*1 tempo- court instructions to with enter a PROULX,
rary Appellant, injunction hearing and to conduct a Denis on Lavigne’s request permanent for a in- junction in light of our resolution of the
underlying motions for summary judg- WELLS, Appellee. A. Michael ment.
No. 2-05-044-CV. attorney’s Lavigne’s
3. fees Texas, Appeals Court of claim Lavigne attorney’s asserted a for Fort Worth. fees petition in his and motion for sum- mary judgment connection with this re- Feb. quest injunctive for relief. Because the trial granted court Holder’s motion for Lavigne’s and denied
motion, it not consider Lavigne’s re-
quest attorney’s for fees. therefore We Lаvigne’s attorney’s remand the issue fees to the trial court for further proceed- ings.
Conclusion issues, Lavigne’s Having sustained judgment we reverse the the trial court Lavigne’s favor. render Tex.R.App. 43.2(c). P. See We remand the the trial court with instructions injunction temporary enjoining enter a foreclosing Holder and Broome subject on the of the property basis by Lavigne, to granted easement conduct request a hearing Lavigne’s per- for a injunction, and consider La- manent vigne’s requеst attorney’s for See fees.
Tex.R.App. 43.3(a). 43.2(d), stay P.
imposed by our June 2005 order will further dissolve without action of this tempo- trial court court when the enters a rary injunction opin- consistent with this ion. deny Holder Broome’s “Mo- We Bond, tion Supersedeas Order Payment Arrearages or Equita- Other Relief, Including ble Fail- Foreclosure for Payments.” ure to Make *2 Associates, T.
McLain & Ronald McLain, Dallas, appellant. Madole,
David, L. Barry & Goodman Hardin, Dallas, appellee. LIVINGSTON,
PANELF: WALKER, GARDNER, and JJ.
OPINION LIVINGSTON, TERRIE Justice.
I. Introduction judg- The sole issue this Denis appellant ment case is whether serving appellee diligent Proulx was Michael A. Because we determine Wells. appellee proved as a matter of law diligent expiration service before the of the statute limitations, we affirm. Background II. Facts 2, 2003, May original petition In his filed appellant alleged May that on he driving Arlington, his car in Texas unprotected when made an left hand turn and collided with car. injuries to Appellant claimed he suffered back, head, neck, his right leg, his body Although appellant filed generally. the statute of limitations ex- suit before pired May he did not serve Appellеe contends appellee before that date. See Tex. granted the trial court motion properly his Civ. 16.008(a)(Vernon § for summary because there were Prao. Rem.Code Ann. & Supp.2005). lengthy periods time when *3 not attempt to him. 22, 2003, August
On the trial is- court sued of a notice intent to dismiss the case prosecution, stating
for want of the A. Standard of Review unless, case would be dismissed on or be- case, summary In a judgment the issue (1) fore September appellant on appeal is whether the movant met the served either filed by establishing burdеn appellant an judg- answer or took a default genuine that no of material fact ex issue (2) appellee, ment against or ists and that movant is entitled to the filed motion Appellant a verified to retain. a judgment as matter of law. Tex.R. Crv. a appellee, neither served nor filed verified 166a(c); Grant, P. Sw. Power Co. v. Elec. retain, motion to so the trial court dis- 211, (Tex.2002); 73 City S.W.3d 215 of case for prosecution missed the want of Auth., Houston v. Clear Basin 589 Creek 7, October 2003. On October (Tex.1979). S.W.2d 678 The burden a appellant filed motion to the reinstate movant, of the proof is on and all doubts to claiming the failure or appear a genuine about the existence of issue intentional, a file motion was not but was against material fact are the mov- resolved the calendaring by appel- result of a error Co., ant. Elec. 73 Sw. Power S.W.3d attorney. lant’s court granted The trial 215. the motion on 18. November appellee by served substituted summary judgment, reviewing When appellee’s January service on brother on we take as true evidence all favorable Appellee original 2004. an filed answer nonmovant, indulge every the rea and we July summary 2004 and a motion for any sonable inference and resolve doubts limitations
judgment on statute
grounds
Operat
favor. Valence
nonmovant’s
on November
2004. The trial court
Dorsett,
ing
v.
