Andre Forrest v. Stephen Houck

Reversed and Remanded and Memorandum Opinion filed September 28, 2004

Reversed and Remanded and Memorandum Opinion filed September 28, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00583-CV

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ANDRE FORREST, Appellant

V.

STEPHEN HOUCK, Appellee

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On Appeal from the County Court at Law Number 3

Harris County, Texas

Trial Court Cause No. 774289

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M E M O R A N D U M   O P I N I O N

In this appeal we must determine whether the trial court erred in granting appellee Stephen Houck=s motion for summary judgment based on the appellant Andre Forrest=s alleged lack of diligence in serving Houck after the limitations deadline.  Because Forrest has presented some evidence explaining the delay in obtaining service and because Houck has not shown that Forrest=s explanations are insufficient as a matter of law, we reverse and remand.

I.  Factual and Procedural Background

The parties agree about the following facts relating to Forrest=s fraud claim:

!         The statute of limitations for Forrest=s fraud claim against Houck began running on December 15, 1998.

!         Forrest filed his original petition asserting this fraud claim against Houck on June 14, 2002.

!         The statute-of-limitations deadline for this fraud claim was December 15, 2002.

!         Houck was not served until December 27, 2002. 

Houck filed a motion for summary judgment in which he proved that, although Forrest filed suit before the statute of limitations expired, Houck was not served until twelve days after expiration of the limitations period.  The only ground asserted in Houck=s motion was statute of limitations based on Forrest=s alleged failure to exercise due diligence in serving Houck.

In his response in opposition to Houck=s motion for summary judgment, Forrest provided the affidavit of his attorney, E.D. McKinney, Jr., in which McKinney explains the delay in obtaining service as follows:

!         Upon filing suit, McKinney requested a constable to serve Houck at Houck=s place of business.  On or about June 25, 2002, the constable informed McKinney that service had been unsuccessful and that Houck was no longer at that business address.

!         Before filing suit, after the first unsuccessful service attempt, and until Houck was finally served, McKinney searched for Houck.

!         McKinney unsuccessfully attempted to obtain a residence address for Houck.

!         McKinney initially checked a driver=s license database, which reflected that Houck had listed the business address as the address on his driver=s license.

!         McKinney=s office checked this driver=s license database eight times before filing suit and monthly until early December, when McKinney obtained from this database the address at which Houck was finally served on December 27, 2002.

!         McKinney contacted Houck=s probation officer, who refused to provide him with any information concerning Houck=s whereabouts.

!         After the first unsuccessful service attempt, McKinney considered pursuing substituted service on Houck through the probation department but decided not to do so.

!         Forrest also registered with the State=s Victim Assistance Office because Houck had been given shock probation. McKinney asked the contact person at the Victim Assistance Office for Houk=s forwarding address, but she refused to divulge it based on the privilege of confidentiality.

!         McKinney attempted to locate Houck=s parents, hoping to learn something about his whereabouts from them or perhaps attempt substituted service on Houck through his parents. 

!         McKinney tried to contact Houck through a phone number for Houck=s father, but that phone line was no longer in service.  McKinney obtained a residence address for Houck=s parents, but upon further investigation, McKinney learned that Houck=s parents no longer lived there. 

!         Upon learning that Houck=s parents had allegedly defaulted on a bank loan, McKinney contacted the bank=s attorney who informed him that the bank was dismissing its lawsuit against Houck=s parents because the bank had been unable to locate them and serve them with process.

!         McKinney had learned that another person whom Houck had allegedly defrauded was an attorney and that another member of that person=s law firm attended the same church as Houck=s father.  McKinney contacted the other alleged victim to try to obtain the name of the lawyer who attended church with Houck=s father.  However, the other alleged victim did not want to provide this information to McKinney because the person in question had confronted the alleged victim to ask why she was trying to Acheat@ Stephen Houck, the son of one of his fellow church members.

!         Knowing that Houck had been married, McKinney checked the divorce records and learned that Houck and his wife had divorced. Hoping to obtain information about Houck=s whereabouts from his ex-wife, McKinney tried to locate her but was unable to find her. 

!         McKinney considered service by publication and hiring a private investigator but pursued neither because of his client=s limited financial resources.

            !         During the first week of December 2002, McKinney=s paralegal obtained an address for Houck from a driver=s license database C 6524 San Felipe, #404, Houston, Texas 77057.

!         McKinney contacted a private process server and hand-delivered the service information to him on December 5, 2002, so that he could serve Houck at this address.

!         After unsuccessfully attempting service at this address, the private process server reported back that this address was a private mail box service.  McKinney was surprised to learn that this was not Houck=s residence address.

!         McKinney requested that Houck be served by certified mail at this address and called at least three times to check on service until service was finally effected at this address.

Houck did not introduce any evidence that controverted McKinney=s affidavit in this regard.  The trial court granted summary judgment.

