Mary Ann Guillen v. William A. Frels, as Personal Representative of the Estate of Arnold H. Frels--Appeal from 113th District Court of Harris County

Affirmed and Memorandum Opinion filed December 8, 2005

Affirmedand Memorandum Opinion filed December 8, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-05-00154-CV

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MARY ANN GUILLEN, Appellant

V.

WILLIAM A. FRELS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ARNOLD H. FRELS, Appellee

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 01-48091

M E M O R A N D U M O P I N I O N

In this personal injury case, appellant Mary Ann Guillen appeals from a take-nothing summary judgment, based solely on the ground of limitations, in favor of appellee William A. Frels, as personal representative of the Estate of Arnold H. Frels, William=s father. We affirm.

Factual and Procedural Background

In summary form, the following events culminated in service of process on William Frels (AWilliam@ or AFrels@) on December 22, 2003:[1]

 September 20, 1999 - Guillen and Arnold Frels were involved in the automobile accident giving rise to the present lawsuit;

 November 30, 2000 - Arnold Frels moved to an assisted living facility;

 September 19, 2001 - Guillen filed her original petition, indicating Arnold could be served at 2032 Thonig, Houston, Texas;

 September 27, 2001 - Citation was issued for Arnold at 2032 Thonig, Houston, Texas;

 October 5-15, 2001 - Deputy Constable E.W. Godfrey attempted service on Arnold at 2032 Thonig, and returned the unexecuted citation stating, ABad Address Per Mr. Betzen 4/01 Called Attorney, No Answer at Phone Number Returned to Court No Response from Attorney@;

 January 24, 2002 - Harris County Deputy Constable E.L. Turnipseed executed an affidavit regarding attempted service on Arnold at 1107 Appleford Drive, Seabrook, Texas, and stated AI was advised that Defendant was put in a nursing home because of illness, however his son who is his caretaker resides at the above address and citation could be left with him@;

 January 28, 2002 - Guillen filed a motion for substituted service requesting service on someone over the age of 16 at William=s residence, 1107 Appleford Drive;

 January 30, 2002 - The trial court signed an order granting Guillen=s motion for substituted service at 1107 Appleford Drive;

 February 21, 2002 - Arnold died;

 March 19, 2002 - William qualified as executor of Arnold=s estate;

 April 16, 2002 - Deputy Turnipseed received the citation along with the January 30, 2002 order for substituted service;

 May 22, 2002 - Officer Turnipseed returned the citation unexecuted, showing three attempts at service, and stated AReturn to Court - Defendant Deceased Feb 2002 per son@;

 June 3, 2002 - The trial court signed an order dismissing the case for want of prosecution;

 July 2, 2002 - Guillen filed a motion to reinstate after dismissal without prejudice, attaching the affidavit of attorney Boma O. Allison, who stated, APlaintiff has tried diligently to serve defendant and he has been avoiding service. Plaintiff has new information whereby defendant can be served@;

 July 8, 2002 - The trial court signed an order granting Guillen=s motion to reinstate;

 September 30, 2002 - Guillen filed a motion to retain the case on the docket and included Allison=s statement under oath, AWe have tried diligently to serve defendant and the constable has indicated that the defendant might be in a nursing home or deceased and we would pray for additional time to amend petition to include Defendant=s estate@;

 October 2, 2002 - The trial court signed an order granting Guillen=s motion to retain the case on the docket;

 February 21, 2003 - Guillen filed another motion to retain the case on the docket and stated, AMovant has been trying diligently to serve the Defendant and now has conclusive information that Defendant had been dead for some time. Movant would like additional time to amend her pleadings to serve the heirs to Defendant=s Estate and prosecute this suit@;

 February 24, 2003 - The trial court signed an order retaining the case on the docket;

 October 31, 2003 - Guillen filed an amended petition naming William Frels as personal representative of the estate of Arnold Frels.

 November 20, 2003 - Process server Roderick M. McGowan executed an affidavit, in which he indicated three unsuccessful attempts at service at 1107 Appleford Drive;

 December 3, 2003 - Guillen filed a motion for substituted service;

 December 4, 2003 - The trial court signed an order granting substituted service by taping the petition to the door;

 December 22, 2003 - William Frels was served.

