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Erven v. Springer

Court of Appeals of Texas, Second District, Fort Worth

June 8, 2017

COREY ERVEN, APPELLANT
v.
DEANNA L. SPRINGER, APPELLEE

         FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 342-276521-15

          PANEL: MEIER, GABRIEL, and PITTMAN, JJ.

          MEMORANDUM OPINION [1]

          MARK T. PITTMAN JUSTICE.

         Appellant Corey Erven appeals from the summary judgment granted in favor of Appellee Deanna L. Springer on his negligence claims against her. Erven did not serve Springer until nearly a year after filing suit and after the expiration of the applicable limitations period. The trial court granted summary judgment for Springer on the basis of limitations. Because Erven failed to raise a fact issue on whether he exercised reasonable diligence in serving Springer, we affirm.

         I. Background

         Erven sued Springer and another party not involved in this appeal for damages resulting from a car accident. Erven alleged that the accident occurred on or about February 4, 2013. He filed his suit on January 21, 2015, asserting negligence claims.

         The trial court dismissed the suit on June 30, 2015 for want of prosecution. Upon Erven's motion, the trial court reinstated the case on its docket. Erven served Springer by private process server on January 7, 2016. The other party to the suit was served by private process server on May 27, 2016.

         Springer filed an answer in which she asserted the affirmative defense of limitations. She then filed a combined traditional and no-evidence motion for summary judgment based on that defense.

         In her motion, Springer alleged that the court clerk had issued the original citation on January 23, 2015, but she had not been served because, although the police report from the accident listed her address in Irving, Erven had listed her address in his petition as being in Dallas, and this incorrect address was incorporated into the citation. As evidence, Springer attached a copy of the police report listing an address for her in Irving and a copy of the petition in which Erven alleged a different address in Dallas. Springer alleged that the Dallas address Erven had used had been included in the police report, but not as her address. Rather, it was the address of the owner of the car she had been driving at the time of the accident, a person Erven had not sued.

         In the no-evidence part of her motion, Springer alleged that Erven had no evidence to show that he was diligent in serving her after he filed his original petition.

         As a traditional summary judgment ground, Springer asserted that the evidence conclusively showed that she was not served until after limitations had expired and that Erven did not use diligence in serving her. Further, Springer alleged in her motion that her summary judgment evidence showed "the virtual non-existence of any efforts to serve" her. In support, Springer attached: (1) a copy of Erven's petition listing a Dallas address for her; (2) the police report from the accident, which listed an address in Irving for Springer and an address in Dallas for "Enterprise, " the owner of the car she had been driving; (3) the first citation, issued January 23, 2015, which listed Springer's address as the Dallas address; (4) an affidavit of attempted service at the Dallas address, averring that the process server received the citation on March 12, 2015, that Springer could not be found at the Dallas address, and that there had been a company called "Enterprise" at this location "some time back"; (5) the second citation, listing an address for Springer in Carrollton; (6) an affidavit of nonservice at the Carrollton address; and (7) the return of service for Springer, showing service on January 11, 2016 at an address in Midland. She also attached copies of the trial court's show cause notice, the order dismissing the case, and the order reinstating it.

         In response to the summary judgment motions, [2] Erven asserted that whether he had used reasonable diligence in serving Springer was a fact question and could not be decided via summary judgment. In support, he attached an affidavit from the investigator who he had hired to locate Springer, in which the investigator discussed his attempts to locate her. According to the investigator, he eventually located Springer in Midland, Texas. Erven also attached an affidavit from the process server who attempted to serve Springer in Carrollton.

         The trial court granted Springer's summary judgment motions "in [their] entirety." Erven then filed a motion for new trial, which the trial court denied. The trial court severed Erven's claims against Springer from the suit, [3] and Erven now appeals.

         II. Standard and ...


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