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 2006-02

Joan Labay Gundermann and Eric Gundermann v. Bryan Ray Buehring, Tammy May, and Shannon May ( 2006 )


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                                  NUMBER 13-05-278-CV

     

                             COURT OF APPEALS

     

                         THIRTEENTH DISTRICT OF TEXAS

     

                             CORPUS CHRISTI - EDINBURG

     

     

    JOAN LABAY GUNDERMANN

    AND ERIC GUNDERMANN,                                                         Appellants,

     

                                                                 v.                               

     

    BRYAN RAY BUEHRING, TAMMY

    MAY, AND SHANNON MAY,                                                 Appellees.

     

         On appeal from the 329th District Court of Wharton County, Texas.

     

     

                                   MEMORANDUM OPINION

     

            Before Chief Justice Valdez and Justices Rodriguez and Garza

                                Memorandum Opinion by Justice Garza

     

    Appellants, Joan Labay Gunderman and Eric Gunderman, appeal the trial court=s order granting summary judgment in favor of Bryan Ray Buehrig on statute of limitations grounds and in favor of Tammy May and Shannon May on grounds that there was no evidence of negligent entrustment.  By three issues on appeal, appellants argue the trial court erred in granting Bryan=s motion for summary judgment on limitations grounds because (1) a fact issue exists as to whether due diligence was exercised in obtaining service on Bryan; (2) Bryan had notice of the suit prior to the running of the statute of limitations; and (3) Bryan acknowledged the justness of the suit, and thus, under section 16.065 of the Texas Civil Practice and Remedies Code, the claim was revived.  By a fourth issue, appellants contend the trial court abused its discretion in denying their motion for continuance of the hearing on Tammy and Shannon=s no-evidence motion for summary judgment.[1]  For the reasons stated below, we affirm summary judgment.                     

    I.  Background

    On February 28, 2000, Joan and Eric were involved in an automobile accident with a vehicle operated by Bryan Ray Buehrig and owned by his parents, Tammy May and Shannon May. Almost two years later, on February 25, 2002, appellants sued Bryan, for personal injuries, and Tammy and Shannon for negligent entrustment.  Appellants accomplished service of process on Tammy and Shannon on February 27, 2002; however, they did not serve Bryan with citation until sometime between October 25, 2003 and November 15, 2003.[2]  In response to the suit, Bryan filed an answer and a motion for summary judgment asserting that appellants failed to use due diligence in serving him with citation within the two‑year statute of limitations.  See Tex. Civ. Prac. & Rem. Code Ann. ' 16.003 (Vernon 2002).[3]  Tammy and Shannon also argued a no-evidence motion for summary judgment on grounds that appellants could not produce any evidence supporting their claim for negligent entrustment.  Prior to the hearing on the motions, appellants filed a motion for continuance and a response to appellees= motions for summary judgment.  The trial court denied the continuance and granted both the traditional and no-evidence motions for summary judgment.  Appellants then filed a motion to reconsider the summary judgment.  The motion to reconsider was granted, and after another hearing, the trial court affirmed summary judgment in favor of appellees.

    II.  Standard of Review  

    To obtain a traditional summary judgment, a party moving for summary judgment must show that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).  In reviewing the grant of a summary judgment, we must indulge every reasonable inference and resolve any doubts in favor of the non-movant. Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 549.  In addition, we must assume all evidence favorable to the non-movant is true.  Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 548‑49. 


    Statute of limitations is an affirmative defense.  Tex. R. Civ. P. 4.  A properly pleaded affirmative defense, supported by uncontroverted summary judgment evidence, may serve as the basis for summary judgment.  Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991); Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990); Taylor v. Thompson, 4 S.W.3d 63, 64 (Tex. App.BHouston [1st Dist.] 1999, pet. denied).  When a defendant moves for summary judgment on an affirmative defense, he must conclusively prove all the essential elements of the defense as a matter of law, leaving no issues of material fact.  Gant, 786 S.W.2d at 260; Montgomery v. Kennedy, 669 S.W.2d 309, 310‑11 (Tex. 1984); Taylor, 4 S.W.3d at 65.  If a defendant's motion for summary judgment shows a lack of timely service, the burden shifts to the plaintiff to explain the delay.  See Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990).


