Jennifer Samaniego v. Alieda Silguero

ACCEPTED
03-14-00795-CV
6167020
THIRD COURT OF APPEALS
AUSTIN, TEXAS
7/21/2015 11:29:56 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00795-CV
FILED IN
3rd COURT OF APPEALS
IN THE AUSTIN, TEXAS
THIRD COURT OF APPEALS 7/21/2015 11:29:56 PM
JEFFREY D. KYLE
AT AUSTIN Clerk
Jennifer Samaniego
Appellant
v.
Alieda Silguero
Appellee
On Appeal from the County Court at Law No. 2,
Travis County, Texas
BRIEF OF APPELLEE
NADIA RAMKISOON
State Bar No. 24076635
e-mail:
nadia.ramkissoon@famersinsurance.com
CLARK, TREVINO & ASSOCIATES
1701 Directors Blvd. Ste. 920
Austin, Texas 78744
(512) 445-1591
(512) 383-0503 (Facsimile)
ATTORNEY FOR APPELLEE
TABLE OF CONTENTS
INDEX OF AUTHORITIES.......................................................................................i
STATEMENT OF THE CASE .................................................................................. 2
ISSUE PRESENTED ................................................................................................. 2
The trial court did not err when granting Appellee Alieda
Silguero’s motion for summary judgment. Appellant has failed to
sustain her burden of proof regarding the delay in serving
Appellee Alieda Silguero and lack due diligence was established as
a matter of law.
STATEMENT OF FACTS ........................................................................................ 2
SUMMARY OF THE ARGUMENT ........................................................................ 3
ARGUMENT AND AUTHORITIES ........................................................................ 4
CONCLUSION .......................................................................................................... 6
PRAYER .................................................................................................................... 6
CERTIFICATE OF COMPLIANCE ......................................................................... 7
CERTIFICATE OF SERVICE .................................................................................. 7
INDEX OF AUTHORITIES
CASES
First Gen. Realty Corp. v. Maryland Caus. Co, 981 S.W.2d 465 (Tex. App—
Austin 1998, pet. denied) ........................................................................................... 6
Sanchez v. Providence Memorial Hospital; 679 S.W.2d 732, 732-733 (Tex. App.—
El Paso 1984, no writ) ................................................................................................ 6
Dura-Stitlts Com. v. Zachry, 697 S.W.2d 658, 659, (Tex. App.—Houston [1st
Dist.]1985, writ refused, n.r.e) .................................................................................. 6
Carter v. MacFadyen, 93 S.W.3d 307 (Tex. App.—Houston [14th Dist.] 2002, pet.
denied) .................................................................................................................... 7, 8
Parson v. Turley, 109 S.W.3d 804, 808-809 (Tex. App.—Dallas, 2003, no pet.) .... 7
Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826 (Tex.1990) ............................ 7
Zacharie v. U.S. Nat. Resources, Inc., 94 S.W.3d 748 (Tex. App.—San Antonio
2002, no pet.) ......................................................................................................... 7, 8
Instrument Specialties Co. v. Texas Employment Comm'n, 924 S.W.3d 420 (Tex.
App.—Fort Worth 1996, pet. denied) ........................................................................ 7
Rodriguez v. Tinsman & Houser, 13 S.W.3d 47, 49-52 (Tex. App.--San Antonio
1999, pet. denied) ....................................................................................................... 8
Broom v. McMaster, 992 S.W.2d 659 (Tex. App.—Dallas 1999, no pet.) ............... 8
McGuire v. Federal Dep. Ins. Corp., 561 S.W.2d 213 (Tex. Civ. App.—Houston
[1st dist.] 1997, no writ).............................................................................................. 8
Holt v. D’Hanis State Bank, 993 S.W.2d 237 (Tex. App—San Antonio 1999, no
pet.) ......................................................................................................................... 8
Webster v. Thomas, 5 S.W.3d 287, 290-291 (Tex. App.—Houston, [14th Dist.] 199,
no pet.)........................................................................................................................ 8
i
Roberts v. Padre Island Brewing, Inc., 28 S.W.3d 618, 621 (Tex.App.—Corpus
Christi 2000, pet denied) ............................................................................................ 9
Gant v. De Leon, 786 S.W.2d 259 (Tex. 1990)(per curiam)................................... 12
STATUTES AND RULES
TEX. CIV. PRAC. & REM. CODE ANN. §16.003(A) VERNON 2003 ............................... 6
ii
NO. 03-14-00795-CV
IN THE
THIRD COURT OF APPEALS
AT AUSTIN
Jennifer Samaniego
Appellant
v.
