Pamela E. Carias v. Amanda Kay Owens

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-21-00201-CV
________________
PAMELA E. CARIAS, Appellant
V.
AMANDA KAY OWENS, Appellee
________________________________________________________________________
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 19-09-12505-CV
________________________________________________________________________
MEMORANDUM OPINION
Appellant Carias appealed from a take-nothing judgment as to her personal
injury suit against Appellee Owens. In her appeal, Carias argues that the trial court
erred in granting a directed verdict against her on the basis that she failed to exercise
due diligence to effect service of process, and that the applicable statute of
limitations therefore barred her claim. She further argues that the trial court erred in
granting a directed verdict against her on the additional ground that she failed to
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adduce any evidence causally linking her injuries to the accident in question. Finding
no error in the trial court’s directed verdict in Owens’ favor, we affirm the trial
court’s judgment.
Background
On October 14, 2017, Carias and Owens were involved in a motor vehicle
collision, and Carias allegedly was injured as a result of that event. Carias sued
Owens, and for reasons that are not clear in the record, non-suited that case. On
September 12, 2019, Carias again filed suit against Owens, but Owens was not
served with process until November 4, 2019, after the expiration of the two-year
statute of limitations applicable to her case. Tex. Civ. Prac. & Rem. Code Ann. §
16.003(a).1 In her answer, Owens pleaded that Carias failed to exercise due diligence
in effecting service, and that Carias’ case therefore was time barred.
At trial, Carias testified to her injuries and treatment. She indicated that she
had sustained no serious injuries either before this accident or afterward, and she
consequently believed that all of her symptoms were due to that event. She did not
testify about efforts to serve Owens.
1
Section 16.003(a) of the Texas Civil Practice & Remedies Code states that
“a person must bring suit for . . . personal injury . . . not later than two years after the
day the cause of action accrues.”
2
Carias’ treating chiropractor, Sherry Durrett, also testified at trial, but due to
an evidentiary ruling, she was allowed to testify only as a fact witness, rather than
an expert. Accordingly, Durrett’s testimony included only the information contained
in her records and did not encompass the reasonableness or necessity of treatment,
customary fees for the treatment rendered, or the alleged cause-and-effect
relationship between the accident of October 14, 2017 and Carias’ injuries.
Carias also called Owens to testify during Carias’ case-in-chief. Carias’
counsel questioned Owens about the accident, the resulting property damage, and
the acts or omissions that may have caused the collision. Counsel did not ask Owens
anything relevant to Carias’ possible due diligence in obtaining service of process
after the case was refiled on September 12, 2019.
After Carias rested her case, Owens sought, and the trial court granted,
directed verdicts on the issues of limitations and causation. 2 As to Owens’ statute of
limitations defense, the trial court based its ruling on the complete absence of
evidence that Carias exercised due diligence to serve Owens.
Standard of Review
We review directed verdicts using the same standard used to review a
challenge asserting that legally insufficient evidence supports a judgment. See City
2
The trial court also granted directed verdicts regarding Carias’ disfigurement
and future medical expenses; Carias did not object to those rulings; therefore, they
are outside the scope of this appeal.
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of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). When reviewing a directed
verdict, we consider all the evidence in the light that is most favorable to the
nonmovant, and we resolve all reasonable inferences that arise from the evidence
admitted at the trial in the nonmovant’s favor. In re Estate of Sidransky, 420 S.W.3d
90, 95 (Tex. App.—El Paso 2012, pet. denied) (citing King Ranch, Inc. v. Chapman,
118 S.W.3d 742, 750-51 (Tex. 2003)).
Analysis
Texas law is clear: when a defendant is sued, but is not served within the
applicable limitations period, and when the defendant pleads the limitations defense
and demonstrates the untimeliness of service, it is the plaintiff’s burden to show due
diligence in serving the defendant. See Ashley v. Hawkins, 293 S.W.3d 175, 179
(Tex. 2009). Where, as here, the trial record is silent as to any due diligence, the
record shows the necessary due diligence is lacking, and a judgment in the
defendant’s favor is warranted. See Cumpian v. Ventura, No. 09-16-00277-CV, 2018
WL 651746, at *2 (Tex. App.—Beaumont Feb. 1, 2018, no pet.) (mem. op.) (stating
that when a delay in service is not explained, there is a lack of due diligence as a
matter of law). Applying these well-settled principles to the case before us, we
conclude the trial court correctly granted a directed verdict in Owens’ favor.