    The established rule is that filing a suit will not toll the running of the statute of limitations. Murray, 800 S.W.2d at 830; Taylor, 4 S.W.3d at 65.  To effectively interrupt the statute of limitations, a plaintiff must file suit within the limitations period and continuously exercise due diligence in procuring the issuance and service of citation.  Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex. App.BCorpus Christi 1991, no writ) (citations omitted).  When a plaintiff files suit within the limitations period, but fails to serve the defendant until after the statutory period has expired, the date of service may relate back to the date of filing if the plaintiff exercised diligence in effecting service.  Id.; Gant, 786 S.W.2d at 260.  The plaintiff must exercise due diligence in the issuance and service of citation.  Murray, 800 S.W.2d at 830; Taylor, 4 S.W.3d at 65.  Because, in the present case, appellants failed to serve citation on Bryan within the period of limitations, they had the burden to prove that they used due diligence in procuring the subsequent issuance and service of citation on Bryan.  See Gant, 786 S.W.2d at 260; Taylor, 4 S.W.3d at 65.  An unexplained delay in effecting service constitutes a lack of due diligence. Taylor, 4 S.W.3d at 65. 

    Thus, the issue before us is whether the record shows any evidence that appellants used diligence in procuring the issuance and service of citation on Bryan.  Taylor, 4 S.W.3d at 65.  The duty to use due diligence continues from the date the suit is filed until the date the defendant is served.  Id.; see Jimenez v. County of Val Verde, 993 S.W.2d 167, 169 (Tex. App.BSan Antonio 1999, pet. denied).  Generally, the exercise of due diligence is a question of fact.  Taylor, 4 S.W.3d at 65; Hodge v. Smith, 856 S.W.2d 212, 215 (Tex. App.BHouston [1st Dist.] 1993, writ denied).  A fact question exists if the record reflects a reasonable excuse for delay.  Martinez v. Becerra, 797 S.W.2d 283, 285 (Tex. App.BCorpus Christi 1990, no writ).  However, a lack of diligence can be found as a matter of law where the plaintiff offers no valid excuse for lack of service or the lapse of time and the plaintiff's acts or inaction conclusively negate diligence.  Hodge, 856 S.W.2d at 215; Butler v. Ross, 836 S.W.2d 833, 835‑36 (Tex. App.BHouston [1st Dist.] 1992, no writ) (finding lack of diligence where there was a five and one‑half month period of inactivity); Hansler, 807 S.W.2d at 5; Taylor, 4 S.W.3d at 66 (holding that unexplained delay of four months between filing suit and service negated diligence).  The two controlling factors that establish due diligence are (1) whether the plaintiff acted as an ordinary prudent person would act under the same circumstances and (2) whether the plaintiff acted diligently up until the time the defendant was served.  Taylor, 4 S.W.3d at 65; Hodge, 856 S.W.2d at 215.

    III.  Due Diligence

    By their first issue, appellants contend the trial court erred in granting Bryan=s motion for summary judgment on limitations grounds because a fact issue exists as to whether due diligence was exercised in obtaining service. 

    Because Eric was a minor at the time of the accident, we first discuss the statute of limitations as it applies to minors.   Eric was 16 at the time of the accident and thus under a legal disability as provided by section 16.001 of the Texas Civil Practice and Remedies Code.  See Tex. Civ. Prac. & Rem. Code Ann. ' 16.001 (Vernon 2002).  Sections 16.001 and 16.003 together provide a general statute of limitations for minors= personal injury claims.  Section 16.003 establishes a two-year limitations period, while section 16.001 tolls the period until the minor reaches 18 years of age.  Tex. Civ. Prac. & Rem. Code Ann. '' 16.001, 16.003. As such, Eric had two years after attaining the age of 18 to bring suit for the personal injuries sustained during his minority.  See Weiner v. Wasson, 900 S.W.2d 316, 321 (Tex. 1995).  The statute of limitations  commenced to run on Eric=s eighteenth birthday, September 20, 2001.  See id.  Thus, in the present case, although the accident occurred on February 28, 2000, and the statute of limitations would have otherwise run on February 28, 2002, the two-year statute of limitations for Eric=s claims actually ran on September 20, 2003.      


