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Hicks v. Simmons

Court of Appeals of Texas, Seventh District, Amarillo

May 31, 2017

FERRION & MARILYN HICKS, APPELLANT
v.
ISAAC SIMMONS, APPELLEE

         On Appeal from the 237th District Court Lubbock County, Texas Trial Court No. 2015-514, 681, Honorable Les Hatch, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          MEMORANDUM OPINION

          BRIAN QUINN, CHIEF JUSTICE

         This appeal involves the statute of limitations and whether it was tolled when Ferrion and Marilyn Hicks initiated suit against Isaac Simmons. Though the Hicks filed suit before the applicable two-year period of limitations expired on February 20, 2015, Simmons was not served with citation until July 8, 2015. Simmons answered the petition and eventually moved for summary judgment upon his affirmative defensive of limitations. The trial court granted the motion and entered judgment denying the Hicks recovery. The sole issue before us is whether Simmons established that he was entitled to summary judgment as a matter of law. We affirm.

         Normally, filing suit and serving citation upon the defendant within the applicable period of limitations is necessary to illustrate that the action was timely. See Brown v. Shores, 77 S.W.3d 884, 887 (Tex. App.-Houston [14th Dist.] 2002, no pet.) citing (Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990)). However, an action filed within the deadline and service perfected thereafter may still be timely if the plaintiff exercised diligence in procuring service. Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009). According to our Supreme Court in Ashley, diligence is assessed by asking if 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.'" Id. (quoting Proulx v. Wells, 235 S.W.3d 213 (Tex. 2007)). Though diligence is a question of fact, the explanation for the delay offered by the plaintiff "may demonstrate a lack of diligence as a matter of law, 'when one or more lapses between service efforts are unexplained or patently unreasonable.'" Id. Indeed, the plaintiff "has the burden to 'present evidence regarding the efforts that were made to serve the defendant, and to explain every lapse in effort or period of delay.'" Id.

         At bar, the Hicks attempted to not only explain why Simmons was not served with citation by February 20, 2015, but also illustrate the diligence exercised in perfecting service. They proffered evidence suggesting that they lacked an adequate address at which Simmons could be served and effort was being made to obtain that address. Yet, they averred in their original petition that Simmons could be served at his "home address: 3013 E 3rd St, Lubbock, TX 79403-4515." Furthermore, effort was made to complete service upon him at that address on April 7, 2015. Though unsuccessful, the process server encountered Simmons's wife at the location. She purportedly disclosed that Simmons was "currently staying in Petersburg and working in Plainview." Though she would not disclose the Petersburg address at which Simmons stayed or the name of his employer, she did disclose that "she is in contact with him as he comes to visit his kids on the weekends." The process server left his card at the address "and asked that he call." Needless to say, no call was forthcoming. Moreover, two other attempts to serve Simmons at that address on April 11th and 14th also met with no success.

         The foregoing circumstances apparently led the Hicks to consider steps to perfect service by alternate means. The process server executed an affidavit on April 16, 2015, to facilitate those steps. However, their legal counsel did not receive the affidavit until June 29, 2015. The efforts, if any, to obtain the affidavit from the process server during that two-and-one-half-month gap were not revealed by the Hicks. Nor did they offer an explanation for waiting about two and one-half months to get the affidavit. After obtaining the affidavit, though, the Hicks did file a motion for substituted service on Simmons. The motion was granted on July 6, 2015, and citation by posting was completed upon Simmons thereafter. Moreover, citation was posted and service completed at the very address mentioned in the original petition.

         Assuming that both the effort to discover a "valid" address for Simmons before April 7th and the three unsuccessful attempts at service by April 14th evinced diligence on the part of the Hicks, that was not enough to avoid summary judgment. Again, the plaintiff's explanation may demonstrate a lack of diligence as a matter of law when one or more lapses between service efforts are unexplained, according to Ashley. The Hicks did not explain the reason for delay between April 16th (the date the process server executed his affidavit) and June 29th (the day counsel for the Hicks received the affidavit). Nor did they proffer any information about the efforts, if any, they pursued to obtain the affidavit at an earlier date. Whether efforts were actually undertaken is unknown. Whether they simply forgot is unknown. Thus, what we have here is what the Supreme Court alluded to in Ashley: a demonstration of a lack of diligence as a matter of law due to one or more unexplained lapses between efforts in perfecting service. See Ashley, 293 S.W.3d at 179.

         The trial court did not err in granting the motion for summary judgment. Consequently, we overrule the sole issue ...


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