Court of Appeals of Texas, Twelfth District, Tyler
CHERIE FRANKLIN, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF EULA MAE FRANKLIN, APPELLANT
LONGVIEW MEDICAL CENTER, L.P., D/B/A LONGVIEW REGIONAL MEDICAL CENTER, APPELLEE
from the County Court at Law No. 2 of Gregg County, Texas
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
T. WORTHEN CHIEF JUSTICE
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.
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.
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,
attorney's office was closed during Hurricane Harvey. But
Gayton resumed her attempts to contact the process server on
September 5, 2017.
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,
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
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.
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
summary judgment is a question of law, a trial court's
summary judgment decision is reviewed de novo. 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).
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 ...