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Duncan v. Brown

Court of Appeals of Texas, Ninth District, Beaumont

July 25, 2019


          Submitted on January 24, 2019

          On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 15-10-11457-CV

          Before Kreger, Horton, and Johnson, JJ.



         Defendant 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.

         The 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). Duncan appealed.

         In one 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[.]"

         Standard of Review

         A trial 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.

         Statute of Limitations and Due Diligence in Perfecting Service

         If a 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.

         Hearing on Motion to Dismiss for Lack of Jurisdiction

         On the 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.

         Evidence Presented to the Jury

         In Brown's case in chief, Brown presented evidence about the accident, his work history, his injuries, and medical care.[1] 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 Duncan.

          With 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 limitations expired.

         Brown's 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, ...

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