Court of Appeals of Texas, Ninth District, Beaumont
Submitted on January 24, 2019
Appeal from the 284th District Court Montgomery County, Texas
Trial Cause No. 15-10-11457-CV
Kreger, Horton, and Johnson, JJ.
Edna Adams Duncan appeals the trial court's denial of her
motion for judgment notwithstanding the verdict after a jury
awarded damages to Plaintiff Harold Lee Brown in this
personal injury suit resulting from an automobile/pedestrian
accident. The primary issue on appeal is whether Brown
exercised due diligence in serving Duncan with the petition.
The evidence presented to the jury established that the
accident occurred on October 30, 2013. Duncan testified at
trial that she was not served with this suit until June 2016.
Duncan filed an answer on July 11, 2016. Approximately four
months later, Duncan filed an amended answer and asserted a
limitations defense arguing the claims were barred.
jury found Duncan eighty percent liable for the accident and
for Brown's injuries and awarded damages for past medical
expenses and loss of earning capacity sustained in the past.
After the jury's verdict was announced, Duncan made an
oral motion for judgment notwithstanding the verdict (JNOV)
and informed the court that she would be filing a written
motion for JNOV. The trial court denied the oral motion,
later signed a final judgment in accordance with the jury
verdict, and never signed the proposed JNOV filed by Duncan.
Duncan moved for a new trial, and the motion was overruled by
operation of law. See Tex. R. Civ. P. 329b(c).
appellate issue, Duncan argues the trial court erred in
denying her motion for JNOV because Brown failed to exercise
due diligence in serving the petition on the defendant.
Duncan contends that "the evidence conclusively
demonstrated that Brown did not serve Duncan until over seven
months after the limitations period expired and after a
five-month gap of inactivity[.]"
court may disregard a jury finding and enter a judgment
notwithstanding the verdict if the finding is immaterial or
if there is no evidence to support the finding. Tiller v.
McLure, 121 S.W.3d 709, 713 (Tex. 2003); Spencer v.
Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex.
1994). We review rulings on motions for a JNOV under the same
legal-sufficiency test that we review no-evidence summary
judgments and directed verdicts. See Tanner v. Nationwide
Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009)
(citing City of Keller v. Wilson, 168 S.W.3d 802,
823 (Tex. 2005)). Applying that standard, a no-evidence point
will be sustained when (1) there is a complete absence of
evidence of a vital fact, (2) the court is barred by rules of
law or rules of evidence from giving weight to the only
evidence offered to prove a vital fact, (3) the evidence
offered to prove a vital fact is no more than a scintilla, or
(4) the evidence conclusively establishes the opposite of a
vital fact. City of Keller, 168 S.W.3d at 810
(citing King Ranch, Inc. v. Chapman, 118 S.W.3d 742,
751 (Tex. 2003), and other cases). We view the evidence and
inferences in the light most favorable to the jury's
finding. Id. at 807. The test for legal sufficiency
is "whether the evidence at trial would enable
reasonable and fair-minded people to reach the verdict under
review." Id. at 827. In making this
determination, we credit favorable evidence if a reasonable
factfinder could, and disregard contrary evidence unless a
reasonable factfinder could not. Id. So long as the
evidence falls within the zone of reasonable disagreement, we
may not substitute our judgment for that of the factfinder.
Id. at 822. The trier of fact is the sole judge of
the credibility of the witnesses and the weight to be given
their testimony. Id. at 819.
of Limitations and Due Diligence in Perfecting Service
plaintiff files his petition within the limitations period,
service outside the limitations period may still be valid if
the plaintiff exercises due diligence in procuring service on
the defendant. Ashley v. Hawkins, 293 S.W.3d 175,
179 (Tex. 2009); Gant v. DeLeon, 786 S.W.2d 259, 260
(Tex. 1990) (per curiam) (citing Zale Corp. v.
Rosenbaum, 520 S.W.2d 889, 890 (Tex. 1975) (per
curiam)). Once a defendant has affirmatively pleaded the
defense of limitations and shown that service was untimely,
the burden shifts to the plaintiff to prove diligence in his
efforts to effectuate service. Ashley, 293 S.W.3d at
179; Proulx v. Wells, 235 S.W.3d 213, 216 (Tex.
2007) (per curiam). "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). Although
ordinarily a fact question, a plaintiff's evidence 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. (quoting Proulx, 235 S.W.3d at 216).
The plaintiff has the burden to explain every lapse in effort
or period of delay. Id.
on Motion to Dismiss for Lack of Jurisdiction
morning of trial, before the parties began jury selection,
Duncan's attorney e-filed a Motion to Dismiss for Lack of
Jurisdiction arguing that the case was barred by the statute
of limitations and that Brown failed to exercise due
diligence in perfecting service of process. The trial court
denied the motion on the record, noting that the trial court
had jurisdiction and the cases do not support a dismissal
based on a lack of jurisdiction.
Presented to the Jury
Brown's case in chief, Brown presented evidence about the
accident, his work history, his injuries, and medical
care. After the plaintiff initially rested, the
defense attorney made a motion for directed verdict arguing
the plaintiff failed to put on any evidence as to service or
to establish due diligence. The trial court allowed
Brown's counsel to reopen the evidence to put on evidence
about the exercise of due diligence and his attempts to serve
respect to the issue of due diligence, the jury heard
testimony from Brown's counsel and it received exhibits.
At trial, Brown's counsel testified that in an earlier
suit he filed on March 24, 2014, Duncan was served September
2, 2014, and Duncan provided her deposition in that
proceeding. Brown's attorney explained to the jury that
Brown non-suited the first suit because Brown was unable to
be present for trial as he was out of state seeking
employment, and the trial court refused to grant a
continuance. Brown's attorney testified that Brown filed
suit again against Duncan in the 284th District Court of
Montgomery County on October 28, 2015, two days before
counsel explained to the jury that he exercised due diligence
in serving Duncan, stating
. . . [W]e filed [the request for issuance of citation to
Duncan] with the Court, and we paid the Court for the sheriff
to serve her.
At some point, there were issues regarding serving her,
because the sheriff, once they get that kind of citation,
they have the authority to do it by mailing. And then they
did that . . . and that is the . . . [tracking documentation]
that the Court printed for us - -
- - which showed that the sheriff - - the sheriff officers
mailed - -mailed it to her house. You're going to see it
as you . . . go to make your decision, it went to her house
by certified mail, they left notice there, and then it was
unclaimed. She didn't pick it up. Then it went back to
her house and came back to the court.
When that happened, we did not have notice of that, that
process was delayed, because no matter if you have the
sheriff's service, you have the opportunity that at least
you have somebody impartial and neutral who will get the
service done. And then we were waiting.
When we did not hear anything, that's when we received
the notice from the court that she has not been served, and
then we filed a motion for substitute of process, which was
filed March 10, 2016. . . .
So after that motion for substituted service was filed so we
could serve Ms. Duncan, you can do it by publication,
although that brings in more embarrassment than anything
else. That's why you have to try other processes, ...