James Fontenot and Jan Fontenot v. Jeffery Gibson

• Court: Court of Appeals of Texas
• Decided: May 16, 2013
• Docket: 01-12-00747-CV
• Status: Published

Opinion

Opinion issued May 16, 2013

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-12-00747-CV ——————————— JAMES FONTENOT AND JAN FONTENOT, APPELLANTS V. JEFFERY GIBSON, APPELLEE

On Appeal from County Civil Court at Law Number Three Harris County, Texas Trial Court Cause No. 998611

MEMORANDUM OPINION

Jan Fontenot appeals the trial court’s summary judgment in favor of Jeffery

Gibson on limitations grounds, ruling that, as a matter of law, Fontenot had failed

to exercise reasonable diligence in obtaining service of process on Gibson after the

applicable limitations period had expired. On appeal, Fontenot contends that the

trial court erred in granting summary judgment, because she raised a fact issue on the question of diligence of service. We agree and therefore reverse and remand for

further proceedings.

James Fontenot also appealed the trial court’s judgment, but he has moved to

dismiss his appeal. The motion is granted, and we dismiss James Fontenot’s

appeal. See TEX. R. APP. P. 42.1(a)(1).

Background

On August 14, 2009, Fontenot and Gibson were involved in a car accident.

Fontenot sued Gibson and requested that the clerk of the court issue a citation on

August 12, 2011, two days before the two-year statute of limitations expired.1 The

clerk of the court issued the citation on August 25. Fontenot forwarded the citation

to a private process server on September 14, directing him to serve Gibson at the

address listed for him with the Texas Department of Transportation. The process

server attempted service on September 21, but he failed and returned the citation,

noting that, according to the current resident, Gibson had not lived at the specified

address in several years.

Fontenot began a search for Gibson’s current address. She requested a

forwarding address from the postal service, and received notice on November 1

that it had no forwarding address on file. Her attorney searched various websites,

both paid and free. On November 18, the attorney located an address for the

1 See TEX. CIV. PRAC. & REM. CODE. ANN. § 16.003(a) (West Supp. 2009) (establishing two-year statute of limitations for personal injury actions).

2 defendant on the paid website, www.publicdata.com. Fontenot amended her

petition and requested a new citation that day. The clerk issued the citation on

December 14. On January 9, 2012, Fontenot forwarded the citation to the process

server, who attempted service multiple times starting on February 2, and eventually

successfully served Gibson on February 14.

Gibson appeared and moved for summary judgment, arguing that Fontenot

had failed to exercise diligence in serving him after the limitations period had run.

In support of the motion, Gibson averred that he had resided at the address at

which he was finally served for more than three years and had never avoided

service of process.

Discussion

Standard of Review

We review de novo the trial court’s ruling on a motion for summary

judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d

844, 848 (Tex. 2009). In a traditional motion for summary judgment, the movant

must establish that no genuine issue of material fact exists and that the movant is

entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). When a defendant

moves for summary judgment, he must either: (1) disprove at least one essential

element of the plaintiff’s cause of action, or (2) plead and conclusively establish

each essential element of its affirmative defense, thereby defeating the plaintiff’s

3 cause of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). We review the

evidence in the light most favorable to the nonmovant, crediting favorable

evidence if reasonable jurors could do so, and disregarding contrary evidence

unless reasonable jurors could not. See Fielding, 289 S.W.3d at 848 (citing City of

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)).

Diligence in Service

A plaintiff raising a personal injury claim must “bring suit” within two years

after the day that the cause of action accrues. TEX. CIV. PRAC. & REM. CODE. ANN.

§ 16.003(a). To “bring suit” a plaintiff not only must file suit within the limitations

period, but also must exercise diligence in serving the defendant with process.

Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (per curiam); see also Ashley v.