661
Co.
164 S.W.3d
granted
summary
motion
judgment
for
(Tex.2005).
mov-
Evidence that favors the
January
unless
position
ant’s
will not be considered
it is
Am. Reserve
uncontroverted. Great
Propriety
Summary
III.
Supply
Ins.
Plumbing
v. San Antonio
Co.
Judgment
Appellee
(Tex.1965).
47
issue, appellant
that a
his sole
claims
summary
A
entitled
defendant
is
genuine
fact
issue material
exists as
affirmative
if the
judgment on an
defense
whether he
due
exercised
all
ele
conclusively proves
defendant
serving
Appellant contends
of the affirmative defense. Rhone-
ments
the evidence and reasonable inferences
Poulenc,
Steel,
Inc. v.
997
223
S.W.2d
ordinarily
that he
an
demonstrate
acted as
(Tex.1999).
this,
To
the de
accomplish
prudent person would have under similar
summary
present
fendant-movant must
Additionally, appellant
circumstances.
ar-
that establishes each
gues
present any judgment
evidence
as a
judgment
element of
affirmative defense
summary
evidence that would
law,
Inc. v.
sufficiently
Ryland Group,
a matter of
that matter of law.
prove, as
(Tex.1996).
Hood,
diligent
attempting
Comm’n,
420, 422
ployment
When
defendant moves
denied).
(Tex.App.-Fort
occurred
Worth
writ
and shows
pеriod expired,
after the limitations
Generally,
of due
exercise
plaintiff
burden shifts to the
to offer an
question
of fact that is deter
is
explanation
delay.
for the
See James
two-pronged inquiry:
mined
(Tex.
Corp.,
Gruma
plaintiff
ordinary
whether the
acted as an
denied);
App.-Fort
pet.
Tran
Worth
prudent person would have acted under
(Tex.
Duemling,
ter v.
circumstances;
the same
whether
App.-El Paso
pet.); Carter
diligently
until the
up
acted
MacFadyen,
(Tex.App.-
Tate, 119
time the defеndant was served.
*4
denied).
2002, pet.
Houston [14th Dist.]
dili
duty
S.W.3d at 380. The
use due
only
plaintiff
This means
the
must
gence continues from the date
is filed
suit
point to evidence that raises a fact issue on
Id.;
until the date the defendant is served.
Tranter,
diligence.
If
the cause of action accrues. See Tex. Civ. plaintiff diligent Whether 16.003(a). § PRAC. & Rem.Code Ann. To serving normally question is defendant “bring plaintiff only suit” the must not file fact, if no but excuse is offered for petition the two-year period, within the but delay lapse coupled or if the of time with diligence must also use in serving the de plaintiff’s conclusively negate the acts dili Tranter, fendant process. with 129 gence, diligence lack of will be found as a 259; Beal, S.W.3d at Tate v. 119 S.W.3d Vandigriff, 71 at matter of law. S.W.3d (Tex.App.-Fort pet. 380 Worth 925; Specialties, Instrument denied). If plaintiff the files suit within plaintiff at 422. A if fact issue exists the two-year period, the but does not serve the gives a explanation valid or reasonable two-year defendant until after period the James, delay. 129 the S.W.3d at 759. expired, has the date service relates Here, petition back to the the if it nine date was filed took almost plaintiff diligence in ef filed to has exercised months from the time the suit was Tranter, fecting appellee service. See 129 via substituted service. S.W.3d Tate, 259; 380; length at 119 at Tarrant of time it took S.W.3d County Vandigriff, prove v. 71 924 obtain service is sufficient to lack of S.W.3d denied); if (Tex.App.Fort pet. diligence Worth as a matter of law not Specialties Instrument v. Tex. Em evidence does Res., Inc., (Tex.App.-San appeals 1. The Antonio has held 754 San court Carrasco, length pet.); Keetonv. that the is not the critical Antonio no factor, diligence (Tex.App.-San but whether was used to Antonio denied). pet. effectuate service. Zacharie v. U.S. Natural explanation Curry located. located three additional show a reasonable or valid delay. consistently possible appellee. have addresses for Texas courts unexplained delays held that of five and six Duffe’s affidavit further shows that requesting months issuance August Duffe received a facsimile of citation constitute a lack of due possible three new Curry listed Zacharie, as a matter of law. August addresses for On Mainka, 754; at see also Hansler and Duffe (Tex.App.Corpus Christi Arlington. On Ruger Drive writ) (holding as matter of law that ad- August current resident at plaintiff lacked after a five and not live dress told Duffe that did delay). Boyattia four-fifths month 8, 16, Duffe August there. On Hinojosa, appeаls the Dallas court of held Drive at 825 Muirfield attempted service due dili- exercise by told again and was Mansfield gence period after a three month of inac- did not live current resident that plaintiff. tion there. denied) (noting (Tex.App.