Opinion
NO. 14-16-00829-CV
02-27-2018
EBONY HARRIS AND ROCHELLE WILEY, Appellants v. GRAHAM BELL AND TINA BELL, Appellees
On Appeal from the 412th District Court Brazoria County, Texas
Trial Court Cause No. 76077-CV
MEMORANDUM OPINION
Appellants Ebony Harris and Rochelle Wiley challenge the trial court's grant of summary judgment in favor of appellee Graham Bell based on appellants' failure to exercise due diligence in procuring citation and effecting service of process on Bell before the statute of limitations expired. We affirm.
BACKGROUND
Appellants and Bell were in a car accident on June 9, 2012, in Brazoria County, Texas. The parties agree and we conclude that appellants' claims arising from the accident accrued on the date of the accident and were subject to a two-year statute of limitations. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon 2017). The limitations deadline for appellants' claims was June 9, 2014. See id.
Appellants filed suit against Bell on February 25, 2014, asserting negligence claims arising from the June 2012 car accident.
Appellants' attorney retained private investigator Jon Manning to assist with serving process on Bell in June 2014. According to Manning's affidavit, he "first received information on Defendant Graham Bell from [appellants' attorney] June 3, 2014." Appellants' attorney informed Manning that Bell resided in Kemah, Texas. Manning made five attempts to verify Bell's Kemah address in June 2014, all of which were unsuccessful.
The trial court issued a citation for Bell on June 18, 2014. The citation was returned unserved on June 26, 2014.
According to his affidavit, Manning continued his efforts to verify Bell's Kemah address and made two or three visits to the Kemah address each month from July 2014 through July 2015. Manning's affidavit states that all of his visits to Bell's Kemah address were unsuccessful. Based on his research, Manning concluded that Bell resided at the Kemah address or in London.
Manning visited Bell's Kemah address 35 times between June 2014 and July 2015. Manning also visited an address owned by Bell's wife in Galveston, Texas. Manning's attempt to verify the Galveston address was unsuccessful.
The trial court issued a notice of intent to dismiss appellants' suit on November 25, 2014, citing appellants' failure to effect service of process on Bell. Appellants filed a motion to retain, asserting that their attempts to serve Bell were unsuccessful because Bell "has been out of the country and his local address is in a gated community." The trial court signed an order retaining appellants' case on January 15, 2015.
Appellants' attorney states in his affidavit that, in January 2015, it was his understanding that Bell had "multiple address[es]," one of which was in London, England. Appellants' attorney requested service abroad through the United States Department of Justice.
According to the affidavit filed by paralegal James Conley, he assisted appellants' attorney with the overseas search for Bell. Conley began his efforts in June 2014 and states that "[t]he search for the appropriate address was tedious and took several months of research."
Appellants filed their first amended petition in April 2015 and asserted a claim against Tina Bell, Bell's wife, for negligent entrustment. Service was effected and Tina filed her answer in May 2015. Tina filed a motion for partial summary judgment asserting that appellants' suit against her was barred by the applicable statute of limitations. The trial court signed an order granting Tina's summary judgment motion in August 2015.
The trial court issued a second citation for Bell on August 13, 2015. Service on Bell was effected on August 25, 2015. Bell filed an answer to appellants' petition.
Appellants' case was dismissed for want of prosecution on January 4, 2016. Appellants filed a motion to reinstate, which the trial court granted in an order signed on March 21, 2016.
Bell filed a motion for traditional summary judgment asserting that appellants' claims were barred by the applicable statute of limitations. See Tex. R. Civ. P. 166a(c). Bell's summary judgment motion was set for an oral hearing on July 18, 2016.
Appellants filed an agreed motion for leave to respond to Bell's summary judgment motion on July 12, 2016. Appellants attached six exhibits to their summary judgment response, including the affidavits from appellants' attorney and private investigator Manning discussing their attempts to locate and serve Bell.
Appellants filed a second motion for leave on July 14, 2016, requesting permission to file as summary judgment evidence an affidavit from paralegal James Conley discussing his efforts to assist with the search for Bell. There is no indication that Bell or his attorney consented to appellants' second motion for leave and the trial court did not rule on either of appellants' motions.
