State Office of Risk Management v. Eva Jurode ( 2005 )

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Opinion issued January 13, 2005



In The

Court of Appeals

For The

First District of Texas

NO. 01-03-01177-CV

STATE OFFICE OF RISK MANAGEMENT, Appellant

V.

EVA JURODE, Appellee

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Cause No. 2002-19481

MEMORANDUM OPINION

          On April 17, 2002, appellant, State Office of Risk Management (“SORM”), filed a subrogation action against appellee, Eva Jurode, as a result of an automobile accident occurring on May 8, 2000. The trial court granted Jurode’s motion for summary judgment on a limitations ground, because SORM lacked reasonable diligence in securing service upon Jurode. SORM contends that the trial court erred in granting summary judgment. We affirm.

Facts and Procedural History

          On May 8, 2000, Brenda Sharlow, in her capacity as an employee of the Texas Department of Public Safety, conducted Jurode’s driver’s license driving test. During the test, Jurode lost control of the vehicle and drove into a concrete barrier. Sharlow reported her resulting injuries to her employer and subsequently received workers’ compensation benefits from her employer’s insurance carrier, SORM. SORM alleges that it paid $17,856 in medical and indemnity benefits to Sharlow.          Pursuant to the Texas Labor Code, SORM filed a subrogation action against Jurode on April 17, 2002, to recover the workers’ compensation benefits it distributed to Sharlow. Tex. Lab. Code Ann. §§ 417.001 (Vernon 1996 & Supp. 2004-2005). In its petition, SORM alleged Jurode could be personally served at her residence, and included an address. On May 2, 2002, the constable unsuccessfully attempted to serve the citation and petition on Jurode. The record does not indicate any other attempts to serve Jurode in 2002.

          In June 2002, the attorney in charge of this matter departed, and the case was reassigned to another assistant attorney general. The new attorney did not examine this matter until August 2002. As a result, SORM did not attempt to locate Jurode for service for over a three-month period. In August 2002, SORM unsuccessfully searched for an address for Jurode. In an affidavit filed with its motion for new trial, SORM maintains that the United States Postal Service did not have a valid forwarding address for Jurode, she was not listed in directory assistance, SuperPages.com, Anywho.com, the Harris County Voter Registration rolls, the Harris County Appraisal District records, or the City of Houston Water Utilities records. The affidavit also avers Jurode’s automobile insurer did not possess a valid address or telephone number for her, nor did she leave a forwarding address or other contact information with the apartment manager at her prior residence.

          On September 17, 2002, the trial court dismissed this case for want of prosecution. One month later, SORM apparently filed a motion to reconsider, although it is not a part of the record. In November 2002, the trial court reinstated SORM’s lawsuit against Jurode. SORM contends that the reinstatement impliedly authorized service by publication. The record before us, however, does not include any request to serve Jurode by publication, any affidavit demonstrating the need for such service, nor any order authorizing service by publication.

          Upon discovery that service by publication did not occur, SORM requested a second citation for publication. The court clerk apparently later issued the citation, because the Houston Chronicle published the citation once per week from February 28, 2003 until March 21, 2003. SORM did not include the newspaper notices in its response to Jurode’s motion for summary judgment, but attached them to its motion for new trial.

          Jurode answered SORM’s lawsuit on April 14, 2003. Jurode moved for summary judgment, contending that SORM did not exercise due diligence in its attempt at service, and thus its suit is time-barred. The trial court granted the motion. SORM moved for a new trial, which the trial court denied. This appeal followed.Standard of Review

          The movant for a summary judgment has the burden of showing that no genuine issue of material fact exists and thus it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant moving for summary judgment must either disprove at least one element of each of the plaintiff’s causes of action, or plead and conclusively establish each essential element of its affirmative defense, thereby rebutting the plaintiff’s causes of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).

          Jurode moved for summary judgment on a limitations ground, asserting that SORM never personally had served Jurode, nor had it diligently or properly served her by publication. SORM responds that a fact issue exists as to Jurode’s limitations defense.Discussion

Statute of Limitations

          SORM’s claim is one for personal injury, governed by a two-year statute of limitations. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (Vernon 2002 & Supp. 2004-2005). Accordingly, the statute of limitations in this action expired on May 8, 2002, two years after the automobile accident. SORM filed its lawsuit on April 17, 2002, within the statute of limitations.

          If a cause of action is dismissed for want of prosecution and subsequently reinstated by the trial court, “a dismissed suit after reinstatement stands upon the docket as if it had never been dismissed.” Gaylor v. Fluker, 843 S.W.2d 234, 235 (Tex. App.—Houston [14th Dist.] 1992, no writ) (citing George v. George, 564 S.W.2d 172, 174 (Tex. App.—Tyler 1978, no writ)). Thus, the trial court’s order reinstating the lawsuit placed this case back on the docket, as of its original filing date. Due Diligence in Serving Jurode

          For a suit to fall within a limitations period, a party must both file the petition within the limitations period and exercise due diligence in serving the defendant with citation. See Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990); see also Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990). A plaintiff has a continuing duty to exercise due diligence, both in having a citation issued and obtaining service. See Perry v. Kroger Stores, Store No. 119, 741 S.W.2d 533, 535 (Tex. App.—Dallas 1987, no writ). The date of service relates back to the date of the petition’s filing only if the plaintiff has exercised diligence in obtaining effective service. Gant, 786 S.W.2d at 260. If, as here, a party files its petition within the limitations period, but does not serve the defendant until after the statutory period has run, its suit is time-barred unless it shows that it exercised due diligence in obtaining effective service. Id; see also Rodriguez v. Tinsman & Houser, Inc., 13 S.W.3d 47, 49 (Tex. App.—San Antonio 1999, pet. denied).

