Paula Morris v. Jose Terrazas and Theresa Myers
11-16-00095-CV
| Tex. App. | Jun 8, 2017Background
- Morris owned a vehicle damaged in a multi-vehicle rear-end collision on October 21, 2011; her 17-year-old son was the driver and allegedly injured.
- Morris first sued in justice court on November 4, 2013 (14 days after the 2-year limitations period); that suit was dismissed for lack of jurisdiction.
- She filed in county court on April 11, 2014. Citation for Terrazas was requested November 6, 2014 and served November 17, 2014.
- Morris attempted service on Myers by certified mail twice using incorrect addresses and did not obtain personal service until June 2, 2015.
- Mayers (a different party) obtained summary judgment earlier; Terrazas and Myers moved for summary judgment based on limitations and lack of diligence in service.
- The trial court granted summary judgment for Terrazas and Myers and entered a take-nothing judgment; Morris appealed pro se.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Clerk delay / issuance of citation | Morris: clerk failed to timely prepare/issue citations and her indigence relieved her of responsibility | Defendants: plaintiff is responsible to request citation and ensure service; delays were due to plaintiff (incorrect addresses, late requests) | Held for defendants — plaintiff bears responsibility; clerk actions do not excuse plaintiff's lack of diligence |
| 2. Default judgment for late answer | Morris: default should be entered because Terrazas did not answer timely | Terrazas: answer was on file before Morris sought default; no no-answer default possible | Held for defendants — default inappropriate because answer was filed before default sought |
| 3. Trial court consideration of reasons for delayed service on Myers | Morris: court failed to give due consideration to clerk’s inaction and her explanations for delay | Myers: record shows plaintiff provided incorrect addresses and failed to act diligently to obtain service | Held for defendants — Morris offered no adequate explanation or evidence of diligence; court did not err |
| 4. Summary judgment on liability despite limitations defense | Morris: disputed material facts on liability (cites separate case involving her son) | Defendants: limitations bars the suit; summary judgment proper when plaintiff did not timely file or show tolling/diligence | Held for defendants — suit barred by 2-year statute of limitations; plaintiff did not plead tolling or raise fact issue on diligence |
Key Cases Cited
- Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex. 2010) (standard of review for summary judgment)
- Gant v. DeLeon, 786 S.W.2d 259 (Tex. 1990) (plaintiff must exercise diligence in serving defendant following filing)
- Primate Constr., Inc. v. Silver, 884 S.W.2d 151 (Tex. 1994) (party requesting citation is responsible to ensure service is accomplished)
- Proulx v. Wells, 235 S.W.3d 213 (Tex. 2007) (burden-shifting on diligence in service; diligence judged by ordinary-prudent-person standard)
- Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826 (Tex. 1990) (once defendant shows service after limitations, plaintiff must explain delay)