-Dallas pet. 13,16, September 27 and August On *5 mistakenly that clerk’s office had misdi- appel- to serve attempted 6 and Duffe nothing to rected service and Garland, but he lee at Road 4268 Chaha error). Thus, rectify the issue we must when he did not receive an answer аppellant’s summary resolve is whether Sep- on knocked on the door. However judgment evidence raises a fact issue as to answered the a Mrs. Carroll tember dili- whether he acted with reasonable stated, is not [a]t and “Michael Wells door Webster, at 290. gence. See 24, Duffe September this address.” On he was un- attorney that appellant’s told Application to Facts C. the three appellee at new able to serve four affidavits Appellant presented invеstigator. as by the provided addresses from summary judgment evidence: affidavit, January dated The third process attempted servers who then deliv- that citation was showed investiga- from an in-house appellant, one server, Rosser, Cynthia ered to representing appellant, tor for the law firm attempts con- on and service October private investigator and from a hired one attempt- until December 5. Rosser tinued by the firm. The first affidavit shows law three times at the appelleе ed to serve Duffe, May pro- that on Brian four times at address and Riverside Drive server, citation. He at- cess received the Between De- Road address. Chaha at 701 Riverside tempted appellee 10, 2003, she 5 and December cember 24; on Arlington May and Drive Wells, twenty calls to Mark over made 27; July and and June brother, the Mansfield ad- at appellee’s July Duffe informed 16 and 22. On that she confirmed averred dress. Rosser attorney that he did not believe appellant’s Wells, brother, Mark rеsid- appellee’s that appellee lived at that address. Mansfield, Drive ed at 825 Muirfield on his listed this address July that on The second affidavit shows license, that she believes Texas driver’s appellant’s attorney utilized Gene Cur- other, in contact with each for the law the two were ry, investigator the in-house efficient in her belief the most to obtain addi- representing appellant, firm be deliver- might way be to effect service would tional addresses where requested in his that he Muirfield claims brief ing substitute service May 2 when he for the citation on paid Drive. summary judgment In his first filed suit. final affidavit shows that stated, was received response, he “Citation Cantrell, private used Arthur B. also the District Clerk and forwarded from In his investigator, to locate ” in his affi- ... Duffe.... Duffe averred affidavit, January stated Cantrell May that he received the citation davit public had utilities as late as no evidence 2003. There is ad- December 2003 at the Chaha Road ap- record as to when that David was current- dress аnd Wells citation. requested and received the pellant license ly living Appellee’s there. driver’s residence, Thus, not know whether this Drive his we do listed 825 Muirfield as “registered” was to Mark inaction or the and this home resulted from averred that and Carla Wells. Cantrell it took for the court to issue time the most current address for of the responsibility citation.2 It is the Wells, A. Lis care of Julie 2126 Fleur de that it is party requesting service to see Court, Arlington, Texas. Cantrell stated accomplished. P. properly See Tex.R. Civ. “[appellee] appears moving be Silver, Constr., 99a; Primate Inc. v. doing relative to relative and his best Carter, (Tex.1994); from the courts credi- avoid service at 313. Lis tors.” He concluded the Fleur de Duffe averred that he last the best address was address September but he did not service on but that at either the substituted service inability to notify appellant of his effectu- Fleur de or the Muirfield ad- Lis address *6 September until 24. There is ate service proper dress would be the best sоlution for explaining appel- in the record no evidence service. twenty- in the lant’s efforts as to service appellant The record shows that did not days September and Octo- four between file a motion for substituted service until cita- day Rosser received the ber January 2004. appellee He served during period this that the tion. It was January eight over months after court, dis- appellant, trial after notice to filing suit. prosecution. case for want of missed the that Appellee contends he is enti the trial court reinstated the Although summary judgment appel tled to because 18, 2004, appellant did case on November explain periods delay: lant did not al- service until request not substituted 2,May appellant from when filed his most two months later.3 original May Duffe petition, when affidavit, (nineteen inves- private Cantrell’s days);