    On appeal, Eric contends that a fact issue exists as to whether he exercised diligence in serving Bryan only 35 days after the statute of limitations ran on his claim. However, in determining due diligence, we do not focus solely on how far outside the limitations period service occurred.  We must consider whether due diligence was exercised from the date suit was filed until the date the defendant was served.  See McCord v. Dodds, 69 S.W.3d 230, 234 (Tex. App.BCorpus Christi 2001, pet. denied) (finding lack of diligence as a matter of law where defendant truck driver was served eight days after the statute of limitations had run and had not been served for over six months after suit was filed and more than four months after his father's discovery responses had been filed); Taylor, 4 S.W.3d at 65.  Thus, the issue before us is whether appellants used due diligence in procuring the issuance and service of citation upon Bryan from the date they filed suit until the date Bryan was served. 

    The record reveals that Bryan filed his motion for summary judgment raising the affirmative defense of limitations based on lack of diligence in obtaining service.  Bryan attached proof showing that the accident occurred on February 28, 2000, that Joan and Eric filed suit on February 25, 2002, and that he was served by publication sometime between October 25, 2003 and November 15, 2003, some 20 months after appellants filed the lawsuit (and 20 months after the statute of limitations had expired as to Joan=s claims).[4]


    Appellants filed a response, attaching the affidavit of Deputy Michael J. Hines, of the Wharton County Sheriff=s Office, in an attempt to show that they had exercised due diligence in obtaining service on Bryan.  Hines= affidavit states he received the original citation for Bryan on February 26, 2002, and that he served Tammy and Shannon at 608 Farenthold in El Campo, Texas on February 27, 2002, but was unable to serve Bryan at that time.  Hines states that Tammy informed him that Bryan was not home at the time, but would return later.  In his affidavit, Hines alleges he made several unsuccessful attempts to serve Bryan at the El Campo address and that during one of the failed attempts he spoke with someone who informed him that Bryan was still living there. Over a year later, on July 7, 2003, Hines received reissuance of citation.  Hines returned to the El Campo address on two separate occasions, July 8 and July 16 respectively, but was still unable to effect service on Bryan. Hines searched the Texas Department of Public Safety database to determine Bryan=s whereabouts and found only the El Campo address.  The affidavit states that the sheriff=s office continued its efforts to serve Bryan from February 27, 2002 until October 2003, when service by publication was requested.  Specifically, the affidavit provides that the sheriff=s office attempted to serve Bryan on February 27, 2002, July 8, 2003, and July 16, 2003. Hines= affidavit also indicates that, when these attempts were unsuccessful, he again searched the Texas Department of Public Safety records and found the El Campo address listed as Bryan=s residence from February 27, 2002 through October 2003.  In July 2003, Hines found an address for a James May at Rt. 3, Box 233, also in El Campo.  Hines went to that address and was informed by Shannon, Bryan=s father, that he would have Bryan contact Hines when he returned from college in Irving.  Some time after this visit, Bryan returned to El Campo and presented himself at the sheriff=s office to accept service.  However, the sheriff=s office refused to serve Bryan because it was Sunday and service of civil citations are not allowed on Sundays.  See Tex. R. Civ. P. 6.

    The record reflects that the first citation was returned unserved on June 13, 2002, and that appellants did not request reissuance of citation until July 7, 2003. This leaves an unexplained lapse of 17 months after the first citation was issued and 13 months after the citation was returned unserved before appellants requested reissuance of citation. The record also reflects that the second citation was returned unserved on October 14, 2003, and that a request to publish citation was filed with the court on October 17, 2003.  The return of service for the service by publication was filed with the court on December 8, 2003, along with newspaper clippings from the El Campo Leader newspaper reflecting that service by publication had run on October 25, November 1, November 8, and November 15, 2003.  


