Dolores Gabriles v. Sam's East, Inc., D/B/A Sam's Club

• Court: Court of Appeals of Texas
• Decided: May 28, 2009
• Docket: 01-08-00893-CV
• Status: Published

Opinion

Opinion Issued May 28, 2009

Opinion Issued May 28, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00893-CV

DOLORES & JAMES GABRILES, Appellant

V.

SAM’S EAST, INC., D/B/A SAM’S CLUB, Appellee

On Appeal from the 122nd District Court

Galveston County, Texas

Trial Court Cause No. 07-CV-1393

MEMORANDUM OPINION

           Delores Gabriles and her husband, James, appeal the trial court’s summary judgment in their suit against Sam’s East, d/b/a Sam’s Club (Sam’s Club).  The Gabrileses contend that the trial court erred in granting summary judgment on the ground of limitations and erred in overruling their motion for new trial.  We affirm.

Background

On December 15, 2005, Delores Gabriles entered a Sam’s Club store in Texas City.  After completing her purchase, she fell over a flatbed shopping cart allegedly placed behind her by Sam’s Club employees.  On December 3, 2007, the Gabrileses sued Sam’s Club for Delores’s injuries resulting from that fall and for James’s loss of consortium.  The clerk’s office issued citation in the case on December 7, 2007, approximately one week before the end of the two-year statute of limitations.  See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon 2002 & Supp. 2008).  Sam’s Club did not receive service of process until April 8, 2008, about four months after the statute of limitations had expired.  Sam’s Club moved for summary judgment on the ground that the Gabrileses had failed to exercise due diligence in securing service of process.  In response, the Gabrileses urged that they had provided the suit papers to a process server in December 2007.  The trial court granted summary judgment.  The Gabrileses moved for a new trial.  They later supplemented the motion for new trial with an affidavit of from the trial attorney, explaining his efforts to secure service of process.  The trial court denied the motion for new trial.

Discussion

          The Gabrileses contend that the trial court erred in granting summary judgment on the basis of limitations because enough evidence of diligence in service of process exists in the record to create a fact issue for the jury.  The Gabrileses further contend that the trial court erred in denying their motion for new trial.

Standard of Review

We review a trial court’s summary judgment de novo.  Valence Operating Co. v. Dorsett, 164 S.W.3d  656, 661 (Tex. 2005); Provident Life & Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).  Under the traditional standard for summary judgment, the movant has the burden to show that no genuine issue of material fact exists and that the trial court should grant a judgment as a matter of law.  Tex. R. Civ. P. 166a(c);  KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).  When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant and resolve any doubts in the nonmovant’s favor.  Dorsett, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215; Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). 

Limitations and Service of Process

A suit for personal injuries, like this one, must be brought within two years from the time the cause of action accrues.  See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a).  But, a timely filed suit does not interrupt the running of limitations if the plaintiff exercises reasonable diligence in the issuance and service of the citation.  Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007).  If a plaintiff diligently obtains service after limitations has expired, the date of service relates back to the date of filing.  Id. 

Once a defendant has affirmatively pled limitations as a defense and showed that it was served after the limitations period expired, the burden shifts to the plaintiff to explain the delay.  Id. at 216 (citing Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990)).  If the plaintiff’s explanation for the delay raises a material fact issue concerning the diligence of service efforts, then the burden shifts back to the defendant to conclusively show that, as a matter of law, the explanation is insufficient.  Id. (citing Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975)).  The relevant inquiry is whether the plaintiff acted as an ordinarily prudent person would have acted under the same or similar circumstances and was diligent until the defendant was served.  Id.  Generally, courts examine the time it took to secure citation, service, or both, and the type of effort or lack of effort the plaintiff expended in procuring service.  Id.  For example, in Proulx, the defendant evaded service by moving to different addresses.  Id. at 217.  The plaintiff’s attorney employed two different process servers, two investigators, and attempted to serve process on the defendant over thirty times at five different addresses.  Id.  There, the court concluded that at least a fact issue existed as to whether the plaintiff diligently obtained service.  Id.

Here, the Gabrileses do not dispute that Sam’s Club was not timely served, but they argue that some evidence of due diligence in service was presented to the trial court, thus precluding summary judgment.  Upon filing suit, the Gabrileses’ attorney engaged a process service to serve process on Sam’s Club.  The process server avers that she received the citation in December 2007.  In January 2008, she believed that she had served Sam’s Club by sending the citation by certified mail, but she was unable to locate a confirmation card from the post office.  She did not prepare an affidavit of lost citation or obtain a new citation.  Her belief was mistaken.  Rather, it appears that, while moving paperwork from different cars to the office, she lost the citation.  In March 2008, she discovered the citation and immediately sent it to a process server in Dallas for personal service.  Service was not effected until April 2008.  She averred, “this was just a mistake.”

