John Philip Fernandes v. David Aaron Parra

• Court: Court of Appeals of Texas
• Decided: August 14, 2023
• Docket: 08-22-00227-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

JOHN PHILIP FERNANDES, § No. 08-22-00227-CV

Appellant, § Appeal from the

v. § 120th Judicial District Court

DAVID AARON PARRA, § of El Paso County, Texas

Appellee. § (TC# 2020DCV1293)

MEMORANDUM OPINION

John Philip Fernandes sued Daniel Aaron Parra 1 on the last day of the limitations period

following an auto-pedestrian collision. However, Fernandes did not serve Parra until nearly two

years later. Parra moved for summary judgment on limitations, and the trial court granted the

motion. Because we conclude Fernandes did not carry his burden to prove he exercised diligence

in serving citation, we affirm.

Background

On April 14, 2018, Parra and Fernandes were involved in an auto-pedestrian accident in

which Parra’s vehicle struck Fernandes as he walked across the street. The El Paso Police

Department Accident Report listed the involved driver as David Aaron Parra and his address as

1 As discussed below, Fernandes sued Parra under the wrong first name; Parra’s first name is Daniel, not David. 12171 Noel Espinoza Circle, El Paso, Texas. The report also listed the car’s owner as Elizabeth

Parra with the same address on Noel Espinoza Circle.

On April 13, 2020, Fernandes sued Parra for negligence related to the collision. Fernandes

requested a citation the same day, and the District Clerk issued the citation on April 15, 2020. The

sheriff’s deputy returned the citation unserved on May 15, 2020, noting one unsuccessful attempt

at service on April 16, 2020, at which Enrique Parra stated he did not know a David Parra nor did

a David Parra live at 12171 Noel Espinoza Circle. The sheriff’s deputy noted Enrique was

“[p]ossibly lying and covering” for Parra. Though the diligence sheet did not reflect another

attempt at personal service by the sheriff’s deputy, it noted several calls with Fernandes’ attorney.

Fernandes ran a “skip trace” on Parra, which listed the address on Noel Espinoza Circle as

the “[b]est address match.” 2 It also reflected three phone numbers, two email addresses, two social

media profiles, Parra’s employer, and Parra’s vehicle, which was registered to an address on

Clausen Drive.

On August 31, 2020, Fernandes again requested a citation from the District Clerk, which

issued shortly after. The sheriff’s deputy made the following attempts at service as noted on the

diligence sheet:

• September 4, 2020, at 8:55 a.m.: “No answer at 12171 Noel Espinoza Cir. Garage door open. 2 vehicles.”

• September 4, 2020, at 1:14 p.m.: “No answer at 12171 Noel Espinoza Cir. Garage door open. 2 vehicles.”

• September 8, 2020, at 3:26 p.m.: “Per Enrique Parra (Possibly father) advised he does not know who David is. Advised his son’s name is Aaron.”

2 The record does not make clear when Fernandes ran the skip trace.

2 • October 26, 2020, at 10:50 a.m.: “Return unserved no response to multiple better locate.”

The sheriff’s deputy returned the citation as unserved on November 4, 2020.

On April 13, 2021, Fernandes again requested citation from the District Clerk, and the

following day a sheriff’s deputy unsuccessfully attempted service on Parra at the same address,

noting “Enrique [Parra] advised defendant unknown at 12171 Noel Espinoza.” After another

unsuccessful attempt at service the following day, the sheriff’s deputy returned the citation as

unserved on April 16, 2021.

On July 23, 2021, Fernandes requested a citation from the District Clerk for a private

process server to effect service. The process server made three unsuccessful attempts at serving

Parra at the Noel Espinoza Circle address:

• September 13, 2021, at 8:04 p.m.: “Male that came to the door stated that he didn’t know who DAVID AARON PARRA was, he went inside right away didn’t give me a chance to ask him any more questions.”

• September 18, 2021, at 11:15 a.m.: “No one came to the door. Vehicle parked in driveway.”

• September 21, 2021, at 8:30 p.m.: “Female came to the door and she was very upset, she stated that DAVID AARON PARRA was not there and she didn’t know anything about him, close[d] the door on me when I asked her if she knew Mr. Parra.”

Fernandes requested the District Clerk issue citation by publication on November 18, 2021;

however, there is nothing in the record that reflects whether the trial court approved substituted

service or if service by publication was effected. In the affidavit in support of Fernandes’s request

for service by publication, his counsel stated “service attempts have been unsuccessful,” the

inquiries as to Parra’s whereabouts during such attempts were also unsuccessful, and Fernandes

“does not know anyone who would have any information on how to locate, contact, or otherwise

communicate with him.” Meanwhile, the district clerk attempted to send Parra mail at the Noel

3 Espinoza Circle address several times between August 2021 and January 2022, but the mail was

returned undelivered.

