Auten v. Dj Clark, Inc.

• Decision Date: 02 November 2006
• Docket Number: No. 14-05-00393-CV.,14-05-00393-CV.
• Citation: 209 S.W.3d 695
• Parties: Evelyn AUTEN and Eldon Auten, Appellants, v. DJ CLARK, INC., d/b/a Double Arches Corporation, Donald E. Clark, and Janet C. Clark, Appellees.
• Court: Texas Court of Appeals

209 S.W.3d 695

Evelyn AUTEN and Eldon Auten, Appellants, v. DJ CLARK, INC., d/b/a Double Arches Corporation, Donald E. Clark, and Janet C. Clark, Appellees.

No. 14-05-00393-CV.

Court of Appeals of Texas, Houston (14th Dist.).

November 2, 2006.

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Sanford B. Kahn, Houston, for appellants.

Andrea N. Moore, Houston, for appellees.

Panel consists of Justices HUDSON, FOWLER, and SEYMORE.

OPINION

CHARLES W. SEYMORE, Justice.

Appellants, Evelyn Auten and Eldon Auten ("the Autens"), sued appellees, D.J. Clark, Inc. d/b/a Double Arches Corporation, Donald E. Clark, and Janet C. Clark (collectively "the Clarks"), for personal injuries. The Autens filed suit before limitations expired, but they did not serve the Clarks until more than a year after limitations expired. The trial court granted summary judgment in favor of the Clarks on the ground that the Autens' suit was barred by the statute of limitations because they did not exercise due diligence to serve the Clarks. In their sole issue, the Autens contend the trial erred by granting summary judgment.¹ Because the Autens raised a genuine issue of material fact on whether they exercised due diligence to serve the Clarks, we reverse and remand.

I. STANDARD OF REVIEW

In order to "bring suit" within the applicable limitations period, a plaintiff must both file suit within the limitations period and use due diligence to serve the defendant with process. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex.1990); Belleza-Gonzalez v. Villa, 57 S.W.3d 8, 11 (Tex. App.-Houston [14th Dist.] 2001, no pet.). If a plaintiff files suit within the limitations period, but serves the defendant after the limitations period has expired, the date of service relates back to the date of filing if the plaintiff exercises due diligence in obtaining service. Gant, 786 S.W.2d at 260; Brown v. Shores, 77 S.W.3d 884, 887 (Tex. App.-Houston [14th Dist.] 2002, no pet.); Belleza-Gonzalez, 57 S.W.3d at 11. 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. See Belleza-Gonzalez, 57 S.W.3d at 12; Valdez v. Charles Orsinger Buick Co., 715 S.W.2d 126, 127 (Tex.App.-Texarkana 1986, no writ); Beavers v. Darling, 491 S.W.2d 711, 714 (Tex.Civ.App.-Waco 1973, no writ).

To obtain summary judgment on the ground that a suit was not served within the limitations period, a defendant must show that, as a matter of law, the plaintiff did not exercise due diligence to effect service. See Gant, 786 S.W.2d at 260; Brown, 77 S.W.3d at 887. 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." Belleza-Gonzalez, 57 S.W.3d at 12; Valdez, 715 S.W.2d at 127. When a defendant has affirmatively pleaded the defense of limitations and shown that the plaintiff failed to timely serve the defendant, the burden shifts to the plaintiff to explain the delay. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex.1990); Brown, 77 S.W.3d at 887; see Belleza-Gonzalez, 57 S.W.3d at 11. Once the plaintiff presents an explanation, the burden shifts back to the defendant to show why that explanation is insufficient as a matter of law. Carter v. MacFadyen, 93 S.W.3d 307, 313 (Tex.App.-Houston [14th Dist.] 2002, pet. denied); see Belleza-Gonzalez, 57 S.W.3d at 11.

We review a summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). 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. Id.

II. DISCUSSION

The Autens claim Mrs. Auten was injured on May 15, 2001 when she fell at a McDonald's restaurant owned and operated by the Clarks. Therefore, the limitations period expired on May 15, 2003. See TEX. CIV. PRAC. & REM.CODE ANN. § 16.003 (Vernon Supp.2006) (prescribing two-year statute of limitations for personal injury suits). In their motion for summary judgment, the Clarks presented undisputed proof that the Autens filed suit on May 12, 2003 — three days before limitations expired, but they did not serve the Clarks until May 20, 2004 — just over a year after limitations expired.

