Jacqueline Trice and Kalven Trice v. Cara Tentzer and Bruce Tentzer
Jacqueline Trice and Kalven Trice v. Cara Tentzer and Bruce Tentzer
Opinion
BACKGROUND
Our recitation of the facts is derived from the summary-judgment proof, consisting of Kalven's affidavit, two issued-but-unserved citations, two affidavits of service, invoices of a private investigator hired by the Trices, and two pages of Cara's deposition.
On June 23, 1995, Jacqueline Trice was attempting to make a left-hand turn in Round Rock. The Trices allege that their vehicle was struck from the rear by a vehicle driven by Cara Tentzer causing injuries to Jacqueline and the Trices' daughter, who was also in the car. In September 1996, Kalven began discussions with the Tentzers' insurance company, Dairyland. The Trices' claims involving damage to their car and injury to their daughter were settled, but their claims for Jacqueline's injuries remained. On June 19, 1997, the Trices filed suit against the Tentzers, alleging that Cara Tentzer "carelessly and negligently collided into the rear of [Jacqueline Trice's] vehicle." (1) According to Kalven's affidavit, the Trices "[i]mmediately" contacted the Williamson County Sheriff's Department to serve the citation and the petition. Two citations were issued for the Tentzers on July 8, 1997. (2) The citations reflect that they were not served because the Tentzers had moved and their new address was unknown. On July 21, 1997, the Sheriff's Department ended its attempts to find the Tentzers. Kalven states in his affidavit:
After the Sheriff Department was unsuccessful in their efforts to serve the Tentzers, we contacted Dairyland in order to secure [the Tentzers'] address. According to Dairyland, . . . they did not know the whereabouts of the Tentzers.
. . .
From August 1997 to December 1997, we attempted to find the Tentzers. We called the telephone information and searched the Internet to find their address but [were] unsuccessful. I even went to Round Rock, Texas[] on several occasions in an attempt to locate the Tentzers. (3)
(Footnote added.)
In January 1998, the Trices "gave up [their] independent search" and hired a private investigator. (4) The investigator was able to find the Tentzers after "a comprehensive search," and the Tentzers were served with process on April 3, 1998. In June 1997, the Tentzers had moved from their Round Rock address to a new location in Austin.
The Tentzers filed a general denial and asserted "the affirmative defense of the Statute of Limitations" and that "due diligence in the issuance of citation and/or service [of] process was, and is not timely." The Tentzers moved for summary judgment, alleging that the Trices' claims are "time barred by the statute of limitations when they failed to exercise due diligence in the issuance and/or service of citation." The district court granted the Tentzers' motion, and the Trices appeal, arguing that a fact issue exists regarding whether they exercised due diligence in the service of citation.
DISCUSSION
If a defendant bases its motion for summary judgment on an affirmative defense, as in this case, the defendant must prove all the elements of the defense as a matter of law. See Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984). Once the movant establishes a right to summary judgment, the non-movant must expressly present any reasons avoiding the movant's entitlement and must support the response with summary-judgment proof to establish a fact issue. See Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 907 (Tex. 1982). However,
[w]hen summary judgment is sought on the basis that limitations have expired, it is the movant's burden to conclusively establish the bar of limitations. Where the non-movant . . . pleads diligence in requesting issuance of citation, the limitation defense is not conclusively established until the movant meets his burden of negating the applicability of these issues.
Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975).
The standards for reviewing a summary-judgment motion are well-established: (1) the movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and (3) every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
In their sole issue, the Trices contend that the district court erred by concluding as a matter of law that they did not exercise reasonable diligence in procuring service of citation. The Tentzers maintain that the Trices' lack of action between July 21, 1997 (the date they were informed the Sheriff's Department was ending the search) and January 1998 (the date they hired a private investigator) amounts to lack of diligence as a matter of law.
To toll the statute of limitations, a plaintiff must not only file suit within the limitations period but also must exercise due diligence in procuring the issuance and service of citation. See Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990); Walls v. Travis County, 958 S.W.2d 944, 947 (Tex. App.--Austin 1998, pet. denied). Due diligence is that diligence an ordinarily prudent person would have used under the same or similar circumstances. See Walls, 958 S.W.2d at 947. The existence of diligence is normally a question of fact, but if no excuse is offered for a delay in the service of the citation, "or if the lapse of time and the plaintiff's acts are such as conclusively negate diligence, a lack of diligence will be found as a matter of law." Perry v. Kroger Stores, Store No. 119, 741 S.W.2d 533, 534 (Tex. App.--Dallas 1987, no writ). In a case such as this, the question of due diligence is answered by looking at (1) the time taken to procure citation and/or service and (2) the type of effort or lack of effort the plaintiff expended in procuring service. See Webster v. Thomas, 5 S.W.3d 287, 289-90 (Tex. App.--Houston [14th Dist.] 1999, no pet.).
Time Taken to Procure Service
The Tentzers were not served with citation until approximately nine and a half months after the end of the limitations period. Texas courts have generally held that periods of delay shorter than in this case may constitute a lack of due diligence as a matter of law. See, e.g., Webster, 5 S.W.3d at 290 (four months and ten days); Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex. App.--Corpus Christi 1991, no writ) (five months). The Trices do not argue that the length of time is insufficient to constitute lack of due diligence. Rather, they contend a fact issue exists regarding whether, during that time, they made sufficient efforts to procure citation and service.
