Opinion
NO. 14-15-01034-CV
03-07-2017
MICHELLE LETHBRIDGE, Appellant v. COURTNEY STOUT AND TAYLOR STOUT, AS CO-EXECUTORS OF THE ESTATE OF BOB STOUT, AND RODERICK SMALL, Appellees
On Appeal from the 269th District Court Harris County, Texas
Trial Court Cause No. 2014-14167
MEMORANDUM OPINION
Michelle Lethbridge appeals from the trial court's grant of summary judgment, on statute of limitations grounds, against her personal injury claims against Roderick Small. In a single issue, Lethbridge challenges the trial court's determination that as a matter of law, she failed to use due diligence in perfecting service of citation on Small. We affirm.
Lethbridge nonsuited her claims against the other defendants below, Courtney Stout and Taylor Stout, as co-executors of the estate of Bob Stout, who were substituted in as parties after the death of defendant Bob Stout. These nonsuited parties are not parties to this appeal.
Facts
The parties essentially agree on the procedural history of this case as supported by the record. In her pleadings, Lethbridge alleged that she and Small were involved in an automobile collision on April 3, 2012. She accused Small of negligence, negligence per se, and gross negligence in causing the collision. These claims are subject to a two-year statute of limitations, so the statutory period expired on April 4, 2014.
Lethbridge filed her original petition on March 17, 2014, citation issued the same day, and an agent for Lethbridge, Edward Johnson, collected the citation on March 20, 2014. According to Johnson's affidavits, he attempted service on March 20 at the address for Small listed in the police incident report. A woman at the address stated that she had lived there for four months and did not know Small. On March 29, 2014, Johnson attempted service at a different address: 3712 12th Street in Brookshire, Texas. He heard movement within the house, but when no one came to the door, he left his contact information. Johnson attempted service again at this address on April 1 and encountered a man whom he believed was Small's brother. According to Johnson, the man telephoned Small's mother and asked her where Small could be found, but she said she did not know. Johnson left his contact information with both Small's alleged brother and mother.
Lethbridge filed an amended petition adding Bob Stout as a defendant and alleging that Stout owned the vehicle Small was driving and that Small was acting in the course and scope of his employment with Stout at the time of the collision.
Fourteen months after the previous attempt, a new agent for Lethbridge attempted service on Small on June 1 and June 4, 2015, but was unsuccessful. However, the agent spoke on the telephone to someone representing himself to be Small who said he knew she was trying to deliver a legal document and that he would not accept it.
Another agent for Lethbridge went to the same address later on June 4 and encountered a man who said that Wayne Small lived at the residence, but the man did not know a Roderick Small. The next day, the agent made another unsuccessful service attempt at the same address and also spoke on the telephone to someone representing himself to be Small's brother. This person allegedly said that he would pass along contact information to Small, but nothing apparently came from this contact.
On June 15, 2015, Lethbridge filed a Motion for Substituted Service, which the trial court granted, and service was perfected on July 8, 2015. Small thereafter filed a motion for summary judgment contending that Lethbridge's claims were barred by the statute of limitations because she had failed to exercise due diligence in the service of citation. The trial court granted the motion, and this appeal followed.
Standards of Review
We review de novo a trial court's grant of summary judgment. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). In a traditional motion for summary judgment, such as was granted here, the movant has the burden of establishing that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Id. (citing Tex. R. Civ. P. 166a(c)). When a defendant moves for summary judgment on an affirmative defense, such as the statute of limitations, it must conclusively prove all the essential elements of the defense as a matter of law, leaving no issues of material fact. Frost Nat'l Bank v. Burge, 29 S.W.3d 580, 587 (Tex. App.— Houston [14th Dist.] 2000, no pet.). We consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See Fielding, 289 S.W.3d at 848. The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).
A suit for personal injuries must be brought within two years from the time the cause of action accrues. See Tex. Civ. Prac. & Rem. Code § 16.003(a). A timely filed suit, however, 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. Once a defendant has affirmatively pleaded the limitations defense and shown that service was effected after limitations expired, the burden shifts to the plaintiff to explain the delay. Id. at 216. 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. 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.
A plaintiff is not required to use the highest degree of diligence to procure service but is required to use the degree of diligence that an ordinarily prudent person would have used under the same or similar circumstances. Sharp v. Kroger Tex., L.P., 500 S.W.3d 117, 120 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Generally, the question of diligence is a question of fact, but if no excuse is offered for a delay in the 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. Id. 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. Id. Resolving the question of due diligence involves consideration of both the time required and the effort expended to procure service. Id. at 120-21.
Analysis
The key concern in the chronology of Lethbridge's attempts to serve citation on Small is the period of fourteen months between attempted service on April 1, 2014, and attempted service at the same address on June 1, 2015. Lethbridge filed her original petition timely and immediately attempted service without success, but after three failed attempts, she let fourteen months pass before making another attempt.
It appears that during this time, Lethbridge was engaged in settlement negotiations with Stout that ultimately proved fruitless. Lethbridge does not, however, cite any authority or make any argument supporting the notion that engaging in settlement negotiations with one defendant somehow tolls the running of the statute in regards to another defendant. Indeed, we have previously held that absent an agreement to delay service, settlement negotiations—even with the unserved defendant—cannot establish due diligence. See id. at 121 ("Unilaterally waiting to serve a defendant during settlement negotiations is not due diligence.").
Lethbridge emphasizes instead the evidence indicating Small was aware of the attempts to serve him and actively avoided such service. In support, she quotes the Texas Supreme Court in Proulx, where it concluded that "[i]n light of the evidence that was presented regarding Proulx's continuous investigation and repeated service attempts, coupled with evidence that Wells was deliberately avoiding service, we conclude that Wells failed to conclusively establish lack of diligence." 235 S.W.3d at 217. Lethbridge's reliance on Proulx fails because, even if Small was deliberately avoiding service, she neglected to establish continuous investigation and service attempts until service was perfected. In Ashley v. Hawkins, the Texas Supreme Court distinguished Proulx and concluded that an unexplained eight-month gap in service attempts established a lack of due diligence as a matter of law. 293 S.W.3d 175, 180-82 (Tex. 2009); see also Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (finding a lack of due diligence where evidence showed unexplained gaps in attempted service of six, twelve, and twenty months and citing cases finding a lack of due diligence based on "unexplained lapses" of 3¾, 6, 7?, 10, and 17½ months). Based on these precedents and the evidence presented in this case, we hold that Lethbridge's fourteen-month period of delay demonstrated a lack of due diligence as a matter of law.
Because the record demonstrates as a matter of law that Lethbridge failed to exercise due diligence in serving citation on Small, the trial court did not err in granting summary judgment based on the running of the statute of limitations. See Sharp, 500 S.W.3d at 120. Accordingly, we overrule Lethbridge's sole issue.
We affirm the trial court's judgment.
/s/ Martha Hill Jamison
Justice Panel consists of Justices Jamison, Wise, and Jewell.