Juan Soto Perez, Jose Ulloa-Sialos, and Keyri Menjivar Individually and as Next Friend of Kendric Menjivar v. Jared Efurd
01-15-00963-CV
| Tex. App. | Dec 28, 2015Background
- Car accident in Houston on Aug. 30, 2012; plaintiffs (Louisiana residents) sued for personal injuries on Apr. 9, 2014.
- Citations issued Apr. 14, 2014 (initial address), and reissued Aug. 1, 2014 after plaintiffs amended petition with a different address.
- Process server attempted personal service at 921 Glory Drive, Waxahachie (Ellis County) on multiple dates in Sept. 2014; after failed attempts plaintiffs obtained and the trial court granted alternative/substituted service in Nov. 2014.
- Defendants filed answer Dec. 30, 2014 asserting statute-of-limitations defense, claiming plaintiffs failed to use due diligence to serve before limitations expired.
- Defendants moved for summary judgment on statute-of-limitations grounds (Sept. 17, 2015); trial court granted the motion on Oct. 16, 2015. Plaintiffs appeal, arguing they exercised due diligence and the trial court erred in granting summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs used due diligence to effectuate service so service after limitations relates back to filing date | Plaintiffs (Perez) assert they acted with ordinary diligence: timely requested issuance of citation, attempted multiple personal services at last-known address, promptly amended petition and reissued citation when a new address was discovered, and timely sought alternative service when personal service failed | Defendants (Efurd) argue plaintiffs failed to use necessary diligence in securing service before the limitations period expired, so claims are time-barred | Trial court granted defendants' summary judgment: found plaintiffs were not sufficiently diligent and claims barred by statute of limitations |
Key Cases Cited
- Proulx v. Wells, 235 S.W.3d 213 (Tex. 2007) (due-diligence requirement for service after limitations; service may relate back if plaintiff acted diligently)
- Gant v. DeLeon, 786 S.W.2d 259 (Tex. 1990) (defendant must conclusively prove affirmative defense on summary judgment)
- Zale Corp. v. Rosenbaum, 520 S.W.2d 889 (Tex. 1975) (service after limitations may relate back if plaintiff exercised due diligence)
- Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492 (Tex. 1991) (standards for granting traditional summary judgment)
- Eichel v. Ulla, 831 S.W.2d 42 (Tex. App.—El Paso 1992) (whether due diligence is a fact question; summary judgment inappropriate if plaintiff offers valid explanation for delay)