Reynolds v. Alcorn
| Decision Date | 18 June 1980 |
| Docket Number | No. 9135,9135 |
| Parties | Beth Burnett REYNOLDS, Appellant, v. Dixie Keen ALCORN, Appellee. |
| Court | Texas Court of Appeals |
Frederick J. Deyeso, San Antonio, for appellant.
Key, Carr, Evans & Fouts, Donald M. Hunt, Lubbock, for appellee.
This appeal by Beth Burnett Reynolds (hereafter "Reynolds") from a summary judgment in favor of appellee, Dixie Keen Alcorn (hereafter "Alcorn") requires us to determine whether Reynolds' suit is barred by the statute of limitations. We conclude that it is, because Reynolds failed as a matter of law to exercise diligence in securing service on Alcorn, and affirm the judgment of the trial court.
The undisputed facts developed by the summary judgment evidence reveal the following sequence of events. On September 25, 1974 in Lubbock, Texas, Reynolds was a passenger in an automobile struck from the rear by an automobile driven by Alcorn. Alcorn stated by affidavit that she resided at 4420 79th Street in Lubbock, Texas at the time of the collision, but moved to Tyler, Texas in September, 1975. Reynolds subsequently employed an attorney in San Antonio, Texas to file suit for her to recover for personal injuries incurred in the collision. The suit was filed in Lubbock County on September 20, 1976. The transmittal letter from Reynolds' attorney to the district clerk requested "that process issue for immediate service on Defendant at 2111 51st Street, Apartment C, Lubbock, Texas, by the Lubbock County Sheriff's Office, and that I be notified of any difficulty in locating and serving the Defendant." Citation was issued by the district clerk on September 20, 1976, and was returned unexecuted by the sheriff's office on the same date with the notation "House is Vacant." The district clerk did not advise Reynolds' attorney that Alcorn was not served.
Subsequent to the filing of the suit, Reynolds' first attorney ceased handling the case and asked her present attorney "to continue with the file." When the suit was initially filed, her first attorney contacted a Lubbock attorney and asked him to serve as local counsel. The exact nature of the initial arrangement is in dispute. The Lubbock attorney testified by deposition that he was not asked to do anything at the time of the initial contact and was only to serve as local counsel, if needed, on the trial of the case. Reynolds' present attorney, by affidavit attached to the response to the motion for summary judgment, implies that the local attorney may have had some responsibility for obtaining service on Alcorn or advising the other attorney of the lack of service. In any event, in late February, 1978, Reynolds' present attorney asked the Lubbock attorney to assume primary responsibility for the case. The Lubbock attorney reviewed the file in the district clerk's office and discovered that Alcorn had not been served. He made numerous telephone calls and learned that Alcorn was then residing in Tyler, Texas. He requested issuance of citation for service on her at her Tyler address, and she was duly served on March 9, 1978. Alcorn was not aware of the pending case against her until she was served.
Subsequent to her appearance and answer in the case, Alcorn moved for summary judgment contending, inter alia, that Reynolds' suit was barred by article 5526 of the Texas Revised Civil Statutes Annotated, the two year statute of limitations, because Reynolds did not exercise due diligence in obtaining service on her.
Reynolds filed a response to the motion, with supporting instruments, one day prior to the hearing on the motion. By her response, Reynolds contended there was no lack of due diligence in serving Alcorn because (1) service was immediately attempted but Alcorn had moved from Lubbock more than a year before suit was filed and (2) neither local counsel nor the district clerk had informed San Antonio counsel that service had not been obtained on Alcorn. 1 Reynolds also contended Alcorn was not harmed by the delay.
The trial court granted Alcorn's motion for summary judgment and entered a take-nothing judgment against Reynolds who duly perfected her appeal to this court. Reynolds contends the trial court erred because questions of fact exist on all grounds raised by Alcorn's motion. Alcorn defends the judgment only on the limitations ground.
The general standards for summary judgment are well established. A summary judgment is sustainable only if the movant has conclusively established that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. Tex.R.Civ.P. 166-A. The trial and appellate courts must resolve all doubts about the existence of a genuine issue as to a material fact against the movant. The evidence must be viewed in a light most favorable to the non-movant, conflicts in the evidence are ignored and the evidence which tends to support the position of the non-movant is accepted as true. Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41, 47 (Tex.1965).
It is also well established that the "mere filing of a suit will not interrupt or toll the running of a statute of limitation; . . . to interrupt the statute, the use of diligence in procuring the issuance and service of citation is required" (emphasis added). Rigo Manufacturing Company v. Thomas, 458 S.W.2d 180, 182 (Tex.1970). The duty to exercise diligence continues until service is obtained. Williams v. Houston-Citizens Bank & Trust Co., 531 S.W.2d 434, 435 (Tex.Civ.App. Houston (14th Dist.) 1975, writ ref'd n. r. e.); Austin v. Proctor, 291 S.W. 702, 703 (Tex.Civ.App. El Paso 1927, no writ). Where, as here, summary judgment is sought on the defensive ground that the suit is barred by the statute of limitations, the movant must conclusively establish the elements of the bar. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). If, as in this case, the non-movant interposes the claim of diligence in response to the motion for summary judgment, the movant must also conclusively establish lack of diligence by the non-movant. Zale...
To continue reading
Request your trial
-
S. Cty. Mutual Ins. Co. v Ochoa
...App.--Corpus Christi 1992, no writ); Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex. App.--Corpus Christi 1991, no writ) (quoting Reynolds v. Alcorn, 601 S.W.2d 785, 788 (Tex. Civ. App.--Amarillo 1980, no writ)). The existence of diligence is generally a question of fact, but if no excuse is offer......
-
Bilsing v. State Industries, Inc., Civ.A.No. 01-1175.
...(Tex.App. — Houston (1st Dist. 1995, no writ)). It is the attorney's duty to ascertain the status and completion of citation. Reynolds v. Alcorn, 601 S.W.2d 785 (Tex.Civ.App.—Amarillo 1980, no writ). The duty to use due diligence continues from the date the suit is filed until the date the ......
-
Deeds v. Whirlpool Corp.
...expired. Id. See also Gharda USA, Inc. v. Control Solutions, Inc., 464 S.W. 3d 338 (Tex. May 8, 2015). 6. Reynolds v. Alcorn, 601 S.W. 2d 785, 788 (Tex. Civ. App.-Amarillo 1980). 7. Klemm v. Shroeder, 204 S.W. 2d 675m 677 (Tex. Civ. App.--San Antonio 1947, no writ). 8. Gant, 786 S.W. 2d at ......
-
Valdez v. Charles Orsinger Buick Co.
...of diligence required is that which would be employed by an ordinary prudent person under the same or similar circumstances. Reynolds v. Alcorn, 601 S.W.2d 785 (Tex.Civ.App.--Amarillo 1980, no writ); Hamilton v. Goodson, 578 S.W.2d 448 (Tex.Civ.App.--Houston [1st Dist.] 1979, no writ). The ......