received the citation
initial
tigator averred that “the
search
September
when Duffe last
service,
proper
[apрellee]
service location for
when
attempted
October
attempts
failed
initiated after serveral
attempt
[sic]
Rosser made her first
to serve
at ... 4268 Chaha
(thirty-three days). Appellant
by
process
server
significant that once
Boyattia,
3. We also believe it to be
hiring private investigator egre “more gious”). issue, Having overruled sole judgment. we affirm the trial court’s that appellant
The record shows than a month filed his suit less before WALKER, dissenting opinion. J. filed expired; limitations he made at tempt until after limita WALKER, Justice, dissenting. SUE expired; tions had that his suit was dis *7 I respectfully agree I dissent. with the and he prosecution missed once for want with majority’s statement of the facts and to it until did file a motion reinstate controlling law. I its recitation of the later; despite knowledge three weeks agree,'however, viewing cannot the ap- to attempts numerous faded in summary judgment fight evidence the pellee, appellant private not hire a nonmovant, Aрpel- most favorable to the investigator appellee’s to determine where Proulx, genu- it raise a lant Denis fails to- abouts, necessary the including facts regarding fact wheth- ine issue of material service, until almost five effect substituted ordinary prudent as an Appellant er acted suit; that appel months after he filed and acted under the same person would have appellee for lant was not able to serve act- Appellant circumstances and whеther Additionally, appel almost nine months. Appellee until time explain why diligently up lant failed to it took almost ed the any appellant's attempted 4. Because Rosser to serve doubts about evidence favor, during we will hired at the Chaha Road address November assume that attempts Cantrell after Duffe’s failed Cantrell could have been hired much later, See early appellee at the Chaha Road address. at the end of November or in Operating at 661. we Vаlence 164 S.W.3d December 2003. Because must resolve until the diligently up acted A. was served. Conse- Michael Wells (citing Id. was served. sole time the defendant Appellant’s I would sustain quently, (Tex. Smith, 212, 215 Hodge v. the trial court’s sum- issue reverse 1993, writ de App.-Houston Dist.] [1st mary judgment. nied)). The law is well settled that when Here, summary judgment Appellant’s summary judgment on the
movant seeks pro- affidavits from evidence included upon not served ground that the suit was servers, investigator, in-house cess one applicable peri him within the limitations in the investigator. Viewed private one od and nonmovant raises the issue these Appellant, light most favorable summary then to diligence, due obtain concerning a fact issue affidavits raise conclusively judgment the movant must Appellant acted with reasonable whether used to establish that Appellee.1 Power effectuate service. S.W. Elec. Co. The affidavits filed Grant, (Tex.2002); 73 S.W.3d during the nine Appellant establish Rosenbaum, Corp. Zale when suit was filed and months between (Tex.1975); Beаl, Tate v. finally successfully ob- when 2003, pet. (Tex.App.-Fort Worth Appellee’s tained substituted service denied). conclusively A matter is estab brother, Appellant utilized two if lished reasonable minds cannot differ as Appellee who service on servers to the conclusion to be drawn from the at five different ad- twenty-three times See, summary judgment proof. e.g., Tri utilized two different investi- dresses and Corp. ton v. Marine Oil & Gas Contrac gators Appellee. in an effort to locate Inc., 443, 446 Supрly, tors & in his affidavit private investigator stated (Tex.1982). words, if sum other moving Appellee “appears be mary judgment concerning evidence due doing to relative and his best relative diligence including con the nonmovant’s — courts and credi- avoid service from the troverting summary judgment evidence— tors.” light viewed most favorable to the
