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Allstate Insurance Co. v. Barnet

Court of Appeals of Texas, Eighth District, El Paso

October 14, 2019

ALLSTATE INSURANCE COMPANY AS SUBROGEE OF ANGELA J. VASQUEZ, Appellant,
v.
JAROSLAV J. BARNET, Appellee.

          Appeal from the 205th District Court of Hudspeth County, Texas (TC# CV-04171-205)

          Before Alley, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          GINA M. PALAFOX, JUSTICE.

         Appellant Allstate Insurance Company (Allstate), as a subrogee of Angela J. Vasquez, attempts to appeal two orders of the trial court: (1) an order dismissing Allstate's case for want of prosecution; and (2) an order denying Allstate's motion to reinstate. In its underlying suit, Allstate alleged that Appellee Jaroslav J. Barnet (Barnet) negligently caused property damage to a vehicle owned by its subrogee. Following the trial court's dismissal of its case, Allstate filed a verified motion to reinstate but failed to include a certificate of service asserting that a copy of the motion had been provided to Barnet as required by Rule 165a(3) of the Texas Rules of Civil Procedure. As a result, we conclude that Allstate's motion to reinstate did not extend the timetable for filing a notice of appeal. Because Allstate did not timely file its notice of appeal, we dismiss for lack of jurisdiction.

         FACTUAL AND PROCEDURAL BACKGROUND

         On October 21, 2011, Allstate filed an original petition alleging Jaroslav Barnet had, on June 6, 2011, damaged a vehicle owned by Angela J. Vasquez by negligently causing an automobile collision with the driver of the Vasquez vehicle. Allstate alleged in its petition that it was a subrogee of Vasquez. The same day Allstate filed its petition, a citation for personal service was issued for "JAROFLAZ VARNET," whose residence was designated as being in Albuquerque, New Mexico. No return of service was ever completed on this citation.

         Over two years after the collision date, Allstate filed a motion for substituted service on Barnet with a newly designated address in Elk Grove Village, Illinois. The motion, which was filed on February 13, 2014, asserted that process had not yet been served because the process server had, thus far, been unable to locate Barnet.[1] Allstate requested that the trial court authorize service either by delivering a copy of the petition and citation to anyone over 16 years of age at the Illinois address, or by attaching a copy of said process to the front entryway or gate at the address. On February 18, 2014, the trial court granted the motion and entered an order for substituted service by either of the means requested.

         On March 21, 2014, the Clerk of Hudspeth County issued a citation by certified mail addressed to: "JAROSLAV J. BARNET, 836 S. ARLINGTON HEIGHTS #197, ELK GROVE VILLAGE, IL 60007 (Or wherever she may be found)[.]" An affidavit of service included in the clerk's record, but not file-stamped, averred that the petition and citation were served on March 31, 2014, by delivery to "Dale Prest/Owner," at the address of 836 S. Arlington Heights #187, Elk Grove Village, IL 60007, by substitute service. The delivery receipt (green card) included with the affidavit, however, showed that the article that was addressed to "Jaroslav J. Barnet, 836 S. Ari Heights Rd #197, Elk Grove Village, IL, 60007-3667," was received by "R.S. Johnston, Agent," on April 1, 2014. Two months later, on June 16, 2014, Allstate filed a motion for substitution of counsel, which certified it had been served on Allstate's prior counsel and on Great West Casualty Company. The motion, however, failed to certify that a copy was served on Barnet. On June 23, 2014, the trial court granted Allstate's motion. No further activity occurred for nearly three years.

         On May 1, 2017, Allstate filed a motion for default judgment asserting that Barnet had failed to answer after being properly served with process and the deadline for answering had passed.[2] In its motion, Allstate alleged that "[Barnet], by virtue of his failure to appear, has admitted all material allegations of Plaintiff's Petition in this cause." No further activity seemingly occurred on Allstate's default motion, and instead, the County and District Clerk of Hudspeth County sent a notice to Allstate and to "Jaroflaz Varnet," dated July 5, 2017, by first-class mail, notifying each to appear "for a civil docket hearing," on July 20, 2017, at 9 a.m. The envelope addressed to "Jaroflaz Varnet," at 3827 Montgomery Blvd NE, Albuquerque, NM 87109-1077, was later returned to the clerk with a label marked, "Return to Sender, Insufficient Address, Unable to Forward, Return to Sender." On July 21, 2017, the trial court entered an order of dismissal. In its order, the trial court recited that neither plaintiff nor its counsel were present at the hearing set for July 20, 2017, and that the case was dismissed pursuant to Rule 165a of the Texas Rules of Civil Procedure and the trial court's inherent power.

