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Franklin v. Longview Medical Center, L.P.

Court of Appeals of Texas, Twelfth District, Tyler

June 5, 2019


          Appeal from the County Court at Law No. 2 of Gregg County, Texas (Tr.Ct.No. 2017-1164-CCL2)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.



         Cherie Franklin, individually and as representative of the Estate of Eula Mae Franklin, Deceased (Franklin), appeals the trial court's summary judgment rendered in favor of Appellee Longview Medical Center, L.P. d/b/a Longview Regional Medical Center (the Hospital). Franklin raises three issues on appeal. We affirm.


         This matter arose following the death of Eula Mae Franklin, who at the time of her death, was a patient at the Longview Regional Medical Center. Franklin filed suit on June 19, 2017, alleging negligence, medical malpractice, and wrongful death. Franklin requested issuance of citation that same day. She further arranged for a process server to serve the Hospital. The two-year statute of limitations for these causes of action ran on June 20, 2017.[1]

         From approximately June 26, 2017, until August 24, 2017, Karla Gaytan, a legal assistant for Franklin's attorney, made nine phone calls to the process server. The longest interval between these nine calls was twelve days. During this time, when Gaytan was able to speak to the process server, he told her he still was "in the process" of trying to serve the defendants. During another of these conversations, he told Gaytan the defendants would be served in "a few days." By their August 9, 2017, conversation, the process server told Gaytan he was "having problems" serving the defendants. Thereafter, Gayton called and left voicemails for the process server on August 14, 17, and 24, 2017.

         Franklin's attorney's office was closed during Hurricane Harvey. But Gayton resumed her attempts to contact the process server on September 5, 2017.

         After four phone calls, Gayton reached the process server on September 21, 2017, and he told her that the citations had been served and he was in the process of filing the affidavit of service. Gayton monitored the Gregg County Clerk's website to determine when the affidavit of service was filed. When that did not occur, she attempted to contact the process server an additional five times, beginning on October 3, 2017, until she discovered that his phone had been disconnected when she attempted to contact him on November 7, 2017.

         On November 14, 2017, Gayton called the Gregg County Clerk's office and was informed that she would have to request new citations, which she did on November 15, 2017. A new process server sent process to the defendants by certified mail on November 17, 2017, and service was accomplished on November 21, 2017.

         The Hospital answered and, later, moved for summary judgment, arguing that Franklin's suit was barred by limitations because Franklin did not exercise due diligence in effecting service. Franklin responded and, in reliance on Gayton's affidavit testimony and the Texas Supreme Court's emergency order following Hurricane Harvey, argued that she exercised due diligence in serving the Hospital. Ultimately, the trial court rendered summary judgment in the Hospital's favor, and this appeal followed.

         Summary Judgment

         In her second and third issues, Franklin argues that the trial court erred in granting the Hospital's motion for summary judgment because (1) the Hospital failed to demonstrate why Franklin's explanation for the delay in service was insufficient and (2) the trial court erroneously considered the Texas Supreme Court's Hurricane Harvey emergency order's effect as tolling the limitations period rather than considering it as an explanation for the delay of service.

         Standard of Review

         Because summary judgment is a question of law, a trial court's summary judgment decision is reviewed de novo.[2] See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); McMahon Contracting, L.P. v. City of Carrollton, 277 S.W.3d 458, 467-68 (Tex. App.-Dallas 2009, pet. denied). The standard of review for a traditional summary judgment motion pursuant to Texas Rule of Civil Procedure 166a(c) is threefold: (1) the movant must show there is no genuine issue of material fact and he is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed, material fact issue precluding summary judgment, the court must take as true evidence favorable to the nonmovant; and (3) the court must indulge every reasonable inference from the evidence in favor of the nonmovant and resolve any doubts in the nonmovant's favor. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984); Hightower v. Baylor Univ. Med. Ctr., 251 S.W.3d 218, 221-22 (Tex. App.-Dallas 2008, pet. struck).

         A defendant moving for summary judgment must either (1) disprove at least one essential element of the plaintiff's causes of action as a matter of law or (2) plead and conclusively establish each essential element of an affirmative defense. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 476-77 (Tex. 1995); Hightower, 251 S.W.3d at 222. Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Talford v. Columbia Med. Ctr. at Lancaster Subsidiary, L.P., 198 S.W.3d 462, 464 (Tex. App.-Dallas 2006, no pet.). The burden shifts "only if the movant's evidence meets the criteria of Texas Rule of Civil Procedure 166a(c) and ...

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