to recover
damages for injuries to children. A child may recover damages for pain and suffering as well as
other damages he may accrue after he reaches the age of majority. Sax v. Votteler, 648 S.W.2d at
666 (Tex. 1983), (citing Texas & P. Ry. Co. v. Malone, 15 Tex. Civ. App. 56, 38 S.W. 538, 539
(Tex.Civ.App.1896, writ ref'd)). For example, a child is entitled to recover loss of earning capacity,
commencing upon the date of attaining majority or removal of disabilities. However, since the
services and earnings of an unemancipated minor belong to his parents, an infant may not recover
for diminution of his earning capacity during the period intervening between the injury and his
attainment of majority. Sax v. Votteler, 648 S.W.2d at 666 (Tex. 1983). Under Texas law,
limitations on a minor’s claims are tolled until the minor reaches age of majority. TEX. CIV. PRAC.
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& REM. CODE ANN. § 16.001(a)(1). Historically, in Texas, the right to recover for medical costs
incurred on behalf of the minor is a cause of action belonging to the parents, unless such costs are
a liability as to the minor's estate. Sax v. Votteler, 648 S.W.2d at 666 (Tex. 1983). (citing Bering
Mfg. Co. v. Peterson, 28 Tex. Civ. App. 194, 67 S.W. 133, 135 (Tex. Civ. App.1902, writ dism'd)).
d. Application of Law to the Facts
The original lawsuit in this case filed when Rodriguez was fifteen years old. As he was a
minor, the statute of limitations on his claims for physical pain and mental anguish was tolled. It
began to run on his eighteenth birthday, February 10, 2016. Suit was filed and service of process
issued by April 6, 2017, less than two years after Rodriguez reached the age of majority. Therefore,
we find that limitations had not yet tolled on Rodriguez’s physical pain and mental anguish claims.
See TEX. CIV. PRAC. & REM. CODE ANN. § 16.001(a)(1). We reverse the order of summary
judgment with respect to those claims only. However, we decide against appellants on the
remaining claims in issue two, as the right to recovery on those claims belongs to the parents. See
Sax v. Votteler, 648 S.W.2d at 666.
III. Conclusion
Having addressed appellants’ two issues, we affirm the trial court’s granting of the
traditional motion for summary judgment with respect to all claims, except for Isaac Rodriguez’s
claims as to pain and suffering. We reverse and remand Rodriguez’s pain and suffering claims to
the trial court.
/Michael J. O'Neill/
MICHAEL J. O'NEILL
JUSTICE, ASSIGNED
180030F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
AMANDA HERRERA AND ISAAC On Appeal from the 86th Judicial District
RODRIGUEZ, Appellant Court, Kaufman County, Texas
Trial Court Cause No. 92271-86.
No. 05-18-00030-CV V. Opinion delivered by Justice O'Neill.
Justices Partida-Kipness and Pederson
LESTER PRICE, DECEDENT, BY AND participating.
THROUGH MARSHA ANN PRICE, HIS
HEIR, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part. We REVERSE the portion of the trial court's
judgment on the pain and suffering claim of appellant Isaac Rodriguez. We REMAND this
cause to the trial court for further proceedings as to that claim. In all other respects, the trial
court's judgment is AFFIRMED. It is ORDERED that each party bear its own costs of this
appeal.
Judgment entered this 13th day of February, 2019.
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