Type of Effort Expended to Procure Service
Kalven's affidavit states that during the six-month period between being informed that the Sheriff was no longer looking for the Tentzers and the time they hired a private investigator, the Trices called telephone information, searched the Internet, and went to Round Rock on several occasions. The Trices assert that the affidavit creates a fact issue regarding whether the Trices made reasonable efforts to effect service. The Tentzers assert that Kalven's affidavit is insufficient because (1) it gives no dates for the Trices' actions, thus not showing a consistent level of activity for six months; and (2) the affidavit does not give enough details--it does not specify what was said in the phone calls to the telephone company, it does not reveal what the Trices learned by their actions, it gives no details of the Round Rock trips, it does not tell "what steps were taken to find [the Tentzers]." We agree with the Trices.
The Tentzers rely on two cases that affirmed summary judgments on the ground that the plaintiffs failed to show due diligence as a matter of law. See Webster, 5 S.W.2d at 288; Perry, 741 S.W.2d at 535. (5) In Webster, the plaintiff filed a lawsuit the day before the statute of limitations ran. See Webster, 5 S.W.3d at 288. Three months later, on August 8, a citation was issued. See id. However, the plaintiff's attorney sent the citation to the wrong precinct. See id. It was returned on August 29. See id. Two weeks later, the attorney mailed it to the correct precinct. See id. The constable made 18 attempts to serve the defendant, and the defendant was finally served on October 13. See id. The attorney submitted an affidavit in which he stated that he called the clerk's office "'several times [inquiring] when the citation would be issued.'" Id. at 290. The plaintiff argued that this statement created a fact issue regarding due diligence. See id. The appellate court, however, disagreed and noted that the affidavit reflected that the attorney had called the wrong clerk's office and did not reflect what the attorney had said to that clerk, that there was an additional three-week lapse because the attorney sent the citation to the wrong precinct, and that there was no explanation as to why the attorney took two weeks to send the citation to the correct precinct. See id. at 291. The court found that these actions were "not designed to procure issuance of citation and service" and were "careless and not persistent." Id.
Here, however, the Trices' actions were designed to procure issuance of citation and were not careless. They called telephone information, searched the Internet, and traveled to Round Rock to personally look for the Tentzers. The Trices' actions are not like the mistake-laden actions of the Webster attorney. The affidavit is sufficiently specific to raise a fact issue. (6) Indulging every reasonable inference in favor of the Trices, we hold that a genuine issue of material fact exists as to whether the Trices exercised the diligence of an ordinarily prudent person in procuring service of citation. We sustain the Trices' issue.
CONCLUSION
We reverse the district court's summary judgment and remand this cause to the district court for further proceedings consistent with this opinion.
Lee Yeakel, Justice
Before Justices Jones, Yeakel and Patterson
Reversed and Remanded
Filed: August 10, 2000
Do Not Publish
1. Generally, a cause of action for personal injury is subject to the two-year statute of limitations. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (West Supp. 2000). The Trices do not dispute that two years is the proper limitations time.
2. The Tentzers do not argue that the lapse of time between June 19, when the Trices filed their petition, and July 8, when the district clerk issued the citations, should be considered in deciding whether the Trices exercised due diligence. In their brief and at the summary judgment hearing, the Trices stated that the citations did not issue until July 8 because there was some confusion in the district clerk's office about whether to issue one or two citations. The clerk's office and the Trices' attorney corresponded over this issue. The Tentzers do not dispute the Trices' explanation for the clerk's delay in issuing the citations.
3. In late November 1995, the Trices moved to Arkansas.
4. The invoice from the private investigator indicates that the case was not "received" until February 10, 1998. February 10 is also the date of the first payment.
5. Perry is readily distinguishable because the plaintiff admitted she took no action to secure
service of citation, but instead relied on the court's assurances that service had been accomplished.
See Perry v. Kroger Stores, Store No. 119, 741 S.W.2d 533, 536 (Tex. App.--Dallas 1987, no
writ). Here, the Trices took some action. Their actions were not so slight as to "conclusively
negate diligence." Id. at 534. 6. Although the Tentzers rely solely on cases involving issuance of citation, because they refer
generally to the lack of specificity in Kalven's affidavit, we note that his statements are direct,
unequivocal, and satisfy the Brownlee standard. See Brownlee v. Brownlee, 665 S.W.2d 111, 112
(Tex. 1984) (affidavit is insufficient to create fact issue unless statements are direct, unequivocal,
and perjury can be assigned to them).
efendant was finally served on October 13. See id. The attorney submitted an affidavit in which he stated that he called the clerk's office "'several times [inquiring] when the citation would be issued.'" Id. at 290. The plaintiff argued that this statement created a fact issue regarding due diligence. See id. The appellate court, however, disagreed and noted that the affidavit reflected that the attorney had called the wrong clerk's office and did not reflect what the attorney had said to that clerk, that there was an additional three-week lapse because the attorney sent the citation to the wrong precinct, and that there was no explanation as to why the attorney took two weeks to send the citation to the correct precinct. See id. at 291. The court found that these actions were "not designed to procure issuance of citation and service" and were "careless and not persistent." Id.
Here, however, the Trices' actions were designed to procure issuance of citation and were not careless. They called telephone information, searched the Internet, and traveled to Round Rock to personally look for the Tentzers. The Trices' actions are not like the mistake-laden actions of the Webster attorney. The affidavit is sufficiently specific to raise a fact issue. (6) Indulging every reasonable inference in favor of the Trices, we hold that a genuine issue of material fact exists as to whether the Trices exercised the diligence of an ordinarily prudent person in procuring service of citation. We sustain the Trices' issue.
CONCLUSION
We reverse the district court's summary judgment and remand this cause to the district court for further proceedings consistent with this opinion.
Lee Yeakel, Justice
Before Justices Jones, Yeakel and Patterson
Reversed and Remanded
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