    Even after construing appellants= response to Bryan=s motion for summary judgment in the light most favorable to appellants and indulging all reasonable inferences in their favor, we are still faced with an unexplained delay of approximately 17 months between February 26, 2002, when appellants requested the first citation on Bryan, and July 7, 2003 when appellants requested reissuance of citation on Bryan.  Appellants did not offer any explanation for the lapse of time or delay in requesting reissuance of citation.  In addition, although Deputy Hines= affidavit alleges that the sheriff=s office continued to try to serve Bryan from the time suit was filed until he was served by publication, we find this contention is not supported by the record.  Although Hines= affidavit states that the sheriff=s office attempted service on Bryan on several occasions, Hines= affidavit does not state when or where service was attempted.  Instead, Hines= affidavit reflects only three dates when service was attempted.  In addition, we find Hines= contention that service was continuously attempted from February 2002 through October 2003 unpersuasive because the first citation had been returned unserved to the court on June 13, 2002, and a second citation was not requested until July 7, 2003.  We can only conclude that service was not attempted between June 13, 2002 and July 7, 2003 because citation was not issued during this period.    

    We conclude that appellants failed to raise a fact issue on due diligence because they (1) offered no valid excuse for the delay in service; (2) offered no excuse whatsoever for the seventeen-month lapse between the first and second request for citation, see Rodriguez v. Tinsman & Houser, Inc., 13 S.W.3d 47, 49 (Tex. App.BSan Antonio 1999, pet. denied) (finding lack of diligence as matter of law where plaintiffs offered no excuse for lack of service or lapse of time); and (3) failed to continuously exercise due diligence in an attempt to serve Bryan.  See Carter v. MacFadyen, 93 S.W.3d 307, 314 (Tex. App.BHouston [14th Dist.] 2002, pet. denied) (stating there is no diligence as a matter of law when a plaintiff makes efforts at service, but they were careless and not persistent);  Hansler, 807 S.W.2d at 4 (stating due diligence must be exercised continuously). In addition, we note that in their attempt to demonstrate due diligence, appellants place complete reliance on the acts and efforts of the sheriff=s office, particularly, Deputy Hines; however, mere reliance on a process server is not due diligence.  See Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 590 (Tex. App.BCorpus Christi 1994, no writ) (holding that reliance on a process server and a delay of five months do not, as a matter of law, constitute due diligence in the issuance and service of citation).  Appellants have not stated how, other than requesting citation, they exercised due diligence in serving Bryan.  Accordingly, we overrule appellants= first issue.

     

    IV.  Notice of Suit

    In their second issue, appellants assert their suit should not be barred by limitations because Bryan had notice of the suit prior to the running of limitations.  In support of this contention, appellants argue that the principles of Aequitable tolling@ should apply in this case, analogizing the delay in service in this case to delays caused by misnomer and misidentification.  

    Misnomer occurs where the plaintiff misnames either himself or the correct defendant, but the correct parties are involved.  Enserch Corp. v. Parker, 794 S.W.2d 2, 4‑5 (Tex. 1990); Maher v. Herrman, 69 S.W.3d 332, 338 (Tex. App.BFort Worth 2002, pet. denied).  The parties in the present case were named correctly.  Thus, misnomer does not apply. 

    Misidentification occurs when two separate legal entities with similar names actually exist and the plaintiff sues the wrong one because he is mistaken about which entity is the correct defendant.  Chilkewitz v. Hyson, 22 S.W.3d 825, 828 (Tex. 1999); Enserch Corp., 794 S.W.2d at 4‑5.  Again, all of the parties in the present case were correctly named.  In addition, this Court has previously held that the misidentification exception applies to business entities and not to individual defendants.  See McCord, 69 S.W.3d at 235.  The facts of this case do not support either theory. 

    We construe appellants= argument as a request that this Court extend the concept of equitable tolling to the present case.  However, appellants have not cited any cases in which a Texas court has extended this exception to correctly named defendants who were not diligently served.  We decline appellants= invitation to apply equitable tolling in this case and therefore overrule appellants= second issue.