Hawkins, 293 S.W.3d 175, 179 (Tex. 2009) (service on defendant outside

limitations period valid only if plaintiff exercised diligence in serving defendant

with process); Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007) (per curiam) (“A

timely filed suit will not interrupt the running of limitations unless the plaintiff

exercises diligence in the issuance and service of citation.”). If a defendant

affirmatively pleads a limitations defense and demonstrates that service has

occurred after the limitations deadline, the burden shifts to the plaintiff to prove

diligence. Ashley, 293 S.W.3d at 179; Proulx, 235 S.W.3d at 216. To show

diligence, a plaintiff must show that he made reasonable efforts to serve the

4 defendant, and he must explain every lapse in effort or period of delay. Proulx, 235

S.W.3d at 216. The question of the plaintiff’s diligence is usually one of fact to be

“determined by examining 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.

But, if “one or more lapses between service efforts are unexplained or patently

unreasonable,” then the record demonstrates lack of diligence as a matter of law.

Id. In Proulx, the Texas Supreme Court held that three-week delays between

issuance of a citation and the process server’s receipt of citation, two attempts at

service at different addresses, and a three-week delay between the order permitting

substituted service on the defendant’s brother and the first attempt at service on the

brother did not conclusively show lack of diligence. Id. at 216–17.

Fontenot did not serve Gibson with citation until February 14, 2012—about

six months after the statute of limitations had run. Fontenot thus has the burden to

show diligence and explain her delay in serving Gibson. See Ashley, 293 S.W.3d at

179; Proulx, 235 S.W.3d at 216.

Most of this six-months period is made up of various short delays—

including a two-week delay between the request for the first citation and the court

issuing the citation, followed by a two-week delay in delivering it to a process

server; a three-week delay between the court clerk issuing a second citation and

Fontenot sending the citation to a process server; and a three-week delay between

5 the process server’s receipt of the citation and the process server’s first attempt at

service. Like the various two- and three-week delays in Proulx, the delays in this

case do not conclusively demonstrate that Fontenot lacked diligence in her efforts

to serve Gibson. See Proulx, 235 S.W.3d at 216–17. Such delays are not so

“unexplained or patently unreasonable” that they show lack of diligence as a

matter of law. See id. at 16.

The longest period of delay was a less than two-month period, during which

Fontenot searched for Gibson’s most recent address, after she learned that the first

citation listed the wrong address. To explain this delay, Fontenot’s attorney averred

that he had requested that the process server investigate Gibson’s whereabouts,

requested a forwarding address from the postal service, and searched various

websites for Gibson’s address. Fontenot’s search efforts raise a fact issue about

diligence. See Tate v. Beal, 119 S.W.3d 378, 381 (Tex. App.—Fort Worth 2003,

pet. denied) (holding facts raised issue on diligence when first citation was

returned unserved and plaintiff searched for two and one-half months before

discovering defendant’s address and requesting service again).

Gibson responds that Fontenot’s explanations are too vague to raise a fact

issue about diligence. The cases on which Gibson relies, however, are

distinguishable. In Richard v. Turner, statements that the attorney searched on the

internet several times during an eleven-month period were held not to be a valid

6 explanation, but eleven months is significantly longer than the delay here. No. 13-

08-00015-CV, 2009 WL 2712393, at *2 (Tex. App.—Corpus Christi Aug. 31,

2009, pet. denied) (mem. op.). The plaintiff in Richard knew the defendant’s

address for more than two months before requesting service. Id. Similarly, in Hull

v. Vidaurri, the attorney’s testimony that she called several people to find the

defendant during a six-month period but made the calls in the first two months, left

a four-month unexplained gap in efforts. Hull v. Vidaurri, No. 03–08–00204–CV,

2010 WL 199651, at *5–*6 (Tex. App.—Austin Jan. 22, 2010, no pet.) (mem. op.).

In contrast, the search in this case was less than two months. And in addition to his

own efforts on the internet, Fontenot’s attorney requested that a process server

investigate Gibson’s address. The attorney requested service at Gibson’s current

address as soon as the address was discovered. The search in this case is more like

the two-and-a-half month search in Tate that raised a fact issue about diligence.

See Tate, 119 S.W.3d at 381.

7 Conclusion

Viewing the evidence in the light most favorable to Fontenot, we conclude

that the summary judgment evidence raises a fact issue as to reasonable diligence

in procuring service. We therefore reverse the judgment of the trial court as to Jan

Fontenot and remand the case to the trial court for further proceedings. We dismiss

the appeal as to James Fontenot.

Jane Bland Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.