In the trial court and in this Court, Carias has argued that the precedent
addressing this question should not apply to her case because much of the applicable
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authority discusses the due diligence in the context of summary judgment
proceedings as opposed to a directed verdict. She further observes that many of the
cases involve more substantial delays in effectuating service than occurred in her
case, and that the fifty-three days between filing and service constituted only a
“minor delay” that would not prejudice Owens because Owens was aware of the
lawsuit.
Carias’ attempt to differentiate between summary judgments and directed
verdicts is, for purposes of this case, a distinction without a difference. Either a
summary judgment or a directed verdict may be proper when there is a complete
lack of evidence of a fact vital to the plaintiff’s case. Compare Plunkett v. Conn.
Gen. Life Ins. Co., 285 S.W.3d 106, 111-12 (Tex. App.—Dallas 2009, pet. denied)
(affirming a summary judgment), and Holley v. Hamilton Park United Methodist
Church, No. 05-98-02029-CV, 2001 WL 804498, at *1 (Tex. App.—Dallas July 18,
2001, pet. denied) (not designated for publication) (affirming a directed verdict
granted following the close of the plaintiffs’ case). Both procedures require the trial
court to consider the evidence in the light most favorable to the non-movant. Id.Given the similarities between summary judgments and directed verdicts, there is no
distinction that excuses Carias’ failure to present evidence excusing her delay in
serving Owens simply because the trial court’s ruling resulted from a directed verdict
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rather than a motion for summary judgment. See King Ranch, 118 S.W.3d at 750-
51.
Carias’ argument that the service delay was minimal and non-prejudicial is
similarly unpersuasive because, as the trial court noted, “limitations is a bright line
test[,]” and the only question to be considered was Carias’ alleged diligence in
obtaining service. The trial court was unable to consider nonexistent evidence of due
diligence, and therefore had no other choice but to grant Owens’ motion for a
directed verdict on the limitations issue. Carias’ reliance on Harrell is misplaced
because the evidence before the trial court in that case included evidence of due
diligence, and irrefutably established that most of the delay in serving the defendant
was attributable to the clerk, not the plaintiffs. See Harrell v. Alvarez, 46 S.W.3d
483, 484-86 (Tex. App.—El Paso 2001, no pet.). Accordingly, Harrell does not
support Carias’ proposition that a fifty-three-day interval between filing and service
constitutes is prima facie evidence that she was diligent in serving Owens.
Carias contends that she was denied an opportunity to present evidence of due
diligence, but the record does not support her claim. Instead, the record shows that
Carias did not try to introduce evidence of due diligence either by asking the trial
court to allow her to reopen her case or by making an offer of proof. See Tex. R. Civ.
P. 270; Tex. R. Evid. 103(a)(2); see also Duncan v. Brown, No. 09-17-00447-CV,
2019 WL 3330588, at **2-5 (Tex. App.—Beaumont July 25, 2019, no pet.) (mem.
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op.) (in response to the defense motion for a directed verdict, the plaintiff requested
and received permission to reopen his case; he then successfully presented evidence
of his due diligence in serving the defendant after the expiration of the limitations
period). Carias may not now complain of the alleged exclusion of evidence she never
offered; therefore, she has failed to preserve this purported error for our review. See
Sutton v. Helwig, No. 02-12-00525-CV, 2013 WL 6046533, at *4 (Tex. App.—Fort
Worth Nov. 14, 2013, no pet.) (mem. op.); Tex. R. App. P. 33.1(a).