Alieda Silguero
Appellee
On Appeal from the County Court at Law No. 2,
Travis County, Texas
BRIEF OF APPELLEE
TO THE HONORABLE COURT OF APPEALS:
Alieda Silguero respectfully asks the Court to dismiss Appellant’s appeal for
due diligence and the judgment of the trial court that Appellant Jennifer Samaniego
take nothing on her claims and respectfully shows the following:
STATEMENT OF THE CASE
Plaintiff/Appellant Jennifer Samaniego sued Defendant/Appellee Alieda
Silguero for personal injury damages allegedly arising from an automobile
accident that occurred on May 2, 2011. (CR 7) Appellee filed a Motion for
Summary Judgment on June 26, 2014 based on Appellant’s failure to exercise due
diligence in serving Appellee. (CR 33-37) Appellee’s Motion for Summary
Judgment was granted by the trial court on November 18, 2014. (CR 81)
ISSUE PRESENTED
The trial court did not err when granting Appellee Alieda Silguero’s motion
for summary judgment. Appellant Jennifer Samiengo has failed to sustain her
burden of proof regarding the delay in serving Appellee Alieda Silguero and lack
due diligence was established as a matter of law.
STATEMENT OF FACTS
The Appellant seeks damages allegedly arising from an automobile accident
occurring on May 2, 2011. (CR 7) The Appellant alleges that she was rear ended
by Appellee. (CR 7) Appellant alleges that her damages were proximately caused
by Appellee’s negligence. The original petition was filed on May 2, 2013. (CR 6,
34). The attorney for the Appellant at the time, Steve White, filed the lawsuit.
(CR6) A citation was issued for Appellee on May 2, 2013. (CR 50) Appellee
2
received a letter dated October 1, 2013 from her attorney stating that he suffered a
stroke and that her case would be given to Thomas Crosley. (CR 66) Before
Appellant’s attorney suffered a stroke no attempts of substitute service were made
on Appellee. In April of 2014, Appellant hires Anthony Colton as her attorney.
(CR 85) An amended petition was filed by Appellant on April 23, 2014 which now
untimely included Paulino Silguero, III, Appellee’s father. (CR 19) He was joined
into the lawsuit almost a year after the statute of limitations had expired. A new
citation was issued for Appellee and her father on April 24, 2014. (CR 44) Service
of process was not accomplished until June 16, 2014 on Appellee. (CR 44) This
was over a year after the expiration of the statute of limitations.
Appellee and her father filed their Answer on June 26, 2014 asserting a
general denial, affirmative defense of statute of limitations, and a motion for
summary judgment. (CR 33) Appellant filed a notice of nonsuit as to her claims
against Paulino Silguero, III on October, 10, 2014. (CR 71) Appellee’s Motion for
Summary Judgment was heard on October 17, 2014. (CR 70) On November 18,
2014, Appellee’s Motion for Summary Judgment was granted by the trial court.
(CR 81)
SUMMARY OF THE ARGUMENT
Appellant filed suit on the last day before the statute of limitations tolled.
Appellant failed to exercise due diligence in serving Appellee with process.
3
Appellee filed her answer raising due diligence as an issue and sought Summary
Judgment. Upon filing for Summary Judgment, the burden of proof shifted to
Appellant to explain the delay. Appellant failed to sustain the burden of proof by
asserting a reasonable explanation for the delay in service, and Appellants lack of
due diligence was established as a matter of law. Therefore this Court should
affirm the summary judgment in favor of Appellee.
ARGUMENT AND AUTHORITIES
A. Due Diligence was not exercised by Appellant
The Appellant had two years from the date of the accident to bring her
action against Appellee. The Texas Civil Practice and Remedies Code sets the
limitations period for tort claims based on negligence at two years. Tex. Civ. Prac.
& Rem Code Ann. §16.003(a) (Vernon 2003). In order for a suit to be timely filed
under a two year limitations period, it must be filed within two years of the date
when an alleged wrongful act causes a legal injury. First Gen. Realty Corp. v.
