Gundermann v. Buehring, No. 13-05-278-CV (TX 2/2/2006)

• Decision Date: 02 February 2006
• Docket Number: No. 13-05-278-CV.,13-05-278-CV.
• Parties: JOAN LABAY GUNDERMANN AND ERIC GUNDERMANN, Appellants, v. BRYAN RAY BUEHRING, TAMMY MAY, AND SHANNON MAY, Appellees.
• Court: Texas Supreme Court

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JOAN LABAY GUNDERMANN AND ERIC GUNDERMANN, Appellants, v. BRYAN RAY BUEHRING, TAMMY MAY, AND SHANNON MAY, Appellees.

No. 13-05-278-CV.

Court of Appeals of Texas, Thirteenth District, Corpus Christi.

Memorandum Opinion Delivered and Filed February 2, 2006.

On Appeal from the 329th District Court of Wharton County, Texas.

Before Chief Justice VALDEZ and Justices RODRIGUEZ and GARZA.

MEMORANDUM OPINION

Memorandum Opinion by Justice GARZA.

Appellants, Joan Labay Gunderman and Eric Gunderman, appeal the trial court's order granting summary judgment in favor of Bryan Ray Buehrig on statute of limitations grounds and in favor of Tammy May and Shannon May on grounds that there was no evidence of negligent entrustment. By three issues on appeal, appellants argue the trial court erred in granting Bryan's motion for summary judgment on limitations grounds because (1) a fact issue exists as to whether due diligence was exercised in obtaining service on Bryan; (2) Bryan had notice of the suit prior to the running of the statute of limitations; and (3) Bryan acknowledged the justness of the suit, and thus, under section 16.065 of the Texas Civil Practice and Remedies Code, the claim was revived. By a fourth issue, appellants contend the trial court abused its discretion in denying their motion for continuance of the hearing on Tammy and Shannon's no-evidence motion for summary judgment.¹ For the reasons stated below, we affirm summary judgment.

I. BACKGROUND

On February 28, 2000, Joan and Eric were involved in an automobile accident with a vehicle operated by Bryan Ray Buehrig and owned by his parents, Tammy May and Shannon May. Almost two years later, on February 25, 2002, appellants sued Bryan, for personal injuries, and Tammy and Shannon for negligent entrustment. Appellants accomplished service of process on Tammy and Shannon on February 27, 2002; however, they did not serve Bryan with citation until sometime between October 25, 2003 and November 15, 2003.² In response to the suit, Bryan filed an answer and a motion for summary judgment asserting that appellants failed to use due diligence in serving him with citation within the two-year statute of limitations. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (Vernon 2002).³ Tammy and Shannon also argued a no-evidence motion for summary judgment on grounds that appellants could not produce any evidence supporting their claim for negligent entrustment. Prior to the hearing on the motions, appellants filed a motion for continuance and a response to appellees' motions for summary judgment. The trial court denied the continuance and granted both the traditional and no-evidence motions for summary judgment. Appellants then filed a motion to reconsider the summary judgment. The motion to reconsider was granted, and after another hearing, the trial court affirmed summary judgment in favor of appellees.

II. STANDARD OF REVIEW

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 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. If a defendant's motion for summary judgment shows a lack of timely service, the burden shifts to the plaintiff to explain the delay. See Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990).

The established rule is that filing a suit will not toll the running of the statute of limitations. Murray, 800 S.W.2d at 830; Taylor, 4 S.W.3d at 65. To effectively interrupt the statute of limitations, a plaintiff must file suit within the limitations period and continuously exercise due diligence in procuring the issuance and service of citation. Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex. App.-Corpus Christi 1991, no writ) (citations omitted). When a plaintiff files suit within the limitations period, but fails to serve the defendant until after the statutory period has expired, the date of service may relate back to the date of filing if the plaintiff exercised diligence in effecting service. Id.; Gant, 786 S.W.2d at 260. The plaintiff must exercise due diligence in the issuance and service of citation. Murray, 800 S.W.2d at 830; Taylor, 4 S.W.3d at 65. Because, in the present case, appellants failed to serve citation on Bryan within the period of limitations, they had the burden to prove that they used due diligence in procuring the subsequent issuance and service of citation on Bryan. See Gant, 786 S.W.2d at 260; Taylor, 4 S.W.3d at 65. An unexplained delay in effecting service constitutes a lack of due diligence. Taylor, 4 S.W.3d at 65.

