Carolyn Butler v. Robert Skegrud ( 2015 )


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  •                         COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-14-00168-CV
    CAROLYN BUTLER                                                      APPELLANT
    V.
    ROBERT SKEGRUD                                                        APPELLEE
    ----------
    FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
    TRIAL COURT NO. 096-264057-13
    ----------
    MEMORANDUM OPINION1
    ----------
    In two issues, pro se Appellant Carolyn Butler appeals from the trial court’s
    order granting the motion for summary judgment filed by Appellee Robert
    Skegrud. We affirm.
    1
    See Tex. R. App. P. 47.4.
    Background
    On February 4, 2013, Butler filed suit against Skegrud and Lola Kelly,
    alleging that she fell and injured her leg and back on February 4, 2011, because
    Skegrud and Kelly failed to properly maintain their rental property at 2020 Park
    Springs Boulevard, Arlington, Texas (the “Arlington address”).2 In an attachment
    to her original petition, Butler listed the Arlington address as Skegrud and Kelly’s
    address.
    On February 6, 2013, the district court clerk prepared a citation directed to
    Skegrud at the Arlington address.       On February 15, 2013, a Tarrant County
    constable attempted to serve Skegrud. The citation was returned unexecuted to
    the district clerk on February 27, 2013. The constable’s service report attached
    to the unexecuted citation stated, “per the co-def and mgr at Willows II Apts, Ms.
    L. Kelly, the subj. offices at: 24 Hampshire Way Novato, CA. 94943.”
    The district court clerk prepared a second citation on March 4, 2014. The
    officer’s return reflects that the citation was executed by the district court clerk at
    2
    Butler also sued David Whitten, M.D.; Jon Beazley, D.O; and Joseph
    DelPrincipe, D.O., alleging that they did not accurately diagnose her leg injuries
    so that her leg injuries were left untreated. On the doctors’ motions, the trial
    court dismissed Butler’s claims against the doctors because Butler failed to file
    an expert report pursuant to Texas Civil Practice and Remedies Code section
    74.351(a), see Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (West Supp.
    2014), and severed them from Butler’s claims against Skegrud and Kelly. Butler
    appealed the trial court’s order dismissing her claims against the doctors, and
    this court affirmed the trial court’s order. See Butler v. Whitten, No. 02-13-00306-
    CV, 
    2014 WL 4656589
    (Tex. App.—Fort Worth Sept. 18, 2014, pet. denied)
    (mem. op.).
    2
    24 Hampshire Way, Novato, California, 94945, on March 11, 2014, by mailing
    Skegrud a copy of the citation and Butler’s original petition by certified mail. See
    Tex. R. Civ. P. 103, 106(a)(2). Skegrud received the citation and petition on
    March 11, 2014, and filed his original answer on March 13, 2014, asserting the
    affirmative defense of statute of limitations.
    Contemporaneously with his answer, Skegrud filed a motion for summary
    judgment on his limitations defense, contending that he was entitled to summary
    judgment as a matter of law because he was not served until over a year after
    the statute of limitations had expired. See Tex. Civ. Prac. & Rem. Code Ann.
    § 16.003 (West Supp. 2014) (stating that personal injury claims are governed by
    a two-year statute of limitations). Butler argued in her response that she acted
    with due diligence to serve the citation, explaining that when she called the
    clerk’s office to find out if Skegrud had been served, the clerk informed her that
    Kelly gave the constable Skegrud’s California address. Butler further claimed
    that she believed Skegrud had been served, but at a hearing held on February
    28, 2014, she was told that he had not been served. She then immediately
    requested the clerk to reissue a citation directed to Skegrud at his California
    address. Butler claimed Kelly was “attempting to evade service on . . . Skegrud
    by giving [the constable who attempted to serve Skegrud on February 15, 2013,]
    the wrong zip code.”       She also argued that the statute of limitations was
    “temporarily disabled” from March 20, 2013, when the trial court sustained the
    district clerk’s objection to Butler’s affidavit of indigence, until September 30,
    3
    2014, when the trial court permitted Butler to continue her case without paying
    costs. As evidence, Butler attached to her response (1) an excerpt from an
    explanation of benefits showing charges for medical treatment; (2) a December
    19, 2011 letter from Kelly to Butler stating that Skegrud’s address was 24
    Hampshire Way, Novato, California, 94945; (3) an October 18, 2012 letter from
    Butler addressed to Skegrud at his California address requesting a meeting
    regarding her injuries and demanding $100,000 for her injuries, pain, and
    suffering; (4) the trial court’s March 22, 2013 order sustaining the district clerk’s
    objection to Butler’s affidavit of indigence; (5) excerpts from an affidavit filed in
    support of a motion for new trial;3 (6) the officer’s return stating Skegrud was
    served by certified mail; (7) the certified mail receipt and the return receipt signed
    by Skegrud on March 11, 2014; and (8) the constable’s February 15, 2013
    service report.