In response to the motion for summary judgment, the Autens presented evidence explaining the delay and their attempts to procure service. The Clarks suggest that the Autens' explanations are insufficient as a matter of law.² We disagree and conclude the Autens raised a genuine issue of material fact on whether they exercised due diligence to serve the Clarks. The Autens' attempts to procure service during the year-long delay can be divided into three distinct periods as follows:

May 30, 2003 to July 12, 2003: Process Server Attempts Service Unsuccessfully Five Times and Executes Affidavits To Support Substituted Service:

The Autens first attempted service using a process server on May 30, 2003 — about two weeks after limitations expired.³ From May 30, 2003 to June 17, 2003, the process server tried unsuccessfully to serve the Clarks on five occasions:

• 5-30-03 The process server received no answer at the address for the Clarks shown in the petition. He left a business card and asked the Clarks to contact him.⁴

• 5-31-03 A relative informed the process server the Clarks had moved to a different address around the corner. The process server received no answer at this other address although two vehicles were present. He again left his business card and asked them to contact him.

• 6-2-03 The process server again received no answer at this other address. The business card he previously left was gone, so he left another and again asked them to contact him.

• 6-3-03 The process server returned to this other address and spoke with the Clarks' son who stated they were not home and he would give them the business card.

• 6-17-03 The process server again returned to this other address and spoke with the Clarks' son who stated they were not home, so the process server left his business card again.

The process server then advised the Autens' counsel of his efforts. Counsel requested that he sign affidavits to support motions for substituted service. On July 12, 2003, the process server executed three affidavits, describing his attempts to serve the Clarks and opining they were evading service and could be served by affixing the citation to the front door of this other address at which he had attempted service or leaving it with someone over the age of sixteen.⁵

The Clarks suggest that the Autens' explanation regarding this period was insufficient. They cite Roberts v. Padre Island Brewing Co., in which the court stated that it is the responsibility of the person requesting service, not the process server, to see that service is properly accomplished, and "the plaintiff's reliance on a process server does not constitute due diligence." 28 S.W.3d 618, 621 (Tex.App.-Corpus Christi 2000, pet. denied). However, when making this statement, the court cited its earlier decision in Gonzalez v. Phoenix Frozen Foods, Inc. See id. (citing Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 589-90 (Tex.App.-Corpus Christi 1994, no writ)). The Gonzalez court actually stated that "mere reliance" and "misplaced reliance" on a process server do not constitute due diligence. See Gonzalez, 884 S.W.2d at 590.⁶ The Roberts and Gonzalez courts did not hold that using a process server to attempt service can never constitute due diligence. See Roberts, 28 S.W.3d at 620-21; Gonzalez, 884 S.W.2d at 590.

In Roberts, the process server retained by the plaintiff never served the defendant, and another individual ultimately achieved service sixty-eight days after limitations expired. See 28 S.W.3d at 621. The court held that the plaintiff did not exercise due diligence as a matter of law because a reasonable person in the same or similar circumstances would have sought service by some alternative means. See id. Notably, there is no indication the plaintiff outlined the process server's attempts, if any, to effect service. See id. at 621-22. Rather, the plaintiff merely asserted that she repeatedly attempted to contact the process server and the district clerk's office about the status. See id. at 621.

In contrast, here, the evidence shows the process server persistently tried to serve the Clarks five times over a two-and-a-half week period. When a relative informed him on his first visit that the Clarks had moved, he immediately attempted service at the other address provided and returned four times. Although he waited two weeks before his last visit, this wait was not necessarily unreasonable considering he had personally left his business card with their son on his previous visit. See Taylor v. Rellas, 69 S.W.3d 621, 623 (Tex.App.-Eastland 2002, no pet.) (finding fact issue on due diligence although process servers took over a month to serve defendant and this period included fifteen-day and twenty-day delays between attempts). Moreover, the Autens' counsel did not simply defer to the process server for some lengthy period because, at counsel's request, the process server executed affidavits to support motions for substituted service approximately three weeks after his last attempt. Thus, the evidence indicates more than "mere reliance" or "misplaced reliance" on the process server.

In sum, after limitations expired, approximately two months passed while the Autens attempted unsuccessfully to serve the Clarks personally via a process server and prepared to file motions for substituted service. We conclude that it was not necessarily unreasonable to attempt personal service for two months before seeking court...