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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; October 4, 2016; Texas; State Appellate Court
Original Court Document: View Document
On October 4, 2016, the Court of Appeals for the First District of Texas affirmed the trial court's summary judgment in favor of Jared Efurd in a personal injury lawsuit filed by Juan Soto Perez, Jose Ulloa-Siallos, and Keyri Menjivar. The plaintiffs initially filed their lawsuit within the two-year statute of limitations following a 2012 motor vehicle accident but failed to serve Efurd until over three months after the limitations period expired. Efurd asserted the affirmative defense of limitations and moved for summary judgment, which the trial court granted, concluding that the plaintiffs had not demonstrated diligence in serving him. The case notes that although the plaintiffs named another defendant, James Efurd, there was no evidence of service or appearance by him, meaning he was not part of the appeal. The court emphasized that the plaintiffs did not provide any evidence of their diligence in serving Efurd, relying instead on an affidavit from their process server attached to their appellate brief, which Efurd contested as unsupportive of the record. The court upheld the trial court’s decision, affirming that Perez did not meet the requisite standard of diligence in serving Efurd. The standard of review for a trial court’s summary judgment is de novo, with the nature of the motion assessed by its substance rather than its title. In this case, Efurd’s motion is classified as a traditional summary judgment as it raises an affirmative defense and claims entitlement to judgment as a matter of law. Review of traditional summary judgment requires that all evidence favorable to the nonmovant be accepted as true, with all reasonable inferences drawn in their favor. Regarding summary judgment on a limitations defense, the defendant must initially show that service occurred after the limitations period, after which the burden shifts to the plaintiff to explain any delay. If the defendant proves the statute of limitations applies, the plaintiff must provide evidence of diligence in service efforts, explaining any lapses. A lack of due diligence is indicated by unexplained delays, with the law stating that unexplained delays of a few months negate diligence as a matter of law. In the case at hand, Perez failed to provide evidence supporting his claims of diligence in serving Efurd, as his memorandum was not accompanied by a verifying affidavit. Pleadings alone do not constitute evidence. Consequently, Perez did not meet his burden to raise a material fact issue regarding his diligence. The affidavit submitted in his appellate brief, which detailed service efforts after the limitations period, was not considered since it was not part of the original response. The trial court’s judgment is affirmed.