Appellants' summary judgment response argued that their efforts to serve Bell were pursued with diligence. Appellants' response did not assert that the limitations period applicable to their claims was tolled for any reason.
The trial court signed an order granting Bell's summary judgment motion on July 18, 2016. Appellants filed a motion for new trial in August 2016, asserting that (1) appellants raised a material fact issue regarding whether they diligently attempted to serve Bell; and (2) the limitations period applicable to their claims was tolled by the number of days Bell was absent from the state. See Tex. Civ. Prac. & Rem. Code Ann. § 16.063 (Vernon 2015).
The trial court did not rule expressly on appellants' motion for new trial, which was overruled by operation of law. Appellants timely appealed.
STANDARD OF REVIEW
A summary judgment is reviewed de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When reviewing a summary judgment, we examine the record in the light most favorable to the nonmoving party, indulging every reasonable inference and resolving any doubts in the nonmoving party's favor. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015).
The party moving for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Fielding, 289 S.W.3d at 848. When a defendant moves for summary judgment on an affirmative defense, it must conclusively prove all the essential elements of its defense as a matter of law. Sharp v. Kroger Tex. L.P., 500 S.W.3d 117, 119 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
ANALYSIS
Appellants challenge the trial court's summary judgment and assert that (1) their efforts to serve process on Bell were pursued with diligence; and (2) the applicable statute of limitations was tolled by the number of days Bell was absent from the state. We address each argument in turn.
I. Diligence in Effecting Service of Process
Appellants effected service on Bell approximately 18 months after filing suit and 14 months after the statute of limitations applicable to their claims expired. Appellants assert that their suit nonetheless was timely because their efforts to serve Bell were pursued with diligence.
A personal injury suit must be brought within two years from the cause of action's accrual. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a). A timely filed suit does not suspend 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) (per curiam); Sharp, 500 S.W.3d at 119. "If service is diligently effected after limitations has expired, the date of service will relate back to the date of filing." Proulx, 235 S.W.3d at 215.
When a defendant affirmatively pleads a limitations defense and shows that service was effected after limitations expired, it is the plaintiff's burden to show the efforts made to serve the defendant and "'explain every lapse in effort or period of delay.'" Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009) (quoting Proulx, 235 S.W.3d at 216). If the plaintiff raises a material fact issue regarding the diligence of service efforts, the burden shifts to the defendant to show why, as a matter of law, the plaintiff's explanation is insufficient. Sharp, 500 S.W.3d at 120.
Due diligence requires that a plaintiff "use the degree of diligence that an ordinarily prudent person would have used under the same or similar circumstances." Id. Our due diligence inquiry examines the (1) time taken to procure citation and service; and (2) type of effort or lack of effort the plaintiff expended in effecting service. Webster v. Thomas, 5 S.W.3d 287, 289-90 (Tex. App.—Houston [14th Dist.] 1999, no pet.). "The measure of diligence begins from the time the suit is filed and an explanation is needed for every period of delay." Sharp, 500 S.W.3d at 120.
The question of diligence is ordinarily a question of fact but, if no excuse is offered for a delay, lack of diligence may be found as a matter of law. Proulx, 235 S.W.3d at 216.
"Texas courts have consistently held that due diligence is lacking as a matter of law when there are unexplained lapses of time between filing suit, issuance of citation, and service." Sharp, 500 S.W.3d at 120; see, e.g., Boyattia v. Hinojosa, 18 S.W.3d 729, 732, 734 (Tex. App.—Dallas 2000, pet. denied) (three-month delay in service where "[t]he clerk's office did not deliver . . . citation to a constable for service;" due diligence lacking because plaintiff's attorney did not "make an effort to ensure that delivery was accomplished"); Taylor v. Thompson, 4 S.W.3d 63, 65-66 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (due diligence lacking where plaintiff offered "no excuse" for three-month delay between filing of suit and issuance of citation); Webster, 5 S.W.3d at 288, 291 (five-month delay sufficient to show lack of due diligence; attorney's efforts to procure service were "careless and not persistent"); Li v. Univ. of Tex. Health Sci. Ctr. at Houston, 984 S.W.2d 647, 652-53 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (statute of limitations barred claim where plaintiff failed to explain three-month lapse between filing of suit and service of process).
