Rivera v. Henderson
| Decision Date | 30 August 2022 |
| Docket Number | 01-21-00418-CV |
| Parties | EDUARDO RIVERA, Appellant v. STEFANI NICOLE HENDERSON, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 165th District Court Harris County, Texas Trial Court Case No. 2019-44592
Panel consists of Justices Landau, Guerra, and Farris
This case arises from a motor vehicle accident. Appellant Eduardo Rivera filed suit against appellee Stefani Nicole Henderson one day before the statute of limitations expired, and he served Henderson with notice of the suit eighteen months later. The trial court granted summary judgment in Henderson's favor on her affirmative defense of limitations.
On appeal, Rivera raises three issues: (1) whether the trial court erred by granting Henderson's amended motion for summary judgment filed without leave of court; (2) whether the trial court erred by denying Rivera's motion for new trial; and (3) whether the trial court erred by granting summary judgment when the delay in service was caused by the trial court's failure to rule on Rivera's motion for substitute service for sixteen months. We affirm.
Rivera alleges in his petition that Henderson caused a three-car motor vehicle accident on June 29, 2017. According to Rivera Henderson was travelling behind him on the Katy Freeway when he suddenly stopped due to heavy traffic. Henderson's car hit Rivera's car from behind causing Rivera's car to hit the car in front of him.[1] Rivera filed suit against Henderson on June 28, 2019, asserting claims for negligence and negligence per se. The suit was filed one day before the statute of limitations expired on June 29, 2019. See Tex. Civ. Prac. & Rem. Code § 16.003(a) ().
Within ten days of filing suit, Rivera obtained a citation from the trial court clerk, hired a process server, and attempted to serve notice of the lawsuit on Henderson. When his attempts at service were unsuccessful, Rivera filed a motion for substitute service on August 22, 2019. He set the motion for submission on September 2, 2019, and he later reset the submission date to September 16, 2019. From this reset submission date through March 2020, Rivera's counsel and his staff contacted the trial court coordinator numerous times in person, by phone, and by email inquiring about the status of the motion for substitute service. Rivera's counsel's wife also contacted the court coordinator about the status of Rivera's pending motion sometime in the beginning of March 2020. Counsel's wife contacted the court coordinator again during the first week of May 2020. She called the court coordinator a final time on May 26 2020, and she followed up the same day with an email.
On May 29, 2020, Rivera filed a motion requesting that the trial court rule on his motion for substitute service that had been pending for eight months since its submission date. Rivera set this motion for submission on June 8, 2020. Rivera's counsel sent an email to the court coordinator on July 27 2020, inquiring about the status of both pending motions.
On December 15, 2020, the court granted Rivera's motion for substitute service and ordered Rivera to serve Henderson by attaching a copy of the citation, the petition, and the court's order for substitute service to the front door of Henderson's house. Rivera finally served Henderson three days later.
Henderson filed an answer on January 4, 2021. She asserted numerous affirmative defenses, including that Rivera's lawsuit was barred by the statute of limitations because Rivera did not use diligence in serving her process. The same day, Henderson filed a motion for summary judgment based solely on her limitations defense. She attached a copy of the return of citation and a photograph dated December 18, 2020, depicting a package taped to what appears to be the front door of a residence. She set the motion for a hearing on February 3, 2021. Rivera filed a response arguing that a genuine issue of material fact existed concerning his diligence in effecting service. Among other documents, Rivera attached the affidavits of his counsel and his counsel's wife concerning efforts to serve Henderson. The appellate record references a summary judgment hearing on February 3, 2021, but a transcript of this hearing does not appear in the appellate record.
On February 11, 2021, Henderson filed a supplemental brief in support of her motion for summary judgment. In it, she advised the trial court of a recent order from another Harris County District Court purportedly dismissing a separate case with similar facts. When the trial court had not ruled on Henderson's summary judgment motion by March 4, Henderson filed a motion requesting a status conference on her pending summary judgment motion.
On March 17, 2021, before the trial court ruled on her original motion for summary judgment, Henderson filed an amended motion for summary judgment. She did not seek leave of court to file the amended motion. Her amended motion combined the arguments raised in her original motion for summary judgment and the supplement to the original motion. Henderson set the amended summary judgment motion for a hearing on April 9, which was reset to May 5, 2021.
Rivera filed a motion to strike Henderson's amended motion for summary judgment because it was "not proper" before the court. Rivera alternatively responded to the amended motion, arguing that Henderson was "attempting to have as many bites of the apple as she could get" and the legal authority she relied upon was distinguishable from this case.
The trial court held a hearing by telephone on May 5, but neither Rivera nor his counsel appeared at the hearing. During the hearing, Henderson reiterated her argument that Rivera had not used diligence in serving her with notice of suit. The trial court noted Rivera's complaint that Henderson's amended motion was not proper before the court, construing the argument as contending that the amended motion was filed out of time. But the court stated that no scheduling order had been entered in the case and the amended motion reset the time to hold a hearing. The court stated that no basis existed to strike the amended motion or the supplement to the original motion, and it noted that the two motions for summary judgment were "not very different" from each other. After the hearing, the trial court signed an order granting Henderson's amended motion for summary judgment and dismissing Rivera's claims.
Rivera filed a motion to vacate the summary judgment order and for new trial on June 4, 2021. In the motion, Rivera made the same arguments he had asserted in his motion to strike. He also argued that his failure to appear at the summary judgment hearing was due to his counsel's mistakenly calendaring the hearing for the wrong day, although he did not support this argument with any evidence. Rivera set the motion for a hearing on July 7, 2021.
At the hearing, Rivera argued that he was entitled to a new trial because the trial court improperly ruled on Henderson's amended motion for summary judgment. Rivera argued that the amended motion was not properly before the court under Rule of Civil Procedure 166a(c). Rivera contended that after a hearing on a motion for summary judgment, a party may not file an amended motion for summary judgment but may only file a new summary judgment motion at that time. Rivera's counsel also explained that he did not appear for the May 5 summary judgment hearing because his office mistakenly calendared the hearing date.
Henderson responded that these arguments were irrelevant to Rivera's use of diligence in attempting to serve her, and the parties' arguments were fully addressed at the hearing despite Rivera not appearing at it. The trial court noted that if Rivera was correct, then the court would grant his motion for new trial and re-notice and address Henderson's amended summary judgment motion, which would lead to the same result and lead to judicial inefficiency. The motion for new trial was overruled by operation of law. See Tex. R. Civ. P. 329b(c). This appeal followed.
We first address Henderson's contention that we should dismiss this appeal for want of prosecution because Rivera filed his brief three days late. After his initial briefing deadline passed, Rivera filed a motion to extend time to file his brief. This Court granted the motion and extended Rivera's briefing deadline to December 20, 2021. The Clerk of Court's notice of this extension stated that there would be "no further extensions." Rivera filed his brief on December 23, 2021, three days after the extended deadline. He did not file another motion to extend time.
Henderson relies in part on Rule of Appellate Procedure 38.8(a), which states in relevant part:
Tex. R. App. P. 38.8(a). Henderson argues that subsection (a)(1) requires dismissal of Rivera's untimely brief.
The term "may" in this rule is not mandatory but rather "creates discretionary authority or grants permission or a power." Tex. Gov't Code § 311.016; see Brown v. Health & Med. Prac. Assocs., Inc., No 09-13-00192-CV, 2013 WL 5658605, at *1 n.1 (Tex. App.-Beaumont Oct. 17, 2013, no pet.) (mem. op.) (declining to dismiss one appellant's appeal for failure to file brief...
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