          A party exercises due diligence if it (1) acts as an ordinarily prudent party would have acted under the same or similar circumstances; and (2) acts diligently up until the time the defendant is served. Hodge v. Smith, 856 S.W.2d 212, 215 (Tex. App.—Houston [1st Dist.] 1993, writ denied); Rodriguez, 13 S.W.3d at 49.

          The burden is on the defendant to establish that it is entitled to the defense of limitations as a matter of law. Gant, 786 S.W.2d at 260; Holstein v. Fed. Debt Mgmt., Inc., 902 S.W.2d 31, 35 (Tex. App.—Houston [1st Dist.] 1995, no writ). If a defendant affirmatively pleads the defense of limitations and the record shows that plaintiff failed to timely serve the defendant, however, then the burden is on the plaintiff to explain the delay. See Clemons v. Denson, 981 S.W.2d 941, 946 (Tex. App.—Houston [1st Dist.] 1998, pet. denied).

          Here, the limitations period expired on May 8, 2002, three weeks after SORM filed its original petition. The record indicates that SORM did not “serve” Jurode by publication until February 28, March 7, and March 14 of 2003. As SORM did not serve citation upon Jurode within the period of limitations, it has the burden at trial to show diligence in procuring the subsequent issuance and service of citation upon Jurode. Id. In a summary judgment proceeding, SORM need not prove this diligence; rather, Jurode must show that SORM has failed to establish diligence as a matter of law.

          Unexplained delays in effecting service constitute a lack of due diligence. Id. In its motion for summary judgment, Jurode established a delay of nearly a year in attempting service. SORM offered no evidence in its response to Jurode’s motion for summary judgment. In its motion for new trial, SORM offered an affidavit by Susan Torres, a legal assistant in the attorney general’s office. The affidavit avers that a court clerk issued a citation for personal service on April 26, 2002. The constable’s return, dated May 2, 2002 indicates that the attempted service failed due to “bad address, no such apartment # or listing or defendants.” SORM concedes that after this first failed attempt, it took no action to locate Jurode until August 2002. SORM made an internal effort to locate an address for Jurode on August 19 and 21, but found no leads. From August 2002 until January 2003, SORM offered no evidence of any further effort to locate Jurode, nor did it seek any alternative form of service from the trial court. Although SORM contends in its brief that it attempted to serve Jurode via publication in January, service via publication did not occur until late February and March of 2003. Thus, during the eleven-month period from the date in April 2002 when SORM filed its suit and the dates of service by publication in 2003, the only evidence SORM has put forth to demonstrate diligence is a failed attempt at service in May and two days of research in August—offered in a motion for new trial. Moreover, the record contains no request for service by publication and no order from the trial court authorizing such service.

          If the non-movant fails to offer an explanation consistent with diligence, the plaintiff’s delay is unreasonable as a matter of law. Clemons, 981 S.W.2d at 946. We previously have held that an unexplained delay of six and one-half months is, as a matter of law, not due diligence in procuring the issuance and service of citation. See Butler v. Ross, 836 S.W.2d 833, 836 (Tex. App.—Houston [1st Dist.] 1992, no writ); see also Clemons, 981 S.W.2d at 946 (holding that unexplained eight-month delay in service is not due diligence). Texas courts have consistently held that a plaintiff lacks due diligence as a matter of law due based on unexplained lapses for similar periods of time. See, e.g., Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180, 182 (Tex. 1970) (seventeen and one-half months between filing and service); Liles v. Phillips, 677 S.W.2d 802, 809 (Tex. App.—Fort Worth 1984, writ ref’d n.r.e.) (ten months between expiration of statute of limitations and service); Allen v. Bentley Labs., Inc., 538 S.W.2d 857 (Tex. Civ. App.—San Antonio 1976, writ ref’d n.r.e.) (six months between filing and service); Williams v. Houston-Citizens Bank & Trust Co., 531 S.W.2d 434, 436 (Tex. Civ. App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.) (seven and two-thirds months between expiration of first citation and issuance of second citation).

          Here, SORM’s proffered explanation is that the person in charge of the case ceased employment with its office, and the new lawyer did not discover the case for three months. SORM also maintains that in “permitting” it to serve Jurode by publication, the trial court impliedly determined that the SORM used due diligence in attempting to locate Jurode. SORM’s explanation, however, does not account for the delay. Assuming that a lawyer departure explains the initial delay, its new lawyer discovered the case in August, and yet SORM made no further effort to effect any kind of service until early 2003.

          Moreover, Rule 109 requires that the trial court, before permitting service by publication, inquire into the sufficiency of the diligence exercised in attempting to ascertain the residence or whereabouts of the defendant. Tex. R. Civ. P. 109; see also In re A.Y., 16 S.W.3d 387, 389 (Tex. App.—El Paso 2000, no pet.) (stating Rule 109 requires trial court to determine diligence used by plaintiff in locating defendant). The record before us does not contain any evidence that the trial court ever permitted SORM to serve Jurode by publication, that SORM ever requested an order from the trial court granting service by publication, or that SORM made any showing as to the sufficiency of their search efforts to the trial court in an effort to seek permission for an alternative form of service.

          We hold that SORM has failed to offer a reasonable explanation for the eleven-month delay between filing and service as a matter of law. We therefore hold that the trial court did not err in granting Jurode’s motion for summary judgment.Conclusion

          The trial court properly concluded that SORM’s action against Jurode is barred by the statute of limitations. We therefore affirm the judgment of the trial court.

Jane Bland

                                                             Justice

Panel consists of Justices Taft, Jennings, and Bland.