    V.  Texas Civil Practice & Remedies Code ' 16.065

     

    By their third issue, appellants assert the trial court erred in granting Bryan=s motion for summary judgment on limitations grounds because Bryan acknowledged the justness of their claims.  Appellants rely on section 16.065 of the Texas Civil Practice and Remedies Code which provides:

    An acknowledgment of the justness of a claim that appears to be barred by limitations is not admissible in evidence to defeat the law of limitations if made after the time that the claim is due unless the acknowledgment is in writing and signed by the party to be charged.

     

    Tex. Civ. Prac. & Rem. Code Ann. ' 16.065 (Vernon 1997).  Appellants contend Bryan acknowledged the justness of their claims through the following deposition testimony:

    Q [Appellants= Counsel]:  Do you blame the Gundermans for the accident?

     

    A [Bryan]:                             It was mostly my fault.  But like my stepdad said before, had they kept going straight, I think it would have been avoided.

     

    Although appellants have presented a creative argument, our review of the applicability of section 16.065 to the facts of the present case reveals that section 16.065 has been applied primarily in creditor-debtor relationships where a debtor acknowledges the justness or existence of a claim on a debt that is otherwise barred by limitations.  See e.g., Stine v. Stewart, 80 S.W.3d 586, 591 (Tex. 2002); Bright & Co. v. Holbein Family Mineral Trust, 995 S.W.2d 742, 745 (Tex. App.BSan Antonio 1999, pet. denied); Andrews v. Cohen, 664 S.W.2d 826, 828‑29 (Tex. App.BTyler 1984, writ ref'd n.r.e.); Stefek v. Helvey, 601 S.W.2d 168, 171 (Tex. Civ. App.BCorpus Christi 1980, writ ref'd n.r.e.); Siegel v. McGavock Drilling Co., 530 S.W.2d 894, 896 (Tex. Civ. App.BAmarillo 1975, writ ref'd n.r.e.); Ginsberg v. Leal, 462 S.W.2d 110, 111 (Tex. Civ. App.BWaco 1970, writ ref'd n.r.e.); Miller v. Thomas, 226 S.W.2d 149, 152 (Tex. Civ. App.BAmarillo 1949, writ ref'd).  The present case does not involve a creditor-debtor relationship or the acknowledgment of a debt.  Appellants have not provided us with authority to support their contention that section 16.065 is applicable to a situation in which a defendant acknowledges fault or possible liability for personal injury and we see no compelling reason to extend the application of this section to the present case. Appellants= third issue is overruled.

    VI.  Motion for Continuance

     

    In their fourth issue, appellants contend the trial court abused its discretion by denying their motion for continuance.  Appellants contend that they needed a continuance to conduct discovery in order to properly respond to Tammy and Shannon=s no-evidence motion for summary judgment on the negligent entrustment issue. Specifically, appellants sought additional time to depose Tammy.      


    The denial of a motion for continuance is reviewed under an abuse of discretion standard. Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997) (orig. proceeding). The denial will be reversed if the trial court acted without regard to guiding principles or was arbitrary or unreasonable.  BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002).  In order for a continuance to  be granted, cause must be shown, supported by affidavit.  Tex. R. Civ. P. 251.  Further, if the basis for the requested continuance is "want of testimony," the affidavit must show (1) that the testimony is material, (2) that due diligence has been used to obtain the testimony, (3) that there is an explanation given for the failure to obtain the testimony, and (4) that the testimony cannot be procured from another source. Tex. R. Civ. P. 252; Tri‑Steel Structures, Inc. v. Baptist Found., 166 S.W.3d 443, 448 (Tex. App.BFort Worth 2005, pet. filed).