Finally, in February 2022, a process server called Parra, who stated he was unaware of any

attempt to serve him with Fernandes’s lawsuit. Parra then arranged to meet with the process server

the following day, and he accepted service on February 24, 2022. Parra noted he is the correct

defendant named in the lawsuit; however, Fernandes sued him under the incorrect name—Parra’s

name is Daniel Aaron Parra, not David.

After answering the suit, Parra sought summary judgment on limitations grounds. The trial

court granted Parra’s motion. Fernandes moved for a new trial, which was overruled by operation

of law. This appeal followed.

Standard of Review

We review a trial court’s ruling on summary judgment de novo. First United Pentecostal

Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017). We take as true all evidence

favorable to the non-movant, indulging every reasonable inference and resolving any doubts in his

favor. Id. When, as here, a defendant seeks summary judgment on an affirmative defense, he must

establish that defense as a matter of law. Valley Forge Motor Co. v. Sifuentes, 595 S.W.3d 871,

877 (Tex. App.—El Paso 2020, no pet.). If he does so, the burden then shifts to the non-movant to

raise a genuine issue of material fact. Id. But “[i]f the non-movant fails to do so, the defendant will

have conclusively established its affirmative defense and its right to summary judgment.” Id.

(citing Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008)).

Applicable Law

The applicable statute of limitations for Fernandes’s personal injury claim is two years.

TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a). Service outside the limitations period may be

4 valid so long as the plaintiff files his petition within the limitations period and exercises diligence

in procuring service on the defendant. Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009). Once

a defendant affirmatively pleads a limitations defense and shows service was untimely, the burden

shifts to the plaintiff to prove his own diligence. Id. (citing Proulx v. Wells, 235 S.W.3d 213, 216

(Tex. 2007)). The plaintiff must “present evidence regarding the efforts that were made to serve

the defendant, and to explain every lapse in effort or period of delay.” Proulx, 235 S.W.3d at 216

(citing Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990)). “Diligence is determined by asking

‘whether the plaintiff acted as an ordinarily prudent person would have acted under the same or

similar circumstances and was diligent up until the time the defendant was served.’” Ashley, 293

S.W.3d at 179 (quoting Proulx, 235 S.W.3d at 216). Diligence is typically a fact question and is

determined by considering “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.” Proulx, 235 S.W.3d at 216.

However, “a plaintiff’s explanation may demonstrate a lack of diligence as a matter of law, ‘when

one or more lapses between service efforts are unexplained or patently unreasonable.’” Ashley,

293 S.W.3d at 179 (quoting Proulx, 235 S.W.3d at 216).

Analysis

In one issue on appeal, Fernandes challenges the trial court’s order granting summary

judgment on Parra’s affirmative defense of limitations. Because Parra affirmatively pleaded the

defense of limitations and his summary judgment evidence makes clear Fernandes failed to timely

serve him, Fernandes bears the burden of explaining the delay in service. El Paso Indep. Sch. Dist.

v. Alspini, 315 S.W.3d 144, 151 (Tex. App.—El Paso 2010, no pet.) (citing Proulx, 235 S.W.3d at

216).

5 Fernandes contends he exercised diligence in attempting service of process and, on appeal,

characterizes Parra (and his family members) as “evasive” such that the lapses of time between his

service attempts are not determinative. He urges that whether he exercised diligence is a fact issue,

and the operative lapses in time a fact finder ought to consider are between the date of an

unreturned service of citation and the date on which the next citation is requested.

Parra responds that Fernandes failed to explain the several lapses between his attempts at

service such that he exercised a lack of diligence as a matter of law. Accordingly, Parra contends

the date of service does not relate back to the date Fernandes first filed his suit, and the trial court

properly entered judgment in Parra’s favor. Parra also argues Fernandes waived any argument that

he evaded service by not raising that argument in the trial court, and alternatively, even if he were

evading service, the focus of the diligence inquiry remains on Fernandes’s actions, which reflect

repeated attempts to serve the wrong person at the wrong address despite having information that

could have led to effective service sooner. Finally, Parra maintains Fernandes was required to

exercise diligence in issuance and service of citation and could not merely rely on a process server

or clerk to ensure service.

As an initial matter, we agree Fernandes waived his argument that Parra evaded service by

not raising it at the trial court level. Because Fernandes did not assert that Parra was attempting to

evade service, he did not preserve that issue for our review. TEX. R. APP. P. 33.1(a)(1); D.R.

Horton-Tex., Ltd. v. Markel Intern. Ins. Co., Ltd., 300 S.W.3d 740, 743 (Tex. 2009) (“In summary

judgment practice, ‘[i]ssues not expressly presented to the trial court by written motion, answer or

other response shall not be considered on appeal as grounds for reversal.’” (quoting TEX. R. CIV.

