Maria Vasquez and Mayra A. Vasquez v. Humberto Aguirre ( 2012 )

MEMORANDUM OPINION
No. 04-11-00736-CV
Maria VASQUEZ and Mayra A. Vasquez,
Appellants
v.
Humberto AGUIRRE,
Appellee
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2010-CI-16677
Honorable Dick Alcala, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Delivered and Filed: June 6, 2012
REVERSED AND REMANDED
Maria Vasquez and Mayra A. Vasquez appeal the trial court’s order granting summary
judgment in favor of Humberto Aguirre. The summary judgment was based on the trial court’s
conclusion that as a matter of law the Vasquezes failed to establish they exercised due diligence
in serving Aguirre. Because we conclude a genuine issue of material fact was raised with regard
to whether the Vasquezes exercised diligence, we reverse the trial court’s judgment and remand
the cause to the trial court for further proceedings.
04-11-00736-CV
BACKGROUND
The accident giving rise to the underlying lawsuit occurred on October 31, 2008. The
Vasquezes filed their lawsuit on October 4, 2010; however, Aguirre was not served with citation
until February 5, 2011, which was after the limitations period expired on October 31, 2010.
Aguirre moved for summary judgment asserting the Vasquezes’ claims were barred by
limitations.
BURDEN AND APPLICABLE LAW
“[O]nce a defendant has affirmatively pled the limitations defense and shown that service
was effected after limitations expired, the burden shifts to the plaintiff to explain the delay.”
Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007). “Thus, 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. “In assessing diligence, 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. “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.” Id. However, “the plaintiff’s explanation of
its service efforts may demonstrate a lack of due diligence as a matter of law, as when one or
more lapses between service efforts are unexplained or patently unreasonable.” Id. “But if the
plaintiff’s explanation for the delay raises a material fact issue concerning the diligence of
service efforts, the burden shifts back to the defendant to conclusively show why, as a matter of
law, the explanation is insufficient.” Id.
-2-
04-11-00736-CV
“Texas courts have consistently held that unexplained delays of five and six months in
requesting issuance and service of citation constitute a lack of due diligence as a matter of law.”
Zacharie v. U.S. Nat. Res., Inc., 94 S.W.3d 748, 754 (Tex. App.—San Antonio 2002, no pet.). In
Proulx, the Texas Supreme Court considered whether a nine-month delay between the time the
suit was filed and substituted service was effected demonstrated lack of diligence as a matter of
law. 235 S.W.3d at 215-16. The following timeline summarizes the service efforts in Proulx:
• May 2, 2003 – lawsuit filed
• May 20, 2003 – process server received citation
• May 21, 2003 – limitations expired
• May 21, 2003 to July 22, 2003 – eleven attempts to serve at given address
• July 31, 2003 – in-house investigator locates three alternative addresses
• August 5, 2003 to September 17, 2003 – twelve attempts to serve
• October 17, 2003 to December 5, 2003 – seven attempts to serve by
second process server
• December 5, 2003 to December 10, 2003 – twenty phone calls made to
defendant’s brother who resided at defendant’s address
• December 5, 2003 – private investigator hired to locate defendant who
concludes defendant was moving to evade service and suggests substitute
service
• January 15, 2004 – motion for substituted service filed
• January 26, 2004 – service effected by substituted service
Id. at 214-15. “The court of appeals identified specific periods of delay in Proulx’s service
efforts, and concluded Proulx was not diligent in effecting service during these times.” Id. The
court of appeals specifically noted a nineteen-day period from the lawsuit’s filing to the first
process server’s receipt of citation; three weeks that passed between dismissal of the suit for
want of prosecution and the filing of a motion to reinstate; a nearly five-month period that passed
before Proulx hired a private investigator to locate the defendant; twenty-four days that passed
before citation was delivered to the second process server; and the overall nine months that
passed between filing of suit and successful service. Id. at 216-17. Nonetheless, the Texas
Supreme Court concluded the mere fact “that some periods of time elapsed between service
-3-
04-11-00736-CV
efforts does not conclusively demonstrate that Proulx was not exercising diligence in his efforts
to locate” the defendant. Id. at 217. “In light of the evidence that was presented regarding
Proulx’s continuous investigation and repeated service attempts, coupled with evidence that [the
defendant] was deliberately avoiding service,” the court concluded that the defendant “failed to
conclusively establish lack of diligence” and held that summary judgment was erroneously
granted. Id.
DISCUSSION
In the instant case, the lawsuit was filed on October 4, 2010, and the Vasquezes’ attorney
retained the services of a process server. The process server stated in her affidavit attached to the
Vasquezes’ summary judgment response that she attempted to serve Aguirre on October 6, 2010,
October 8, 2010, October 11, 2010, November 4, 2010, November 17, 2010, January 3, 2011,
and January 13, 2011. On January 17, 2011, the process server confirmed through an online
search that the property where service was being attempted was owned by Aguirre and also
informed the Vasquezes’ attorney of her unsuccessful attempts. The process server was told the
attorney would further advise her on how to proceed. On February 12, 2011, the process server
was asked to prepare an affidavit of attempted service for use in filing a motion for alternative
service. On February 15, 2011, the process server made a final attempt to serve Aguirre and was
successful.
Although there are some periods of time that elapsed between the service attempts, these
lapses do not conclusively demonstrate that the Vasquezes were not exercising diligence in their
efforts to locate Aguirre. See Proulx, 235 S.W.3d at 217. Overall, in a little less than four
months, eight attempts were made to serve Aguirre, an online search was undertaken to confirm
Aguirre lived at the address where service was being attempted, and a decision was made and
-4-
04-11-00736-CV
actions were taken to pursue alternative service. Because the Vasquezes offered proof of their
diligence and an explanation for the delay in serving Aguirre, the burden shifted to Aguirre to
show why the explanation was insufficient as a matter of law. See id. at 216. We hold that
Aguirre did not do so. Accordingly, the summary judgment evidence raised a genuine issue of
material fact as to whether the Vasquezes acted as ordinarily prudent persons would have acted
under the same or similar circumstances and were diligent up until the time Aguirre was served.
See id. at 216 (setting forth applicable standard); see also Bolado v. Speller, No. 04-06-00535-
CV, 2007 WL 3270764, at *1-2 (Tex. App.—San Antonio Nov. 7, 2007, no pet.) (mem. op.)
(holding fact issue raised where service effected on seventh attempt in little over three month
period).
CONCLUSION
Because Aguirre failed to conclusively establish lack of diligence by the Vasquezes in
effecting service, the trial court’s summary judgment is reversed, and the cause is remanded for
further proceedings.
Catherine Stone, Chief Justice
-5-