    Appellants filed suit on February 25, 2002.  Tammy and Shannon filed their first no-evidence motion for summary judgment on the negligent entrustment issue on June 11, 2003.  A second no-evidence motion on the negligent entrustment issue was filed on April 22, 2004, and a third no-evidence motion was filed on March 23, 2005.  The third motion was set for hearing on April 14, 2005.  On April 8, 2005, appellants filed their motion for continuance of the hearing on the no-evidence motion, requesting that the hearing be postponed a minimum of 60 days.  Appellants attached the affidavit of their attorney, Frederick L. Fuhr, which states A[a]dditional time will be needed to review the file, to conduct discovery for the purposes of addressing Defendant=s Motion for Summary Judgment on the negligent entrustment claim in this matter . . . .@  The affidavit also provides that APlaintiffs need to depose Defendant, TAMMY MAY and [have] requested available dates from Defendants= counsel.@  Counsel=s affidavit refers to copies of correspondence from opposing counsel dated July 2, 2004 and December 2, 2004, indicating that Tammy was unable to respond to discovery or attend depositions because she suffered a stroke.  The motion for continuance indicates that Tammy=s deposition is necessary to establish whether Bryan had a habit of being a reckless driver or was otherwise incompetent while driving.  On April 14, 2005, the trial court denied appellants= motion for continuance and granted Tammy and Shannon=s no-evidence motion for summary judgment.                                          


    Appellants= motion for continuance, when viewed in its entirety, does not meet the requirements of rule 252 enumerated above.  A hearing on the no-evidence motion was not held until April 14, 2005.  Appellants had a period of 20 months to conduct discovery in response to the negligent entrustment issue; Fuhr=s affidavit, however, does not explain why appellants failed to obtain Tammy=s testimony after the first no-evidence motion was filed in June 2003, prior to Tammy=s stroke in 2004, or prior to the April 2005 hearing.  Nor does it aver that appellants exercised due diligence in attempting to obtain the testimony.  See Tex. R. Civ. P. 251, 252; Carter v. MacFadyen, 93 S.W.3d 307, 310 (Tex. App.BHouston [14th Dist.] 2002, pet. denied); Dallas Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 235-36  (Tex. App.BDallas 2000, pet. denied).[5]  Moreover, while appellants= motion for continuance states that Tammy=s testimony is necessary to determine whether Bryan was a reckless or incompetent driver, appellants offered no explanation concerning how such additional evidence would have assisted them in raising a material fact question concerning their claims for negligent entrustment. 

    Thus, we find the trial court did not abuse its discretion in denying the motion for continuance, and we overrule appellants= fourth issue.

    We affirm the judgment of the trial court.

     

     

     

    _______________________

    DORI CONTRERAS GARZA,

    Justice

     

    Memorandum Opinion delivered and

    filed this the 2nd day of February, 2006.  


    [1] Other than the denial of their motion for continuance, as it applies to the no-evidence motion for summary judgment, appellants do not challenge the trial court=s granting of the no-evidence motion as it relates to the negligent entrustment issue.

    [2] Bryan was served by publication in the El Campo Leader newspaper.  The publication ran on October 25, 2003 and November 1, 8, and 15, 2003. 

    [3] Eric was 16 at the time of the accident.  Thus, he had two years after attaining the age of eighteen to bring suit for the personal injuries sustained during his minority.   See Weiner v. Wasson, 900 S.W.2d 316, 321 (Tex. 1995).

    [4] On appeal, Bryan takes issue with whether Joan and Eric complied with the requirements of Texas Rule of Civil Procedure 109 in obtaining service by publication.  See Tex. R. Civ. P. 109.  For proper service by publication, a party must comply with rule 109.  Wood v. Brown, 819 S.W.2d 799, 800 (Tex. 1991).  Before service by publication is proper, a party, or their attorney, must file an affidavit with the clerk stating that after exercising due diligence, the whereabouts of the defendant remain unknown.  See id.  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.  Id.; see also In re A.Y., 16 S.W.3d 387, 389 (Tex. App.BEl 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 appellants to serve Bryan by publication, that appellants ever requested an order from the trial court granting service by publication, or that appellants ever provided the trial court with the required affidavit or 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. However, given our conclusion that appellants did not use due diligence, we need not address the issue of whether service by publication was proper.  See Tex. R. App. P. 47.1.   

    [5] We note that although appellants contend that they attempted to obtain Tammy=s deposition on numerous occasions, the correspondence attached to Fuhr=s affidavit indicates appellants did not request a deposition until September 22, 2004.