    After a hearing, the trial court granted Skegrud’s motion for summary
    judgment. This appeal followed.
    Standard of Review
    We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
    
    315 S.W.3d 860
    , 862 (Tex. 2010). We consider the evidence presented in the
    light most favorable to the nonmovant, crediting evidence favorable to the
    3
    Butler filed a motion for new trial asking the trial court to set aside its
    January 24, 2014 order granting Kelly’s no-evidence motion for summary
    judgment and dismissing with prejudice Butler’s claims against Kelly. The motion
    was denied.
    4
    nonmovant if reasonable jurors could, and disregarding evidence contrary to the
    nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
    Advisors, Inc. v. Fielding, 
    289 S.W.3d 844
    , 848 (Tex. 2009). We indulge every
    reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,
    Inc. v. Parker, 
    249 S.W.3d 392
    , 399 (Tex. 2008). A defendant is entitled to
    summary judgment on an affirmative defense if the defendant conclusively
    proves all the elements of the affirmative defense.              Frost Nat’l Bank v.
    Fernandez, 
    315 S.W.3d 494
    , 508–09 (Tex. 2010); see Tex. R. Civ. P. 166a(b),
    (c). To accomplish this, the defendant-movant must present summary-judgment
    evidence that conclusively establishes each element of the affirmative defense.
    See Chau v. Riddle, 
    254 S.W.3d 453
    , 455 (Tex. 2008).
    Applicable Law
    If a plaintiff files a petition within the limitations period, service of process
    outside the limitations period may still be valid if the plaintiff exercises diligence in
    procuring service on the defendant. Ashley v. Hawkins, 
    293 S.W.3d 175
    , 179
    (Tex. 2009); see Proulx v. Wells, 
    235 S.W.3d 213
    , 215 (Tex. 2007) (explaining
    that “a timely filed suit will not interrupt the running of limitations unless the
    plaintiff exercises due diligence in the issuance and service of citation”). If a
    plaintiff diligently effects service after the expiration of the statute of limitations,
    then the date of service relates back to the date of filing. 
    Proulx, 235 S.W.3d at 215
    .   Once a defendant affirmatively pleads limitations and establishes that
    service occurred after the limitations period expired, as is the case here, the
    5
    burden shifts to the plaintiff to explain the delay. 
    Ashley, 293 S.W.3d at 179
    ;
    
    Proulx, 235 S.W.3d at 216
    . The plaintiff must then present evidence to raise a
    fact issue as to due diligence in service of process. 
    Proulx, 235 S.W.3d at 216
    .
    If the plaintiff’s evidence raises a material fact issue regarding the diligence of
    service, the burden then shifts back to the defendant to conclusively show why,
    as a matter of law, the evidence is insufficient. 
    Id. To explain
    a delay in service, “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. (citing Gant
    v. DeLeon, 
    786 S.W.2d 259
    , 260 (Tex. 1990)); see also Zimmerman v. Massoni, 
    32 S.W.3d 254
    ,
    256 (Tex. App.—Austin 2000, pet. denied) (holding that a plaintiff’s attorney must
    evaluate continuously the state of efforts to secure service).     “Generally, the
    question of the plaintiff’s diligence in effecting service is one of fact, and is
    determined by examining the time it took to secure citation, service, or both, and
    the type of effort or lack of effort the plaintiff expended in procuring service.”
    
    Proulx, 235 S.W.3d at 216
    . The “relevant inquiry is whether the plaintiff acted as
    an ordinarily prudent person would have acted under the same or similar
    circumstances and was diligent up until the time the defendant was served.” 
    Id. However, if
    “one or more lapses between service efforts are unexplained or
    patently unreasonable,” then the record demonstrates lack of diligence as a
    matter of law. Id.; NETCO, Inc. v. Montemayor, 
    352 S.W.3d 733
    , 739 (Tex.
    App.—Houston [1st Dist.] 2011, no pet.).
    6
    In this case, the date of Butler’s alleged injury was February 4, 2011. She
    filed suit the day the limitations period on her claims expired. See Tex. Civ. Prac.
    & Rem. Code Ann. § 16.003. Skegrud met his initial summary-judgment burden
    by establishing that he was served with citation on March 11, 2014, more than a
    year after the statute of limitations expired on Butler’s claims. See id.; Tex. R.
    Civ. P. 166a(c). The burden then shifted to Butler to explain her delay in serving
    Skegrud and to present evidence to raise a fact issue as to her due diligence in
    effectuating service. See 
    Proulx, 235 S.W.3d at 215
    –16.
    Analysis
    In her first issue, Butler contends that Texas Rule of Civil Procedure 107
    required the constable who attempted to serve Skegrud in February 2013 to
    show that he was diligent in his efforts to serve the citation. See Tex. R. Civ. P.
