Evelyn Auten and Eldon Auten v. McDonalds Corporation Et Al--Appeal from 56th District Court of Galveston County

Reversed and Remanded and Majority and Dissenting Opinions filed November 2, 2006

Reversed and Remanded and Majority and Dissenting Opinions filed November 2, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00393-CV

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EVELYN and ELDON AUTEN, Appellants

V.

D.J. CLARK, INC. d/b/a DOUBLE ARCHES CORPORATION, DONALD E. CLARK, Individually and JANET C. CLARK, Individually, Appellees

On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Cause No. 03CV0571

D I S S E N T I N G O P I N I O N

Limitations statutes afford plaintiffs what the legislature deems a reasonable time to present their claims and protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990). Thus, the purpose of a statute of limitations is to establish a point of repose and to terminate stale claims. Id.

Moreover, the mere filing of suit will not interrupt the running of limitations unless due diligence is exercised in the issuance and service of citation. Kindle v. Wood County Elec. Co-op, Inc., 151 S.W.3d 206, 209 (Tex. App.CTyler 2004, pet. denied). Whether a plaintiff was diligent in serving a defendant is normally a question of fact, but if no excuse is offered for a delay or if the lapse of time coupled with the plaintiff's acts conclusively negate diligence, lack of diligence will be found as a matter of law. Proulx v. Wells, 186 S.W.3d 630, 633 (Tex. App.CFort Worth 2006, pet. filed).

Here, the delay between filing the petition and effecting service is more than 12 months. While counsel offers up a litany of unfortunate events as an excuse for the delay, these circumstances fall well short of explaining the full duration of his inactivity. Some of the delay is explained, but many of the incremental delays are unexplained. For example, :

(1) 2 weeks between filing and the first attempt at service;

(2) 3 weeks between the process server=s last attempt at service and the filing of his affidavit;

(3) 5 weeks between the hiring of a new legal assistant and the filing of a motion for substituted service;

(4) 9 weeks between the filing of motion for substituted service and the first follow up contact with the district clerk=s office;

(5) 5 weeks between the first follow up contact with the district clerk=s office and the second follow up contact with the district clerk=s office;

(6) 2 weeks between the second follow up contact with the district clerk=s office and the third follow up contact with the district clerk=s office; and

(7) 42 weeks between the third follow up contact with the district clerk=s office and the fourth follow up contact with the district clerk=s office.

These delays constitute more than 30 weeks of unexplained inactivity or approximately 72 months.

The majority suggest that counsel=s hardships may well account for the full 12 month delay, and, thus, they find a fact issue is raised regarding counsel=s exercise of due diligence. However, I see no evidence that counsel felt any exigency or urgency in effecting service of process. The record, rather, indicates that counsel was content to repeatedly let weeks of unexplained inactivity accrue into a total of more than seven months. Accordingly, I would find, as a matter of law, that the Autens have failed to show due diligence in effecting service of process. Thus, I must respectfully dissent.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Majority and Dissenting Opinions filed November 2, 2006.

Panel consists of Justices Hudson, Fowler, and Seymore.(Seymore, J., majority)