Maryland Cas. Co., 981 S.W.2d 465, 501 (Tex. App—Austin 1998, pet. denied).
Mere filing of a lawsuit does not alone toll limitations; an action is timely
brought only when the Plaintiff both files a petition and exercises due diligence in
having the Defendant served. Sanchez v. Providence Memorial Hospital; 679
S.W.2d 732, 732-733 (Tex. App.—El Paso 1984, no writ); Dura-Stitlts Com. v.
Zachry, 697 S.W.2d 658, 659, (Tex. App.—Houston [1st Dist.] 1985, writ refused,
4
n.r.e.). Due diligence is determined by looking at the time taken and the effort
expended by the plaintiff in securing service. Carter v. MacFadyen, 93 S.W.3d
307, 313 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). The test for due
diligence is whether a Plaintiff acted (1) as an ordinary prudent person would act
under the same circumstances and (2) was diligent up until the time the Defendant
was served. Parson v. Turley, 109 S.W.3d 804, 808-809 (Tex. App.—Dallas, 2003,
no pet.). Even a considerable amount of ineffective activity does not constitute due
diligence if easily available and more effective alternatives are ignored. Carter v.
MacFadyen, 93 S.W.3d 307, 314-315 (Tex. App.—Houston [14th Dist.] 2002, pet.
denied).
When a defendant raises the defense of limitations and the failure to timely
serve the defendant, the burden shifts to the plaintiff to explain any delay. Murray
v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990); Carter v.
MacFadyen, 93 S.W.3d 307, 313 (Tex. App.—Houston [14th Dist.] 2002, pet.
denied). A lack of diligence may be found as a matter of law if no excuse is offered
for a delay or if the plaintiff's acts conclusively negate diligence. Zacharie v. U. S.
Nat. Resources, Inc., 94 S.W.3d 748, 754 (Tex. App.—San Antonio 2002, no pet.);
Instrument Specialties Co. v. Texas Employment Comm 'n, 924 S.W.3d 420, 422
(Tex. App.—Fort Worth 1996, pet. denied).
5
Further, merely offering an explanation does not necessarily raise a fact
issue precluding summary judgment; the explanation must be one that is
reasonable and valid. Rodriguez v. Tinsman & Houser, 13 S.W.3d 47, 49-52 (Tex.
App.—San Antonio 1999, pet. denied). The plaintiffs excuse must show a bona
fide intent that process be issued and served and must demonstrate how due
diligence was exercised in the issuance and service of citation. Broom v.
McMaster, 992 S.W.2d 659, 664 (Tex. App.—Dallas 1999, no pet.); McGuire v.
Federal Dep. Ins. Corp., 561 S.W.2d 213, 215- 216 (Tex. Civ. App.—Houston [1st
Dist.] 1977, no writ). Further, the evidence presented must explain every period of
delay. Carter v. MacFadyen, 93 S.W.3d 307, 313 (Tex. App.—Houston [14th Dist.]
2002, pet. denied). “An invalid explanation of delay, like no explanation for delay,
constitutes lack of diligence as a matter of law.” Rodriguez v. Tinsman & Houser,
13 S.W.3d 47, 49-51 (Tex. App.—San Antonio 1999, pet. denied).
Texas courts have held that unjustified delays of as little as one month,
Rodriguez v. Tinsman & Houser, 13 S.W.3d 47 (Tex. App.—San Antonio 1999,
pet. denied), three months, Holt v. D'Hanis State Bank, 993 S.W.2d 237 (Tex.
App.—San Antonio 1999, no pet.), four months, Webster v. Thomas, 5 S.W.3d
287, 290-291 (Tex. App.—Houston, [14th Dist.] 199, no pet.), and five months,
Zacharie v. U. S. Nat. Resources, Inc., 94 S.W.3d 748, 754 (Tex. App.—San
Antonio 2002, no pet. h.), constitute a lack of due diligence as a matter of law.
6
Plaintiff cannot rely on the process server’s attempts to personally serve
Defendant. It is the responsibility of the person requesting service, and not the
process server, to see that service is properly accomplished. Roberts v. Padre
Island Brewing, Inc., 28 S.W.3d 618, 621 (Tex. App.—Corpus Christi 2000, pet
denied), citing Tex. R. Civ. Proc. 9(a) and Gonzalez v. Phoenix Foods, supra.