Thus, the issue before us is whether the record shows any evidence that appellants used diligence in procuring the issuance and service of citation on Bryan. Taylor, 4 S.W.3d at 65. The duty to use due diligence continues from the date the suit is filed until the date the defendant is served. Id.; see Jimenez v. County of Val Verde, 993 S.W.2d 167, 169 (Tex. App.-San Antonio 1999, pet. denied). Generally, the exercise of due diligence is a question of fact. Taylor, 4 S.W.3d at 65; Hodge v. Smith, 856 S.W.2d 212, 215 (Tex. App.-Houston [1st Dist.] 1993, writ denied). A fact question exists if the record reflects a reasonable excuse for delay. Martinez v. Becerra, 797 S.W.2d 283, 285 (Tex. App.-Corpus Christi 1990, no writ). However, a lack of diligence can be found as a matter of law where the plaintiff offers no valid excuse for lack of service or the lapse of time and the plaintiff's acts or inaction conclusively negate diligence. Hodge, 856 S.W.2d at 215; Butler v. Ross, 836 S.W.2d 833, 835-36 (Tex. App.-Houston [1st Dist.] 1992, no writ) (finding lack of diligence where there was a five and one-half month period of inactivity); Hansler, 807 S.W.2d at 5; Taylor, 4 S.W.3d at 66 (holding that unexplained delay of four months between filing suit and service negated diligence). The two controlling factors that establish due diligence are (1) whether the plaintiff acted as an ordinary prudent person would act under the same circumstances and (2) whether the plaintiff acted diligently up until the time the defendant was served. Taylor, 4 S.W.3d at 65; Hodge, 856 S.W.2d at 215.

III. DUE DILIGENCE

By their first issue, appellants contend the trial court erred in granting Bryan's motion for summary judgment on limitations grounds because a fact issue exists as to whether due diligence was exercised in obtaining service.

Because Eric was a minor at the time of the accident, we first discuss the statute of limitations as it applies to minors. Eric was 16 at the time of the accident and thus under a legal disability as provided by section 16.001 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.001 (Vernon 2002). Sections 16.001 and 16.003 together provide a general statute of limitations for minors' personal injury claims. Section 16.003 establishes a two-year limitations period, while section 16.001 tolls the period until the minor reaches 18 years of age. TEX. CIV. PRAC. & REM. CODE ANN. § 16.001, 16.003. As such, Eric had two years after attaining the age of 18 to bring suit for the personal injuries sustained during his minority. See Weiner v. Wasson, 900 S.W.2d 316, 321 (Tex. 1995). The statute of limitations commenced to run on Eric's eighteenth birthday, September 20, 2001. See id. Thus, in the present case, although the accident occurred on February 28, 2000, and the statute of limitations would have otherwise run on February 28, 2002, the two-year statute of limitations for Eric's claims actually ran on September 20, 2003.

On appeal, Eric contends that a fact issue exists as to whether he exercised diligence in serving Bryan only 35 days after the statute of limitations ran on his claim. However, in determining due diligence, we do not focus solely on how far outside the limitations period service occurred. We must consider whether due diligence was exercised from the date suit was filed until the date the defendant was served. See McCord v. Dodds, 69 S.W.3d 230, 234 (Tex. App.-Corpus Christi 2001, pet. denied) (finding lack of diligence as a matter of law where defendant truck driver was served eight days after the statute of limitations had run and had not been served for over six months after suit was filed and more than four months after his father's discovery responses had been filed); Taylor, 4 S.W.3d at 65. Thus, the issue before us is whether appellants used due diligence in procuring the issuance and service of citation upon Bryan from the date they filed suit until the date Bryan was served.

The record reveals that Bryan filed his motion for summary judgment raising the affirmative defense of limitations based on lack of diligence in obtaining service. Bryan...