    107(d) (“When the officer or authorized person has not served the citation, the
    return shall show the diligence used by the officer or authorized person to
    execute the same and the cause of failure to execute it, and where the defendant
    is to be found, if ascertainable.”). Butler argues that the constable was obligated
    to attempt to notify her to get information from her regarding Skegrud’s address.
    She further claims that the constable had a duty to use other methods of service
    after he failed to serve Skegrud, specifically citation by publication, see Tex. R.
    Civ. P. 109, or by leaving the citation with someone at his business location in
    Arlington, Texas. See Tex. Civ. Prac. & Rem. Code Ann. § 17.021(a) (West
    2015) (providing that in limited circumstances, in an action against an individual
    7
    that arises in a county in which the individual has an office, place of business, or
    agency transacting business in Texas, citation may be served on an agent or
    clerk employed in the office, place of business, or agency). Lastly, she asserts
    that civil practice and remedies code section 16.063 tolled the statute of
    limitations while Skegrud was in California. See 
    id. § 16.063
    (West 2015) (“The
    absence from this state of a person against whom a cause of action may be
    maintained suspends the running of the applicable statute of limitations for the
    period of the person’s absence.”).
    But, as Skegrud points out, Butler raises these arguments for the first time
    on appeal.   A nonmovant must expressly present in her written response or
    answer to a motion for summary judgment any issues that would defeat the
    movant’s entitlement to summary judgment. McConnell v. Southside Indep. Sch.
    Dist., 
    858 S.W.2d 337
    , 341, 343 (Tex. 1993); City of Houston v. Clear Creek
    Basin Auth., 
    589 S.W.2d 671
    , 678–79 (Tex. 1979). Any issues not expressly
    presented by the nonmovant to the trial court in a written response may not be
    considered as grounds for reversal.4 See Tex. R. Civ. P. 166a(c); Dubose v.
    Worker’s Med., P.A., 
    117 S.W.3d 916
    , 920 (Tex. App.—Houston [14th Dist.]
    2003, no pet.); Frazer v. Tex. Farm Bureau Mut. Ins. Co., 
    4 S.W.3d 819
    , 825
    4
    The exception to this general rule is that the nonmovant           may still
    challenge on appeal the legal sufficiency of the evidence supporting      summary
    judgment. Clear Creek Basin 
    Auth., 589 S.W.2d at 678
    . Butler              does not
    challenge the legal sufficiency of the evidence supporting the            summary
    judgment.
    8
    (Tex. App.—Houston [1st Dist.] 1999, no pet.); see also Tex. R. App. P.
    33.1(a)(1) (stating that as a prerequisite for presenting complaint for appellate
    review, record must show complaint was made to trial court by timely request,
    objection, or motion).    To “expressly” present issues, the written answer or
    response to the motion for summary judgment must fairly apprise the movant and
    the trial court of the issues the nonmovant contends should defeat summary
    judgment. Tello v. Bank One, N.A., 
    218 S.W.3d 109
    , 119 (Tex. App.—Houston
    [14th Dist.] 2007, no pet.). The failure to present an issue to defeat summary
    judgment in the trial court waives the issue on appeal. D.R. Horton–Tex., Ltd. v.
    Mkt. Int’l Ins. Co., 
    300 S.W.3d 740
    , 743 (Tex. 2009); 
    Dubose, 117 S.W.3d at 920
    .
    Because Butler did not assert in her written response to Skegrud’s motion
    for summary judgment any of the arguments made in her first issue, she has
    waived these arguments on appeal. See Tex. R. Civ. P. 166a(c). Accordingly,
    we overrule Butler’s first issue.
    In her second issue, Butler argues that she raised a fact issue regarding
    her due diligence in effecting service on Skegrud.5 It took Butler over a year to
    serve Skegrud with process. Texas courts have held that due diligence was
    lacking as a matter of law based upon gaps in service for periods far less than a
    5
    Butler also argues in her second issue that civil practice and remedies
    code section 16.063 tolled the statute of limitations while Skegrud was in
    California. See Tex. Civ. Prac. & Rem. Code Ann. § 16.063. But as we
    explained in our disposition of Butler’s first issue, she has waived this argument
    on appeal.
    9
    year when there have been no efforts or insufficient efforts to obtain service of
    process. See, e.g., 
    Ashley, 293 S.W.3d at 180
    –81 (holding unexplained eight-
    month gap between service attempts did not create a fact issue as to diligence);
    Waggoner v. Sims, 
    401 S.W.3d 402
    , 406 (Tex. App.—Texarkana 2013, no pet.)
    (“Because [plaintiff] took no actions to obtain service for the nine months
    following the expiration of the limitations period (and the failure of the initial
    attempts at service), we find that she failed to exercise due diligence in procuring
    service as a matter of law.”); Parsons v. Turley, 
    109 S.W.3d 804
    , 809 (Tex.