nonmovant, genuine raises a issue of mate Viewing this evidence and its reasonable concerning rial fact dili the nonmovant’s light in the most favorable to infеrences service, gence obtaining then resolving all doubts about Appellant and Tate, improper. is genuine of a issue of material the existence “[vjiewing at 381 all of the volume of against Appellee, fact the sheer evidence and its reasonable inferences repeated and consistent service Appellant’s non- light most favorable to Tate [the his use of two attempts, combined with movant], we hold that a fact issue exists supported by private investigators *8 concerning whether Tate exercised due dil Appel- investigator’s sworn conclusion Beal”). service, in Gen igence intentionally avoiding service at lee was erally diligence effectuating in plaintiffs regarding Appel- a fact issue least raise question serving process is a of fact that is deter in diligence service lant’s due See, two-pronged inquiry: e.g., appel- mined id. Appellee. lant, ordinary as an three months whether the acted who served limita- and аfter the have acted under after suit was filed prudent person would even circumstances, diligence used due period, and tions the same whether as to judgment evidence raises a fact issue agree majority that "the issue we 1. I with the diligence.” summary whether he acted with reasonable whether must resolve is eleven-day delay obtaining in in service on defendant though there was an months v. diligence); a near three- was lack of due Webster attempting first service and Thomas, 287, (Tex.Aрp. delay failed at month between the first pet.) (holding no of actual -Houston tempt [14th Dist.] at service and the date obtaining cita service); delay four-month between Duemling, Tranter v. having it served on the defendant (Tex.App.-El 261-63 Paso no tion and plain when the pet.) (holding appellant, who served was a lack of due during this time “were not months after suit was filed tiffs actions three the issuance of cita period, designed procure and the limitations used due after Ross, Becerra, serviсe”); v. 797 tion and Butler diligence); Martinez (Tex.App.-Houston [1st (Tex.App.-Corpus Christi S.W.2d 835-36 writ) (five writ) one-half that defendant’s ef no (noting Dist.] no heavily inactivity failure of ser identity “weigh forts to conceal his months of between wrong in and service at new finding diligence”); favor of due see also vice address Houck, 14-03-00583-CV, diligence); address was a lack of due Han Forrest v. No. Mainka, (Tex.App. (Tex.App.-Hous *7 sler v. 2004 WL writ) (no request no Sept. pet.) -Corpus ton Christi [14th Dist.] for five months after (mem.op.) (recognizing process defеndant’s use of for service of diligence); a lack of due address other than his residence for driv suit filed was Labs., Inc., major delay Bentley in Allen v. er’s license was cause explana (Tex.Civ.App.-San Antonio serving defendant and constituted n.r.e.) (unexplained in six-month delay requiring tion for service reversal writ ref'd defendant). delay obtaining ser filing between suit diligence); vice a lack of due Williams was majority points following The Trust Bank & Houston-Citizens in holding facts failed to (Tex.Civ.App.- 435-36 diligence: the raise a fact issue on nine n.r.e.) 1975, writ ref’d Dist.] Houston [14th teen-day delay filing the date of between delay be eight-month almost (unexplained process and the date that the server suit citation and issu expiration tween first citation, nearly Appellant’s received five- a lack of due ance of second citation was delay private investiga in hiring month majority cites no cases diligence). The (prior to that time Appellee tor to locate fact, today, until that hold otherwise. Appellant explained that he had been us twenty-three holding that no case existed twenty-four ing investigator), an in-house at five dif attempts to serve a defendant day delay delivering citation to sec months—all addresses over nine ferent server, the total nine- ond actively was made while the defendant month when suit was filed between a lack of dili dodging service—constitutes Appellee and when substituted service on of law. gence as a matter finally purported was obtained. short can differ as minds reasonable Because gaps Appellant’s nine-months’ worth due dili- exercised to whether efforts, repeated and continuous service upon Appel- gence effectuating however, conclusively establish a do not lee, Appellant’s first issue I sustain would service, effectuating lack of trial court’s and reverse the summary judg especially light of the Appellee. actively Appellee -that ment evidence *9 Compare Gant v. De dodging service. (Tex.1990)
Leon, 259, 260 unexplained delay plaintiffs’ thirty-eight periods totaling three