         On July 24, 2017, Allstate filed a motion to reinstate pursuant to Rule 165a of the Texas Rules of Civil Procedure. Allstate's motion stated, "counsel, though in receipt of the Notice of the Dismissal Docket, was currently undergoing medical treatment, and his on going serious medical issues inhibit his ability to travel." As before, Allstate's motion lacked a certificate of service attesting that a copy of the motion was served on Barnet. In setting a hearing on the motion, the trial court ordered Allstate's attorney to appear in person on August 3, 2017, at 8 a.m.[3]

         On August 3, 2017, the trial court issued an order granting Allstate's motion to reinstate. Thereafter, on October 26, 2017, the County and District Clerk of Hudspeth County sent a second notice to Allstate and to "Jaroflaz Varnet," notifying each to appear "for a civil docket hearing" on November 16, 2017, at 1 p.m. Two first class envelopes addressed to Barnet were mailed by the clerk on the same day, one to Albuquerque, New Mexico, and the other to Elk Grove Village, Illinois. On November 16, 2017, the envelope addressed to Barnet in Albuquerque was returned with a label noting it was returned for insufficient address and could not be forwarded. The day after the hearing date, or November 17, 2017, the trial court entered another order of dismissal. In its second order of dismissal, the trial court recited that the plaintiff and its counsel again failed to appear. The order further recited that the trial court dismissed the case pursuant to Rule 165a and the trial court's inherent power due to counsel's "complete disregard for the orders of this Court, as well as his dilatory practices which significantly interfere with the efficient administration of the Court's docket[.]"

         On December 16, 2017, at 4:34 p.m., Allstate efiled a second motion to reinstate to the District and County Clerk's office.[4] Although counsel representing Allstate included a notarized verification of the facts alleged in the motion, once again, there was no certificate of service attesting that a copy of the motion had been served on Barnet. In its motion, Allstate claimed that its failure to appear was based on lack of receipt of the notice setting a hearing for November 16, 2017. Counsel for Allstate claimed he had recently retired and had planned to handle only limited cases that were near conclusion. Accordingly, he had submitted a change of address in anticipation of closing his law office on September 30, 2017. Counsel further alleged that an employee of the clerk's office confirmed that the notice of the hearing had been sent to the law firm's prior address but had not been signed for by anyone there.[5] Beyond questioning receipt of notice of the hearing, counsel further stated that a medical appointment involving a member of his family had caused him to reset hearings in all his cases which had been set on the same day. Within the motion, Allstate's counsel urged the court to review the previously filed motion for default and decide whether a hearing was necessary. Lastly, Allstate requested that the cause be reinstated on the trial court's docket and for such other relief to which it was justly entitled.

         On January 10, 2018, the trial court entered an order denying the second motion to reinstate. In so doing, the trial court first noted that Barnet had been arguably served with process through substituted service but not until April 1, 2014. But the trial court also noted that the delivery receipt on file showed service on "R.S. Johnston," who is not a party to the suit and for whom no pleading indicates he has any relationship to Barnet. Secondly, the order recited that there was no good cause shown, nor any explanation from Allstate, for the six-year delay in prosecuting the case. The order also recited that Allstate's second motion to reinstate was based on "excuses aimed, in part, at blaming others," and that the trial court's own review of the docket revealed that no change of address notification was filed by Allstate's counsel until December 28, 2017. Finally, the order recited that "[c]ounsel's explanation that he did not receive notification of the hearing is not credible." On February 8, 2018, Allstate filed a notice of appeal challenging the trial court's second order of dismissal signed on November 17, 2017, and the ...


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