The original petition was filed on May 2, 2013 with a citation issued by the
Travis County Clerk on May 2, 2013. Appellant wants the court to believe that
because of the insurance company she had to seek counsel. She insinuates an idea
that she sought counsel right before the statute tolled. This is simply not the case.
Appellant was represented by an attorney previous to the expiration of the statute
of limitations a year prior. The insurance company’s knowledge is not relevant to
the due diligence of the Appellant serving the Appellee. There is no evidence that
the insurance company had anything to do with the Appellant filing the lawsuit on
the day of the statute. The duty is on the Appellant not only to file a timely lawsuit
but also to see that service is properly accomplished.
After the lawsuit was filed, Appellant claims that service was attempted
twice on May 9, 2013, but there is no evidence that such service was attempted by
a private process server. There is no affidavit from the private process server.
Neither the private process server nor the private process server’s agency is named
and there is no information about the attempt to locate or serve Appellee. There is
7
no reason given by the process server as to why the Appellee could not be served.
From May 2, 2013 up until October of 2013, when Appellant receives the letter
from her attorney’s office, there is no attempt of service on the Appellee nor any
evidence to demonstrate how due diligence was exercised in the service of citation
or an explanation of this period of delay. Furthermore, there is no evidence that
there was an attempt for substitute service at this time either. The Appellant failed
to satisfy her burden of offering a reasonable and valid excuse of the five month
delay in serving Alieda Silguero from May 2, 2013 to October of 2013.
Appellant wants this court to believe that her attorney was incapacitated for
the entire eleven months. This is simply not the case and there is no evidence to
support this suggestion. There was a five month time period between when the
lawsuit was filed and her attorney’s letter about the stroke in which time nothing
was done to serve the citation to Appellee and there is no reasonable explanation of
such. Then after the Appellant receives notice of her attorney’s condition, she still
does not attempt to serve Appellee until she engages a new attorney on April 29,
2014. Appellant claims that in November 2013 attorney Crosby would not take her
case. From October 2013 until April of 2014, Appellant became ProSe, but still
had the duty to act as ordinary prudent person would have acted under the same or
similar circumstance as she was the person requesting service. Between October
2013 and April of 2014, Appellant’s explanation that she was trying to find a new
8
attorney is not a reasonable and valid explanation for the delay. There is no
evidence that the Appellant attempted to find another attorney except for a self-
serving affidavit by Appellant. Then on June 3, 2014 a motion for substitute
service was filed twelve months after the original lawsuit.
Appellant claims that it only took six weeks after substitute service was filed
on the amended petition to serve Appellee. Appellant relies on this six week period
to attempt to show due diligence. However, this still doesn’t explain or account for
the time period between May 2, 2013 and October 1, 2013 where there is no
evidence of an attempt of service or substitute service. Nor does it account for any
service attempts during October 1, 2013 to April 2014; there were not any
attempts.
B. Appellant’s cases relied upon are not analogues to this case
Proulx v. Wells1-The Appellant relies on this case as mentioned in her brief,
however, the Appellant fails to note that the Plaintiff in the Proulx case attempted
to serve the Defendant over thirty times in a nine month period. Additionally there
was evidence that the Defendant in Proulx was actively avoiding service.2 The
Plaintiff in the Proulx case went so far as to hire a private investigator.3 There was
actual summary judgment evidence that demonstrated the service, attempts on
1
Proulx v. Wells 235 S.W. 3rd 213 (Tex. 2007)
2
Id. at 216
3
Id.
9
service, and the Defendant’s avoidance. The court noted that the circumstances
presented in the case was far different from those in which court have found lack
of diligence as a matter of law.4 The Court even distinguished in the Proulx
opinion that they have previously held, such as in the Gant5 case, against a Plaintiff
who failed to provide explanations for three service periods tolling for thirty eight
months.6 The Appellant in this case has no evidence of the attempts of service nor
any evidence that the Appellee was avoiding service, nor has provided any
evidence explaining delay of service between May 2, 2013 to October 2013,
October 2013 to November 2013 and November 2013 to April of 2014. Appellant
cannot rely on the Proulx case because the facts are not analogous and the
Appellant did not make continuous service attempts on the Appellee nor was the
Appellee avoiding service.
