Juan Soto Perez, Jose Ulloa-Sialos, and Keyri Menjivar Individually and as Next Friend of Kendric Menjivar v. Jared Efurd

Citation: Not availableDocket: 01-15-00963-CV

Court: Court of Appeals of Texas; December 27, 2015; Texas; State Appellate Court

Original Court Document: View Document

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Juan Soto Perez and others (appellants) are appealing a summary judgment granted by the 61st Judicial District Court of Harris County, Texas, in favor of Jared Efurd and James Efurd (appellees). The case, initiated on April 9, 2014, involves personal injuries, with the defendants being served on December 12, 2014. The appellees filed a Motion for Summary Judgment on September 17, 2015, arguing the statute of limitations as an affirmative defense, which the trial court accepted on October 16, 2015. The appellants contend that the trial court erred in this decision, questioning whether the ruling constituted reversible error. The case is represented by H.L. Harper Associates, L.L.C., and Edwin M. Shorty, Jr. Associates, while the appellees are represented by Kane, Russell, Coleman & Logan, PC. The document includes sections such as the Index of Authorities, Statement of the Case, Issues Presented, Statement of the Facts, Summary of the Argument, Argument, Prayer, Appendix, Certificate of Compliance, and Word Count.

Appellants, residents of New Orleans, were involved in a rear-end automobile collision in Houston, Texas, on August 30, 2012, resulting in multiple injuries. The appellees, whose last known address was in Mesquite, Texas at the time of the accident, were identified in subsequent legal filings. Appellants filed a petition for damages on April 9, 2014, followed by a First Amended Original Petition on July 28, 2014. Citations were issued on both occasions, with the appellees' correct address being updated to Waxahachie, Texas. Despite multiple attempts by the process server, Gregory D. Harper, to serve the appellees personally, service was not achieved until December 12, 2014, when the citation was attached to the front door of the appellees' residence.

Appellees filed an Original Answer on December 30, 2014, claiming that appellants' claims were barred by the statute of limitations due to a lack of diligence in securing service. Following discovery, appellants moved for summary judgment on September 17, 2015, asserting that the trial court erred in granting summary judgment based solely on the appellees' claims of lack of diligence. Appellants argue that the trial court's ruling contradicts Texas law regarding the diligence required in serving process. They assert that the appellees did not prove a lack of diligence in the appellants' attempts to serve them with the petition.

Allegations in the summary judgment motion against the appellees concerning timely service do not align with Texas law and equitable principles. The appellants demonstrated consistent efforts to serve the appellees despite multiple address changes. According to Texas law, a party seeking summary judgment must prove no genuine issue of material fact exists and is entitled to judgment as a matter of law. When reviewing such motions, all reasonable inferences must favor the non-movant, and evidence supporting the non-movant must be assumed true.

The statute of limitations is an affirmative defense that can support summary judgment if properly pleaded and substantiated by uncontested evidence. A defendant must conclusively prove all necessary elements of an affirmative defense to warrant summary judgment. Plaintiffs are required to file suit within the limitations period and act diligently in serving the defendant. If service occurs after the limitations period but is diligently pursued, it can relate back to the filing date. Determining due diligence involves assessing the plaintiffs' actions against that of ordinary prudent persons.

In this case, the appellants acted with due diligence by promptly issuing citations at the last known address, making numerous service attempts, and promptly amending the petition upon discovering the correct address. After unsuccessful personal service, the appellants sought substituted service, which the appellees received. The trial court granted summary judgment inappropriately, given that the appellants provided valid explanations for any delays, contrary to the legal standard that permits such judgment only when no valid explanation is offered. The appellees' attempts to evade service do not absolve them, and the trial court's ruling contradicts Texas law and equity principles.

Courts require that diligence in legal processes aligns with what an ordinary person would do in similar circumstances. In this case, the trial court found that the appellants did not exercise sufficient prudence in serving the appellees. The appellants attempted to serve the appellee driver at his residence shortly after filing an amended petition but failed to do so. Subsequently, the appellants' counsel filed for alternative service, indicating ongoing efforts to pursue the case. Despite the appellants’ active attempts, the issue of "unexplained inactivity" arose; without an explanation, courts may assume such inactivity reflects a lack of diligence. However, the appellants presented a consistent pattern of activity that counters claims of inactivity, suggesting that their efforts were not as sluggish as alleged by the appellees and corroborated by the trial court. Courts generally refrain from dismissing cases when litigants are making efforts to achieve proper service, regardless of the pace. The appellants request that the appellate court reverse the trial court's judgment, deny the motion for summary judgment, and reinstate the plaintiffs' claims, while also asking that the appellees cover all costs of the proceedings.

Attempts to serve process were made on multiple dates: 

- On September 18, 2014, at 7:00 PM, the respondent was not home; a card was left on the door.
- On September 20, 2014, at 9:30 AM, the respondent was reported not to be home by an adult female.
- On September 23, 2014, at 8:30 PM, the respondent was not in according to his mother.
- On September 24, 2014, at 5:30 PM, an adult female, not the respondent's mother, also reported he was not home.

Diligent efforts were made for personal service at various times, with no response from the respondent. The affiant, Gregory Harper, concludes that obtaining good service without a court order directing service to anyone over 16 years old or allowing process to be attached at the main entrance is unlikely. This declaration is made under penalty of perjury, with personal details provided, and was executed in Dallas County, Texas, on September 24, 2014.