    App.—Dallas 2003, pet. denied) (holding that plaintiff did not exercise diligence
    where a three-month delay occurred in service of process and plaintiff relied
    upon oral agreement with defendant to postpone service); Webster v. Thomas, 
    5 S.W.3d 287
    , 290 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (holding that
    four-month and ten-day delay amounts to a lack of diligence, if coupled with no
    efforts or insufficient efforts to procure citation and service); Hansler v. Mainka,
    
    807 S.W.2d 3
    , 5 (Tex. App.—Corpus Christi 1991, no writ) (holding as matter of
    law that plaintiff lacked diligence after an unexplained delay of over five months
    after the expiration of the statute of limitations). We must determine whether
    Butler’s summary-judgment evidence raises a fact issue as to whether she acted
    with diligence. See 
    Proulx, 235 S.W.3d at 216
    . A delay in service, coupled with
    no efforts or insufficient efforts to procure citation and service, amounts to a lack
    of diligence as a matter of law. See 
    id. 10 Here,
    Butler failed to provide a valid or reasonable explanation for the
    delay effectuating service on Skegrud.        In her summary-judgment response,
    Butler claimed she believed Skegrud had been served until she learned at a
    February 28, 2014 hearing in the case that he had not been served. Butler
    explained that when she received Kelly’s original answer, which was filed on
    February 19, 2013, she called the district clerk’s office and was informed that
    Kelly refused to accept service for Skegrud and gave the constable Skegrud’s
    California address with an incorrect zip code. Butler claimed she gave the district
    clerk’s office the correct zip code and mailed a copy of Kelly’s December 19,
    2011 letter to Butler listing Skegrud’s address (with the correct zip code) to the
    clerk.
    Butler’s summary-judgment evidence provided no basis for her belief that
    Skegrud had been served. Her response seemed to imply that it was the duty of
    the district clerk and the constable to effect service after the constable returned
    the first citation unexecuted and Butler provided the district clerk with the correct
    zip code. But this assumption was unreasonable as the clerk and constable
    were under no duty to serve Skegrud under these circumstances. It is the clerk’s
    duty to issue citation upon the request of a party and deliver it as directed by the
    requesting party. See Tex. R. Civ. P. 99(a) (“Upon the filing of the petition, the
    clerk, when requested, shall forthwith issue a citation and deliver the citation as
    directed by the requesting party. . . . Upon request, separate or additional
    citations shall be issued by the clerk.”). The party requesting the citation, not the
    11
    clerk, is responsible for obtaining service. See 
    id. Nor is
    it the responsibility of
    the process server to see that service is properly accomplished.           Taylor v.
    Thompson, 
    4 S.W.3d 63
    , 65 (Tex. App.—Houston [1st Dist.] 1999, pet. denied);
    Gonzalez v. Phoenix Frozen Foods, Inc., 
    884 S.W.2d 587
    , 590 (Tex. App.—
    Corpus Christi 1994, no writ). “[M]isplaced reliance on the process server does
    not constitute due diligence.” 
    Taylor, 4 S.W.3d at 65
    ; see also Jennings v. H.E.
    Butt Grocery Co., No. 04-97-00266-CV, 
    1998 WL 88625
    , at *3 (Tex. App.—San
    Antonio Mar. 4, 1998, pet. denied) (not designated for publication) (holding that
    counsel’s reliance upon an “employee or the process server does not constitute
    due diligence in procuring service of citation because any erroneous assumption
    does not constitute excuse for delay in service of citation.”).        There is no
    evidence in the record that Butler requested that the citation be reissued or that
    any further service attempts be made until March 2014.
    We conclude Butler’s delay in service shows a lack of diligence as a matter
    of law.   The summary-judgment evidence established a lack of any effort to
    secure service for over a year after the expiration of the limitations period and her
    initial unsuccessful attempt at service, and Butler failed to provide a valid or
    reasonable explanation for her delay in serving Skegrud.         Thus, there is no
    genuine issue of material fact as to whether Butler acted with the requisite
    12
    diligence to prevent summary judgment. See 
    Proulx, 235 S.W.3d at 216
    . We
    overrule Butler’s second issue.6
    Conclusion
    Having overruled both of Butler’s issues, we affirm the trial court’s order
    granting Skegrud’s motion for summary judgment.
    /s/ Anne Gardner
    ANNE GARDNER
    JUSTICE
    PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
    DELIVERED: July 9, 2015
    6
    Butler also argued that the trial court’s March 22, 2013 order sustaining
    the district court clerk’s contest to her affidavit of indigence tolled the statute of
    limitations until September 30, 2013, when the trial court permitted her to
    continue her case without paying costs. Butler does not cite, nor have we found,
    any authority supporting this contention.
    13