William Frels answered, asserting the defense of limitations, among other matters. He then filed a hybrid traditional and no-evidence motion for summary judgment. Frels alleged the following grounds: (1) Guillen=s lawsuit is time barred; (2) Guillen failed to accomplish service with due diligence, and thus did not toll the running of limitations; and (3) alternatively, for Ano evidence@ summary judgment purposes, Guillen could not show the exercise of due diligence with regard to service. In support, he attached his affidavit, recounting Arnold=s relocation to a nursing home and subsequent death, William=s receipt of business cards from process servers, William=s calls to the process servers, and service by notice taped to his door during the last week of December, 2003. He also attached a copy of the letters testamentary, showing his qualification as independent executor of Arnold=s estate on March 19, 2002.

Guillen responded, arguing she exercised due diligence in serving Arnold before his death. She claimed the following categories of summary judgment proof raised a genuine issue of material fact on the issue of due diligence: (1) the pleadings and other documents in the trial court=s file and (2) attached documents consisting solely of Allison=s, Turnipseed=s, and McGowan=s affidavits, a January 24, 2002 facsimile coversheet from Turnipseed, and the October 2001 unexecuted return for service at 2032 Thong.[2]

In his reply to the response Frels argued Guillen=s explanations for the delay failed as a matter of law. He listed multipleAsignificant time periods@ as exemplifying Guillen=s lack of diligence: (1) the ten month period between Arnold=s move to assisted living and Guillen=s filing of the lawsuit, during which Guillen could have discovered Arnold=s new address; (2) the three month period between the October 2001 return of unexecuted service and Guillen=s January 2002 motion for substituted service, (3) the two and a half month period from the January 30, 2002 order for substituted service and the constable=s April 16, 2002 receipt of the order, (4) the seventeen months between the constable=s May 22, 2002 return of unexecuted service, noting Arnold=s death and Guillen=s October 2003 filing of her amended petition naming the administrator of Arnold=s estate, and (5) the eight monthsCcontained within the latter periodCbetween the trial court=s February 24, 2003 order retaining the case on the docket and Guillen=s filing of her amended petition.

Frels also disputed the representation in Allison=s July 2, 2002 affidavit that the defendant had been avoiding service. Frels referred to the May 22, 2002 return containing the statement ADefendant deceased Feb 2002 per son.@ Frels also referred to his affidavit, in which he stated he twice returned calls to process servers who had left business cards on his door.[3]

The trial court granted Frels=s summary judgment motion without stating the grounds and ordered Guillen take nothing.

Discussion

I. Issues Presented and Standard of Review

Guillen raises the following two issues: (1) whether Arnold=s unavailability and that of Ahis caretaker, and elusive executor for service of process will be imputed to [Guillen] as lack of diligence,@ and (2) whether Frels=s summary judgment proof established Guillen=s lack of diligence as a matter of law. Both issues are directed at the trial court=s grant of Frels=s motion for summary judgment.

The movant for summary judgment has the burden to show there is no genuine issue of material fact and he is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). When deciding whether there is a disputed material fact issue precluding summary judgment, the appellate court must take as true all evidence favorable to the non movant. Id. at 548B49. The reviewing court must indulge every reasonable inference in favor of the non movant and resolve any doubts in its favor. Id. at 549.

A defendant moving for a traditional summary judgment assumes the burden of showing as a matter of law the plaintiff has no cause of action against it. See Levesque v. Wilkens, 57 S.W.3d 499, 503 (Tex. App.CHouston [14th Dist.] 2001, no pet.). Traditional summary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiff=s theories of recovery, or pleads and conclusively establishes each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).

Additionally, after sufficient time for discovery has passed, a party may file a Ano evidence@ motion for summary judgment if there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i). As with the traditional summary judgment, in reviewing a Ano evidence@ summary judgment, we review the evidence in the light most favorable to the nonmovant and disregard all evidence and inferences to the contrary. Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 284 (Tex. App.CHouston [14th Dist.] 2000, no pet.). We sustain a no evidence summary judgment if (1) there is a complete absence of proof of a vital fact; (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact. Id.