Next the Appellant relies on NETCO, Inc. v. Montemayor.7 Again, the
Plaintiffs in this case made numerous attempts to serve the Defendant. Again, the
court held that it is the Plaintiff’s burden to explain every lapse of effort or period
of delay.8 The court’s determination on diligence against NETCO relied on the
fact that NETCO failed to maintain a correct address for their registered agent with
4
Id. at 217
5
Gant v. DeLeon 786 S.W. 2nd 259 (Tex. 1990)
6
Proulx at 217
7
NETCO, Inc. v. Montemayor 352 S.W.3d 733 (Tex. App.−Houston [1st Dist.] 2011, no pet.)
8
Id. at 739
10
the Secretary of State as required by law.9 The court stated that the evidence
showed that Plaintiffs attempted to serve NETCO four times at the address they
had with the Secretary of State and that service for corporations is guided by the
Texas Business Organization Code.10 It was NETCO’s duty to maintain a proper
address with the Secretary of State in order to do business in the State of Texas.
The NETCO case is not analogous to Appellant’s case because there is no evidence
of attempts of service, nor is there an explanation for the lapse of delay between
May 2, 2013 and October 2013, nor is the Appellee required to keep an address
with the Secretary of State. Furthermore, service on Appellee is not guided by the
Texas Business Organization Code nor did the secretary of state become agent for
service for Appellee.
Lastly, Appellant relies on Auten v. DJ Clark.11 In Auten the court held for
the Plaintiffs as they were able to show an explanation for three periods of a delay
in service. The process server for the Plaintiffs in the Auten case provided three
affidavits of his attempt of service and detailed his attempts.12 The affidavits were
also prepared because counsel for the Plaintiffs was going to file a motion for
substitute service.13 The second delay, while counsel did become incapacitated, he
9
Id. at 740
10
Id. at 741
11
Auten v. DJ Clark, Inc. 209 S.W.3d 695 (Tex. App.−Houston [14th Dist.] 2006, no pet.)
12
Id. at 699, 700
13
Id.at 700, 701
11
did not release the Plaintiffs as his clients.14 The third delay was due to the clerk’s
office and order of the court on substitute service. This case is distinguishable from
Appellant’s case because there is no affidavit from the process server which
attempted service on Appellee from May 2, 2013 to October 2013, no attempt to
file a motion for substitute service until June 3, 2014, and the court did not hold up
or delay service on the Appellee.
CONCLUSION
Appellant failed to show that she used due diligence in her attempt to serve
Appellee. There was a time period before her attorney became ill in which no
attempts of service or substitute service were made on Appellee. By the time
Appellee was served there was an eleven month delay in service. Therefore, the
appellate court should dismiss this appeal for want of prosecution or affirm the
final summary judgment in Appellee’s favor because Appellant failed to meet her
burden.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Alieda Silguero respectfully
asks the appellate court to affirm the judgment of the trial court that Appellant take
nothing on her claim against Alieda Silguero, and for all other relief to which
Alieda Silguero may be justly entitled, at law or in equity.
14
Id. at 702
12
Respectfully submitted,
CLARK, TREVINO & ASSOCIATES
1701 Directors Blvd. Ste. 920
Austin, Texas 78744
(512) 445-1591
(512) 383-0503 (Facsimile)
By: /s/Nadia Ramkissoon____
Nadia Ramkissoon
State Bar No.24076635
E-mail:
nadia.ramkissoon@farmersinsuarnce.com
ATTORNEY FOR APPELLEE
CERTIFICATE OF COMPLIANCE
I certify by my signature above that I have reviewed Brief of Appellee and
have concluded that every factual statement in it is supported by the Clerk’s
Record and that the number of words in this document as allowed by TEX. R. APP.
P. 9.4(i)(2) (B) is 2,564.
CERTIFICATE OF SERVICE
I hereby certify by my signature above that a true and correct copy of the
document has been delivered by certified mail, return receipt requested, and or
facsimile and or e-mail to the attorneys of record as listed below on the 21st day of
July, 2015:
Leif A. Olson
Attorney at Law
PMB 188
4830 Wilson Road, Suite 300
Humble, Texas 77396
(281) 849-8382
/s/Nadia Ramkissoon
Nadia Ramkissoon
13