Even were we to assume Carias had timely presented the information in the
process server’s affidavit of May 13, 2021 3 to the trial court, she still would not have
succeeded in showing she exercised due diligence. This affidavit reflects a total of
only three attempts (including the final, successful, attempt) to serve Owens during
the fifty-three days between the filing of the suit and November 4, 2019, the day
Owens was finally served. See Sharp v. Kroger Tex., L.P., 500 S.W.3d 117, 120
(Tex. App.—Houston [14th Dist.] 2016, no pet.) (explaining that the time frame to
be evaluated for due diligence begins when suit is filed, not when the limitations
period ends). The affidavit does not indicate the dates of the two previous attempts
at service, but instead merely states these attempts occurred in the early evening and
nobody answered the door even though lights were on inside Owens’ residence. This
This affidavit was attached as Exhibit B to Carias’ motion for new trial filed
3
May 26, 2021.
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affidavit also contains the conclusory statement that Owens “actively avoided
service.” This is but a conclusory statement that amounts to no evidence since the
affidavit omits facts that would enable a reasonable trier of fact to find that Carias
exercised due diligence in obtaining service on Owens. See Horton v. Stovall, No.
05-16-00744-CV, 2020 WL 7640042, at **7-8 (Tex. App.—Dallas Dec. 23, 2020,
no pet.) (mem. op.) (explaining that a conclusory affidavit is one that omits the
factual basis underlying the opinion, and further explaining that a conclusory
affidavit does not constitute evidence). Even had Carias asked to reopen the evidence
and presented the affidavit, because it fails to offer any explanation for the delays
between the dates when the process server attempted to obtain service, the trial court
could not have determined that the process server made even a single effort to serve
Owen before limitations expired or used due diligence to serve Owen after
limitations expired.
Carias’ remaining argument, that the trial court infringed upon her due process
rights because it did not require Owens to present her case, and because she had no
notice that Owens would rely on a limitations defense, lacks merit. Not only did
Owens raise the limitations and lack of due diligence in her pleadings, thus affording
Carias ample notice of her burden to show due diligence, 4 but Carias has cited no
4
Owens filed her answer on November 18, 2019, over seventeen months
before the April 28, 2021 trial; this answer appears to have been Owens’ live
pleading at the time of trial. Paragraph 4 of Owens’ answer states that “Plaintiff’s
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applicable authority to support the proposition that the trial court lacked the authority
to grant a directed verdict at the close of Carias’ case. Contrary to Carias’ argument,
Rule 265 does not require a defendant to put on a case, but merely sets out the usual
order of trial. Tex. R. Civ. P. 265; Sutton, 2013 WL 6046533, at *6 (stating that
“there is nothing in the rules of civil procedure that requires a defendant to put on
evidence after a plaintiff’s case.”) Carias’ initial appellate point is overruled.
Conclusion
Because Carias failed to serve Owens before the applicable statute of
limitations expired, and because she also presented no evidence of due diligence to
effectuate service within that time, the trial court correctly found that Carias’ case
was barred by the two-year statute of limitations and granted a directed verdict for
Owens. We therefore need not address Carias’ second appellate argument. See Tex.
R. App. P. 47.1. Accordingly, we affirm the trial court’s judgment.
claim is barred by limitations. More specifically, Defendant asserts that Section
16.003 of the Texas Civil Practice & Remedies Code bars Plaintiff’s claim in that
the Plaintiff failed to use due diligence to serve Defendant with citation within the
two-year limitation period provided by the statute. Plaintiff’s lack of due diligence
in procuring service upon Defendant has caused the statute of limitations to run.”
The unmistakable import of this language belies Carias’ assertion that she had
inadequate notice of Owens’ limitations defense and the necessity of showing her
own due diligence.
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AFFIRMED.
________________________________
CHARLES KREGER
Justice
Submitted on August 12, 2022
Opinion Delivered September 8, 2022
Before Golemon, C.J., Kreger and Horton, JJ.
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