Here, approximately 18 months elapsed from the February 2014 filing of appellants' suit until Bell was served with process in August 2015.
Appellants' summary judgment response and the evidence detailing their attempts to serve Bell during this 18-month period were not timely filed. Tex. R. Civ. P. 166a(c) (nonmovant must file and serve its response and evidence at least seven days before the summary judgment hearing). The record does not reflect that the trial court granted appellants leave to file an untimely response or evidence. See id. (a response or evidence filed less than seven days before the summary judgment hearing prohibited "[e]xcept on leave of court"). Appellants' response and summary judgment evidence were not properly before the trial court and we presume that the trial court did not consider the untimely filings in rendering summary judgment. See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996); Brown v. Shores, 77 S.W.3d 884, 886 (Tex. App.—Houston [14th Dist.] 2002, no pet.). Bell affirmatively pled a limitations defense and he showed that service was effected after the limitations period expired. Because appellants' response and evidence were untimely, Bell was entitled to summary judgment on this basis alone. See Ashley, 293 S.W.3d at 179.
Nonetheless, even if we were to consider appellants' untimely filings, the evidence is insufficient to explain appellants' delays in effecting service on Bell.
Appellants' summary judgment evidence shows the efforts made to effect service on Bell from June 2014 through August 2015, including private investigator Manning's research and monthly attempts to verify Bell's Kemah address, and actions taken to serve process on Bell in London. Appellants provided no explanation for the three-month, nine-day delay between the filing of suit and the hiring of private investigator Manning on June 3, 2014.
Appellants' attorney briefly addresses this delay in his affidavit:
[Appellants'] counsel then attempted to refile the Original Petition along with the request for citation on February 25, 20[14]. After a review of the file [appellants] then requested service on June 16, 20[14], again.This statement does not explain the reason for the delay or detail any efforts appellants undertook to effect service on Bell during this time. At most, this statement suggests that a mistake prevented the issuance of Bell's citation when the original petition was filed — a mistake noticed when appellants' attorney "review[ed] the file."
Diligence is measured from the filing of suit and "an explanation is needed for every period of delay." Sharp, 500 S.W.3d at 120 (emphasis added). Appellants' failure to explain the approximately three-month delay between their filing of suit and retention of private investigator Manning is sufficient to show a lack of diligence as a matter of law. See Boyattia, 18 S.W.3d at 732, 734; Taylor, 4 S.W.3d at 65-66; Webster, 5 S.W.3d at 291; Li, 984 S.W.2d at 652-53. Moreover, even if this delay was caused by a mistake — a mistake by appellants' attorney or the clerk's office — the failure to take any action to effectuate service during this period negates a showing of diligence. See Boyattia, 18 S.W.3d at 734 (clerk's failure to issue citation caused three-month delay in service; court concluded that plaintiff's "failure to act during the clerk's three-month delay constitutes a lack of diligence as a matter of law").
II. Tolling
Appellants assert that the limitations period applicable to their claims was tolled by the number of days Bell was absent from the state. See Tex. Civ. Prac. & Rem. Code Ann. § 16.063.
Appellants did not assert this argument in their summary judgment response or at the hearing held on Bell's motion. Appellants instead waited until their motion for new trial to raise the issue of statutory tolling. This does not preserve the issue for appellate review. See Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797-98 (Tex. 2008) (per curiam) (argument first raised by nonmovant in post-judgment filing did not preserve argument for appeal); Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 467 (Tex. 1998) (party waived reliance on argument that it asserted for first time in motion for new trial). We do not address appellants' statutory tolling argument.
CONCLUSION
We affirm the trial court's July 18, 2016 final judgment and conclude that appellants did not exercise due diligence in effecting service of process on Bell.
/s/ William J. Boyce
Justice Panel consists of Chief Justice Frost and Justices Boyce and Jewell.