Morales, Juan Raul v. Toland, Cary ( 2000 )

NUMBER 13-99-600-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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JUAN RAUL MORALES,

Appellant,

v.

CARY TOLAND, Appellee.

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On appeal from the County Court at Law No. 2 of Cameron County, Texas.

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O P I N I O N

Before Justices Hinojosa, Yañez, and Chavez

Opinion by Justice Chavez

Appellant Juan Raul Morales appeals a summary judgment in favor of appellee granted on the basis of limitations. Appellant filed a personal injury case against appellee Cary Toland alleging damages from an automobile accident involving the two parties on June 24, 1996. On June 24, 1998, on the eve of the expiration of the statute of limitations, appellant filed this suit against appellee. It was not until March 9, 1999 that appellee was served with a copy of the citation and petition. Appellant argues that the summary judgment is improper because he produced summary judgment evidence that he exercised due diligence in serving appellee with the citation and petition. We disagree.

The running of the statute of limitations is an affirmative defense. See Tex. R. Civ. P. 94. An affirmative defense is a proper basis for summary judgment when it is properly pleaded and supported by uncontroverted summary judgment evidence. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984). When a defendant moves for summary judgment on the basis of an affirmative defense, he must conclusively establish all of the essential elements of the affirmative defense as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Clawson v. Wharton County, 941 S.W.2d 267, 270 (Tex. App.--Corpus Christi 1996, writ denied).

When determining whether a genuine issue of material fact exists, we indulge every reasonable inference and all doubts in the non-movant's favor. Rhone-Poulnec, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). When a defendant pleads the defense of limitations and proves the plaintiff failed to serve the defendant with process in a timely manner, even though the suit was timely filed, the burden shifts to the plaintiff to present evidence explaining the delay. See Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990); see also Lexington Ins. Co. v. Buckingham Gate Ltd., 993 S.W.2d 185, 190 (Tex. App.--Corpus Christi 1999, pet. denied).

Limitations runs from accrual of the cause of action until the suit is filed, provided that the plaintiff exercises diligence to obtain service of process. Martinez v. Becerra, 797 S.W.2d 283, 284 (Tex. App.--Corpus Christi 1990, no writ). If the plaintiff uses due diligence, service after the limitations period expired relates back to the timely filing. Id. The diligence required to meet this test is that which an ordinary prudent person would use under the same circumstances. Id. at 284-85; see Taylor v. State, 4 S.W.3d 63, 65 (Tex. App.--Houston [1st Dist.] 1999, pet. denied).

The question of whether diligence has been exercised is usually a question of fact. Martinez, 797 S.W.2d at 284. However, lack of diligence may be determined as a matter of law, if (1) the plaintiff offers no valid excuse for the delay in serving the defendant, or (2) the lapse of time conclusively negates a lack of diligence. See Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex. App.--Corpus Christi 1991, no writ). An unexplained delay in serving the defendant is a lack of diligence as a matter of law. Hansler, 807 S.W.2d at 5.

It is uncontroverted that appellant did not serve the citation upon appellee until more than eight months after the suit was filed and the statute of limitations had expired. Appellant therefore had the burden to prove that he used due diligence in serving the defendant. Murray, 800 S.W.2d at 830; Martinez, 797 S.W.2d at 284. In January 1998 appellant found an address for appellee in South Padre Island. Six months later, when appellant filed suit, he attempted to serve appellee at a Brownsville address listed on the police report taken at the scene of the accident. Appellant did not attempt to serve appellee at the South Padre Island address.

The sheriff's department attempted service on July 24, 1998, but was unable to do so because the address taken from the police report was incorrect. Approximately seven weeks after initially requesting service appellant contacted the clerk's office to determine if appellee had been served. The clerk's office instructed appellant to contact the sheriff's office. Appellant then called the sheriff's office and learned that service had not been effected because the address did not exist.

Appellant then waited approximately three weeks before making any further attempt to determine appellee's address. On September 1, 1998 appellant contacted the Brownsville post office to confirm that the police report address was not correct. Appellant then contacted Brownsville directory assistance, and was informed that there was no listing in appellee's name. Appellant did not contact directory assistance for any of the other towns in the Brownsville area. Appellant never attempted to serve appellee at the South Padre Island address.

In February, 1999 appellant's attorney was having an unrelated conversation with another attorney, Jaime Saenz, who happened to be acquainted with appellee. Mr. Saenz informed appellant's attorney that appellee is a practicing attorney in Cameron County and provided her with appellee's address. On February 23, 1999, a proper service was issued, and appellee was served on March 9, 1999, more than eight months after appellant had filed suit and the statute of limitations had expired.

This evidence shows that appellant did not use due diligence. Appellant never attempted to serve appellee at the South Padre Island address. Appellant never attempted to locate appellee through his insurance company, which was identified on the police report. Appellant allowed long delays to elapse between attempts to locate appellee. Appellant provides us with no explanation for his failure to be more persistent. It was only by chance that appellant actually found appellee. Appellant asserts that he hired an investigative service to find appellant, but since no evidence of this is in the record, we may not consider this assertion. See El Paso Electric Co. v. Texas Dep't. of Ins., 937 S.W.2d 432, 441 (Tex. 1996).

Appellant argues that the eight-month unexplained delay was due to appellee's fraudulent concealment of his whereabouts. An inference of fraudulent concealment weighs heavily in favor of finding due diligence. Martinez, 797 S.W.2d at 285. In Martinez there were "numerous unexplained connections and cooperative efforts" circumventing proper service of process. Id. Here, there is only an incorrect address on a police report. The address written down by the reporting officer stated the proper street address, but incorrectly wrote Brownsville as the city where appellee lives. Even if viewed as evidence of an attempt at fraudulent concealment of appellee's address, and not a simple mistake, it does not rise to a level sufficient to explain a failure to effect service for eight months. See id. Appellant has not provided a valid justification for why he did not serve appellee until eight months after the statute of limitations expired. See Hansler, 807 S.W.2d at 5. We therefore overrule appellant's issue on appeal.

We AFFIRM the judgment of the trial court.

MELCHOR CHAVEZ

Justice

Do not publish.

TEX. R. APP. P. 47.3.

Opinion delivered and filed this

the 21st day of December, 2000.