PAIGE B. BAYOUD, FROM A DISTRICT COURT APPELLANT, v. DONNA ROSS EWING, APPELLEE

 
COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-01413-CV
 
PAIGE B. BAYOUD,                         FROM A DISTRICT COURT
 
                APPELLANT,
 
v.
 
DONNA ROSS EWING,
 
                APPELLEE.                                  OF DALLAS COUNTY, TEXAS
 
 
BEFORE CHIEF JUSTICE ENOCH AND JUSTICES WILLIAMS FN:1 AND
 
STEPHENS FN:2
OPINION BY JUSTICE STEPHENS
JUNE 15, 1989
        This case results from a summary judgment issued by a Dallas County District Court dismissing Bayoud's claim for damages against Ewing, sustained in an automobile accident. Summary judgment was granted in favor of Ewing for Bayoud's lack of diligence in obtaining service on Ewing. In one point of error, Bayoud contends that the summary judgment evidence raises a material fact issue regarding diligence in service of process. We agree with Bayoud, and accordingly, we reverse and remand the case for a determination of diligence in procuring service.
        On August 1, 1986, Bayoud filed suit against Ewing for damages sustained in an automobile collision on August 12, 1984. Service of citation was not perfected until February 10, 1988. Ewing answered, asserting the statute of limitations and failure to exercise diligence in obtaining service of citation. On May 16, 1988, Ewing filed her motion for summary judgment without supporting affidavits, alleging that as a matter of law, the time delay in perfecting service constituted lack of diligence. Bayoud filed his response to the motion for summary judgment on June 28, 1988, which was supported by his personal affidavit, an affidavit of his attorney, and certain exhibits. Ewing filed no controverting affidavit.
        From the affidavits in opposition to Ewing's motion for summary judgment, we learn that citation was initially issued at the time suit was filed, but service was not perfected because Ewing had moved, and an attempt to obtain a forwarding address from the United States Postal Service was unsuccessful. Later, in September of 1986, a driver's license check was made through the Texas Department of Public Safety, to no avail. Exhibit C to the attorney's affidavit details the efforts made by the attorney's paralegal to trace Ewing. In November 1986, Bayoud's attorney hired a tracer of missing persons who found an unlisted telephone number for Ewing in Fort Worth, Texas, but was unable to obtain an address.
        The record further reflects that Ewing was charged with driving while intoxicated (DWI) in connection with the collision which is the basis of Bayoud's suit. Bayoud's attorney consulted the records of the DWI case from time to time in an effort to find Ewing and found that her bond had been forfeited for failure to appear in court. Bayoud's attorney consulted with her attorney and bondsman, but could get no information as to her whereabouts. In October 1987, the attorney made another driver's license check and obtained a new address listed for Ewing in Dallas, and the attorney also found that Ewing was now going under the name of Valenta; however, when the new address was checked it was found that Ewing had already moved from Dallas to Bridgeport. Ewing was traced to Bridgeport through the United States Post Office, and finally, Bayoud was successful by obtaining service of citation. The affidavits further show that Bayoud personally contacted the District Attorney's office in Dallas where he learned that an arrest warrant had been issued for Ewing when she failed to appear for trial and that the Dallas District Attorney's office had no knowledge of her whereabouts.
        The sole issue presented to this court is whether, as a matter of law, the record reveals a lack of due diligence in obtaining service of citation. The trial court filed findings of fact and conclusions of law. For Ewing to prevail in her motion for summary judgment, it was her burden to conclusively show that there was no genuine issue of material fact.
        First, it is well settled that findings of fact and conclusions of law have no place in a summary judgment proceeding. Singleton v. LaCoure, 712 S.W.2d 757, 761 (Tex. App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.); First National Bank v. Rector, 710 S.W.2d 100, 103 (Tex. App.--Austin 1986, writ ref'd n.r.e.). This court must ignore the findings and examine the proof under the summary judgment standard. Singleton, 712 S.W.2d at 761. To be entitled to summary judgment, the movant must conclusively prove all the essential elements of his claim. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). The burden is on the movant to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. Evidence favorable to the non-movant will be taken as true; every reasonable inference must be indulged, and any doubts resolved, in non-movant's favor. Id. In summary judgment proceedings, all of the evidence must be viewed in the light most favorable to the non-movant. All conflicts must be disregarded, and the evidence that tends to support the position of the non-movant is accepted as true. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984).
        The trial court, when deciding whether there exists any disputed material fact which precludes summary judgment, will consider all evidence favorable to the non-movant as true; every reasonable inference from the evidence must be indulged in favor of non-movants, and any doubts resolved in their favor. Montgomery, 669 S.W.2d at 311. If there is any genuine issue of material fact, the motion for summary judgment must be denied. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
        Appellee points out that the standard of diligence required is "that diligence to procure service which an ordinarily prudent person would have used under the same or similar circumstances." McDonald v. Evans, 217 S.W.2d 870, 871 (Tex. Civ. App.-- Amarillo 1949, no writ). Yet Appellee, in construing Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180, 182 (Tex. 1970), argues that to interrupt the running of a statute of limitations, continuous use of diligence in procuring the issuance and service of citation is required, and that this record conclusively shows that as a matter of law continuous diligence was not exercised by Bayoud. We disagree that lack of diligence is shown as a matter of law. Instead, we conclude that the question of diligence is a material fact issue, under the facts of this case, and must be found by a trier of fact, and not disposed of by summary judgment.
        The judgment of the trial court is reversed, and the cause is remanded for resolution of the fact issue of due diligence in procuring service of citation.
 
                                                                  
                                                                  BILL J. STEPHENS
                                                                  JUSTICE
DO NOT PUBLISH
TEX. R. APP. P. 90
 
88-01413/vs
 
FN:1 The Honorable Claude Williams, Chief Justice, retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
FN:2 The Honorable Bill J. Stephens, Justice, retired, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
File Date[01-02-89]
File Name[881413F]