P. 166a(c))).

6 In his response to Parra’s motion for summary judgment, Fernandes argued only that he

filed his suit timely, he requested service of citation on the same day he filed his petition, the Texas

Supreme Court tolled service deadlines under its COVID-19 emergency orders, 3 he got Parra’s

name and address from the El Paso Police Department’s accident report, he ran a skip trace that

“provided no additional likely addresses where [Parra] might be served,” and he continued

requesting service of citation through the district clerk “on a regular basis” until Parra was served.

However, Fernandes does not attempt to explain the delays in service. Specifically, he

provides no explanation for the following periods of inactivity: (1) four months and fifteen days

between the first unsuccessful attempt at service on April 16, 2020 and his request for citation on

August 31, 2020; (2) five months and eighteen days between the last of four unsuccessful attempts

at service on October 26, 2020 and his next request for citation on April 13, 2021; (3) three months

and eight days between another unsuccessful attempt at service on April 15, 2021 and his next

request for citation on July 23, 2021; and (4) five months and three days between the last of three

unsuccessful attempts at service on September 21, 2021 and when Parra was finally served on

February 24, 2022. 4 In sum, Fernandes provides no explanation for delays in service for four

periods totaling over eighteen months. Because Fernandes never attempted to explain what steps

he took to obtain service during the periods of inactivity, he failed to raise a material fact issue

concerning his diligence, and the burden never shifted back to Parra to conclusively show why, as

a matter of law, his explanation was insufficient. Slagle v. Prickett, 345 S.W.3d 693, 698 (Tex.

3 The Texas Supreme Court’s emergency orders extended filing and service deadlines for civil cases through September 15, 2020. Order of the Supreme Court of Texas, Twenty-First Emergency Order Regarding the Covid-19 State of Disaster, Misc. Docket No. 20-9091 (July 31, 2020). 4 Though Fernandes points to his request for citation by publication in November 2021, the record does not reflect the trial court’s approval of substituted service or any evidence that he served citation by publication.

7 App.—El Paso 2011, no pet.) (citing Proulx, 235 S.W.3d at 216). Indeed, Texas courts have held

plaintiffs failed to exercise due diligence as a matter of law for providing no explanation for delays

in service for shorter periods than here. See Proulx, 235 S.W.3d at 217 (collecting cases, including

periods of inactivity over four and five months).

Further, during the periods Fernandes did take steps towards citation and service, he

continued to attempt service at the same address, despite learning via unsuccessful service attempts

that no one named David Aaron Parra lived at that address. Though Fernandes ran a skip trace that

provided additional information about Parra, including several different means of contacting him,

Fernandes apparently did not follow up on any of those leads but instead continued personal

service attempts at the same address. “[E]ven persistent, but ineffective, activity may demonstrate

a lack of diligence as a matter of law if an ordinarily prudent person would not have acted similarly

under the same or similar circumstances.” Parmer v. DeJulian, No. 12-07-00479-CV, 2008 WL

4225994, at *5 (Tex. App.—Tyler Sept. 17, 2008, no pet.) (mem. op.) (citing Webster v. Thomas,

5 S.W.3d 287, 291 (Tex. App.—Houston [14th Dist.] 1999, no pet.)). Fernandes’s actions fail to

demonstrate diligence as a matter of law. See Carter v. MacFadyen, 93 S.W.3d 307, 314–15 (Tex.

App.—Houston [14th Dist.] 2002, pet. denied) (“A flurry of ineffective activity does not constitute

due diligence if easily available and more effective alternatives are ignored.”).

Finally, there is no support for Fernandes’s position that the only lapse in time for us to

examine in a reasonable diligence inquiry is between the date of an unreturned service of citation

and the date on which the next citation is requested. See Proulx, 235 S.W.3d at 216 (“In assessing

diligence, 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 up until the time the defendant

8 was served.”); Alspini, 315 S.W.3d at 150 (“A plaintiff has a duty to exercise diligence from the

date suit is filed until the defendant is actually served.”).

Because Parra was not served prior to the expiration of the limitations period and because

Fernandes did not exercise due diligence in attempting to have Parra served, the date of effective

service upon Parra does not relate back to the original filing of the lawsuit. Alspini, 315 S.W.3d at

151. We overrule Fernandes’s sole issue on appeal.

CONCLUSION

For the above reasons, we affirm the trial court’s order granting summary judgment in

Parra’s favor.

YVONNE T. RODRIGUEZ, Chief Justice

August 14, 2024

Before Rodriguez, C.J., Palafox, and Soto, JJ.