Because the propriety of summary judgment is a question of law, we review the trial court=s decision de novo. Brown v. Blum, 9 S.W.3d 840, 844 (Tex. App.CHouston [14th Dist.] 1999, pet. dism=d w.o.j.); see Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). When a party moves for summary judgment on both traditional and no evidence grounds and the trial court does not specify which it granted, we can uphold the summary judgment on either ground. See Taylor v. Carley, 158 S.W.3d 1, 8 (Tex. App.CHouston [14th Dist.] 2004, pet. denied).[4]

II. Propriety of Summary Judgment on Limitations

Guillen=s cause of action accrued September 20, 1999. See Brown v. Shores, 77 S.W.3d 884, 887 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (setting date of accident as date cause of action accrued). Limitations expired September 20, 2001. See Tex. Civ. Prac. & Rem. Code Ann. ' 16.003(a) (Vernon Supp. 2005) (providing person must bring suit for personal injury no later than two years after day cause of action accrues). Guillen filed her original petition September 19, 2001, one day short of the two-year period. It is undisputed that Guillen did not effect service until December 22, 2003, over four years after the accident. As this court explained in Carter v. MacFadyen:

Filing suit interrupts limitations only if a plaintiff exercises diligence in serving the defendant. When a defendant moves for summary judgment and shows that service occurred after the limitations deadline, Athe burden shifts to the plaintiff . . . to explain the delay.@ The plaintiff=s evidence must explain every period of delay. Once the plaintiff presents an explanation, the burden shifts back to the defendant to show why those explanations are insufficient as a matter of law.

93 S.W.3d 307, 313 (Tex. App.CHouston [14th Dist.] 2002, pet. denied) (citations omitted).

Due diligence requires the plaintiff to exercise the diligence to procure service that an ordinarily prudent person would have used under the same or similar circumstances. Belleza Gonzalez v. Villa, 57 S.W.3d 8, 12 (Tex. App.CHouston [14th Dist.] 2001, no pet.). Generally, the question of diligence is a question of fact. Id. Nevertheless, lack of diligence may be shown as a matter of law based on unexplained lapses of time between the filing of the petition and service on the defendant. Brown, 77 S.W.3d at 887.

The summary judgment proof in the present case fails to raise a genuine issue of material fact regarding Guillen=s diligence during the eight month period from February 24, 2003, when the trial court granted Guillen=s motion to retain the case on the docket and October 31, 2003, when Guillen filed her amended motion naming William Frels as personal representative of Arnold=s estate. In her motion to retain the case on the docket, Guillen represented she then had Aconclusive information@ Arnold had been dead for some time; she also requested additional time to amend her pleadings Ato serve the heirs to [Arnold=s] estate and to prosecute this suit.@ Yet, she waited eight months to file an amended pleading. There is nothing in the summary judgment proof explaining this period of delay.[5] This unexplained eight-month delay alone conclusively negates diligence as a matter of law.[6] See id. (holding unexplained delay of slightly more than five months not due diligence as a matter of law); Belleza-Gonzales, 57 S.W.3d at 11B12 (citing cases in which delays of five to six months established lack of due diligence as a matter of law); Pitula v. Valera, No. 12-01-00302-CV, 2002 WL 1065971, at *2 (Tex. App.CTyler May 22, 2002, no pet.) (not designated for publication) (holding failure to serve administrator of defendant=s estate for approximately six months after being notified of defendant=s death showed lack of due diligence as matter of law).

We overrule Guillen=s two issues.

Conclusion

Having overruled Guillen=s two issues, we affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed December 8, 2005.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.

[1] Both parties included in the appendices to their briefs, documents that were not part of the appellate record. Attachment of documents as exhibits or appendices to briefs is not formal inclusion in the record on appeal, and we cannot consider such documents. Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.CHouston [14th Dist.] 2002, no pet.). In response to this court=s order, however, the clerk of the district court has now provided a supplement to the clerks record containing the documents, and we therefore consider those documents.

[2] Guillen also argued Frels=s no evidence motion was premature.

[3] In his affidavit, Frels stated process servers had left business cards on his door in September 2001 and May 2002. The attempted service in September 2001, however, was at 2032 Thong. By January 24, 2002, Turnipseed was able to state William could be served at 1107 Appelford.

[4] On appeal, Guillen does not renew her argument that Frels=s no evidence motion was premature.

[5] Unlike Attorney Allison=s July 2, 2002 affidavit in which Allison made a conclusory allegation the defendant had Abeen avoiding service,@ Allison=s December 3, 2003 motion in support of service by taping the petition to the door, makes no similar allegation.

[6] By not discussing other periods of delay in the more than four years between the accident and service on William, we do not mean to imply that Guillen=s explanations were sufficient to raise the issue of diligence during those periods.