          The process server’s explanation for the delay in service does not raise a material fact issue as to diligence where three months passed after issuance of the citation without any effort to serve Sam’s Club, an entity whose whereabouts are well-known, and who did not evade service.  The Gabrileses failed to present any evidence other than the process server’s affidavit in response to Sam’s Club’s summary judgment motion.  The fact that the process server failed to timely mail the citation to Sam’s Club’s registered agent does not constitute a sufficient explanation for the delay in service without any effort to discover and correct the mistake until more than two months had elapsed.  Deficiencies in the performance of the server are imputed to the attorney who retained the process server.  Gonzalez v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 590 (Tex. App.—Corpus Christi 1994, no writ).  We hold that the process server’s affidavit, without more, does not raise a fact issue as to limitations because it does not demonstrate reasonable efforts to secure service.

The Gabrileses further complain that the trial court erred in denying their motion for new trial because, in the motion, trial counsel attached his affidavit, explaining his failure to ensure that process was served on Sam’s Club.  The attorney confirms timely delivery of the citation to County Wide Process Service on December 17, and, thereafter, that he “periodically” encountered County Wide agents in his office building three to five times per month and inquired during these encounters about efforts to serve Sam’s Club.  No agent ever told him that his assistance was necessary in serving the defendant.  He further states that, based on the customary practice in their long-standing business relationship, he relied on County Wide to notify him of any difficulties in serving the defendant.

          The responsibility for timely effecting service of process falls on the person or party requesting the service and not the process server.  Tex. R. Civ. P. 99(a); Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994).  Under existing conditions, the attorney’s actions in periodically inquiring about County Wide’s efforts to serve process on Sam’s Club and relying on County Wide to notify him of any problems in service during a four-month delay in service do not constitute due diligence.  See Roberts v. Padre Island Brewing Co., 28 S.W.3d 618, 621–22 (Tex. App.—Corpus Christi 2000, pet. denied); Boyattia v. Hinojosa, 18 S.W.3d 729, 734 (Tex. App.—Dallas 2000, pet. denied); see also Gonzalez, 884 S.W.2d at 590 (holding that if attorney had been diligent, he would have noticed that defendant had not filed an answer and that he could easily have checked with court clerk to verify service upon defendants instead of relying on process server) . 

In Roberts, the attorney employed a process server who never served the defendant.  Id. at 621.  On appeal, the plaintiff argued that her service on the defendant seventy-six days after the limitations period had expired should relate back to the filing of her claim because she exercised diligence by repeatedly attempting to contact the process server and the county clerk’s office to inquire about the status of service.  Id.  Our sister court held, however, that the appellant failed to use reasonable diligence in service because she failed to demonstrate that she had attempted service by any means other than relying on the process server, and a reasonable person in the same circumstances would have employed an alternate process server or would have attempted service through another court-approved method.  Id.  The court also pointed out that, like here, the defendant was a corporation with a registered agent for service of process who could be served through certified mail.  Id. at 621–22.  In Boyattia, the court clerk issued a citation for the defendant, as directed by the plaintiff, but it was three months before it was forwarded to the constable to serve.  Boyattia, 18 S.W.3d at 734.  Our sister court held that three months, without explanation, is not a reasonable time for no service effort to have begun; thus, the plaintiff was obligated to make further efforts to ensure that service was accomplished.  Id.  Like in Roberts and Boyattia, here, an ordinarily prudent person would have undertaken further efforts to ensure that service was effected promptly, when all indication was that not even an attempt at service was made for four months after the citation issued.  The efforts undertaken by the plaintiff in Proulx, particularly where the defendant was evading service, are in stark contrast to this case, where the defendant is a corporation with a registered agent, and admittedly, the postal service never returned any proof that certified mail was made—or that the citation was even ever placed into the hands of a letter carrier.  In these circumstances, we hold that the trial court did not abuse its discretion in denying the motion for new trial.

Conclusion

We hold that the trial court properly granted summary judgment on limitations, as the affidavits filed with the trial court are insufficient to raise a fact issue as to due diligence.  We therefore affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Judges Keyes, Hanks, and Bland.