II.  Issue and Analysis

In his first issue, Forrest challenges the trial court=s summary judgment based on his alleged lack of due diligence in having Houck served with process.  It is undisputed that Forrest filed suit against Houck before the limitations deadline, but served him after it.  In this situation, filing suit interrupts limitations only if Forrest exercised diligence in serving Houck.  See Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990).  When a defendant moves for summary judgment and shows that service occurred after the limitations deadline, the burden shifts to the plaintiff to produce some evidence to explain the delay.  Brown v. Shores, 77 S.W.3d 884, 887 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  Lack of diligence may be shown as a matter of law based on unexplained lapses of time between the filing of the petition and service on the defendant.  Id.  Once the plaintiff presents an explanation, the burden shifts back to the defendant to show why those explanations are insufficient as a matter of law.  Carter v. MacFadyen, 93 S.W.3d 307, 313 (Tex. App.CHouston [14th Dist.] 2001, pet. denied).  Due diligence is determined by looking at the time taken and the effort expended in procuring service.  Webster v. Thomas, 5 S.W.3d 287, 289B90 (Tex. App.CHouston [14th Dist.] 1999, no pet.).

Houck has the burden to conclusively establish the bar of limitations. Brown, 77 S.W.3d at 887. In deciding whether there is a disputed material fact precluding summary judgment, we take as true all evidence favorable to Forrest, and we indulge every reasonable inference in his favor. See id. 

A.        Did Forrest produce some evidence to explain the delay in serving Houck?

Because Houck=s motion proved that he was served after limitations expired, we must determine if Forrest produced some evidence to explain his delay in effecting service on Houck.  McKinney=s testimony constitutes some evidence showing the following:

!         Forrest acted diligently in promptly requesting service on Houck at the only address that Forrest had for Houck.

!         Forrest continued to act diligently in attempting to locate and effect service on Houck from the filing of the petition until Houck was served.

!         Forrest acted diligently in trying to obtain addresses at which Houck could be served.

!         Forrest promptly attempted to effect service on Houck after obtaining the address at which Houck was ultimately served.

The summary-judgment evidence shows that a major cause of the delay in effecting service on Houck was his use on two occasions of an address other than his residence address for his driver=s license, in apparent violation of Texas law. See Tex. Transp. Code ' 521.121(a)(3) (stating driver=s license must include the residence address of the holder).  The summary-judgment evidence indicates that, if Houck had provided his residence address for his driver=s license, he would have been served well before limitations expired rather than twelve days after limitations expired. Based on this record, we conclude that Forrest has produced some evidence explaining the delay in serving Houck. See Tranter v. Duemling, 129 S.W.3d 257, 259B63 (Tex. App.CEl Paso 2004, no pet.) (holding plaintiff presented some evidence explaining delay in service); Edwards v. Kaye, 9 S.W.3d 310, 315 (Tex. App.CHouston [14th Dist.] 1999, pet. denied) (holding plaintiff presenting some evidence of due diligence in obtaining service).

B.        Has Houck shown that Forrest=s explanations are insufficient as a matter of law?

Because Forrest produced some evidence explaining the delay in effecting service on Houck, we must now determine if Houck has shown that Forrest=s explanations are insufficient as a matter of law.  Houck asserts that Forrest=s explanations are insufficient as a matter of law because they show that he focused on regularly checking the driver=s license records but took no other steps to find Houck through other means, such as checking telephone listings or using Apeople search@ resources available on the internet. This argument is not supported by the record.  McKinney testified that, from the filing of the suit until Houck was served, he searched for Houck and that McKinney unsuccessfully attempted to obtain a residence address for Houck.  A reasonable inference from this testimony is that McKinney searched for Houck=s residence address by ordinary means, such as telephone directories.  Furthermore, McKinney=s affidavit details several attempts to discover Houck=s whereabouts other than checking the driver=s license database.  Moreover, Houck has not alleged or presented evidence that his residence address was contained in any telephone directory or internet search resource. 

Houck also faults Forrest for not trying to obtain substituted service through Houck=s probation office.  Before seeking substituted service through Houck=s probation office, Forrest first would have had to attempt to effect service on Houck there and then he would have had to file a motion and sworn proof showing that the probation office is a Aplace where the defendant can probably be found.@  See Tex. R. Civ. P. 106; Garrels v. Wales Transp., Inc., 706 S.W.2d 757, 759 (Tex. App.CDallas 1986, no writ).  Given the potential difficulty of obtaining proof that Houck=s probation office is a place where Houck can probably be found and convincing the trial court to permit substituted service through the probation office, we conclude that Forrrest=s failure to seek substituted service through Houck=s probation office does not show, as a matter of law, that Forrest=s explanations are insufficient.

Houck also argues that Forrest=s failure to hire a private investigator or attempt service by publication show lack of diligence as a matter of law.  Houck cites no cases holding that such conduct proves lack of diligence as a matter of law, and we conclude that the failure to take such measures does not show lack of diligence as a matter of law.  See Morgan v. Hardy, 57 S.W.2d 204, 207 (Tex. Civ. App.CEl Paso 1933, no writ) (holding that failure to attempt service by publication does not constitute lack of diligence in serving process as a matter of law). 

III. Conclusion

Houck=s only ground for summary judgment was the affirmative defense of limitations.  Because Houck showed that service occurred after expiration of limitations, the burden shifted to Forrest to produce some evidence to explain the delay in effecting service on Houck.  Because Forrest has produced some evidence explaining the delay in effecting service and because Houck has not shown that these explanations are insufficient as a matter of law, Houck has not conclusively proved his entitlement to judgment as a matter of law based on limitations.  Accordingly, we sustain Forrest=s first issue, reverse the trial court=s judgment, and remand for further proceedings consistent with this opinion.^[1]

/s/        Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed September 28, 2004.

Panel consists of Chief Justice Hedges and Justices Frost and Guzman.

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^[1]  Based on our disposition of Forrest=s first issue, we need not address his second issue.