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Ventura v. Vasquez

Court of Appeals of Texas, First District

December 19, 2019

AUSENCIO VENTURA AND JUAN CARLOS VENTURA, Appellants
v.
MARTIN VASQUEZ, Appellee

          On Appeal from the 127th District Court Harris County, Texas Trial Court Case No. 2016-13514

          Panel consists of Chief Justice Radack and Justices Keyes and Lloyd.

          MEMORANDUM OPINION

          SHERRY RADACK, CHIEF JUSTICE

         Appellants, Ausencio Ventura and Juan Carlos Ventura, challenge a summary judgment rendered in favor of appellee, Martin Vasquez, based on limitations grounds. Vasquez's motion for summary judgment asserted that, although they had filed suit before limitations expired, Appellants had not served him until after limitations ran, and they had not used due diligence in serving him.

         In one issue, Appellants assert that the trial court erred in granting Vasquez's motion for summary judgment. They contend that the evidence raised a fact issue regarding whether Appellants had exercised due diligence in effecting service. Because we conclude that the summary-judgment evidence did not raise a fact issue on this point, but instead established conclusively that Appellants did not exercise reasonable diligence in serving Vasquez, we affirm the trial court's judgment.

         Background

         On March 5, 2014, Appellants and Vasquez were involved in a car accident. Claiming injuries from the accident, Appellants sued Vasquez on March 2, 2016, three days before the expiration of the statute of limitations. See Tex. Civ. Prac. & Rem. Code § 16.003(a) (establishing two-year statute of limitations for personal-injury actions). Appellants retained a private process serving company, Professional Civil Process, to serve Vasquez.

         On March 4, 2016, Appellants provided Professional Civil Process with the citation and petition to serve Vasquez. Between March 5 and March 10, 2016, the assigned process server, F. Berry, made four unsuccessful attempts to serve Vasquez at an address on 15th Street in La Porte, Texas, identified as Vasquez's residence.

         On March 11, 2016, Berry signed a document entitled, "Declaration of Not Found (Due and Diligent Search)," in which Berry stated that, "[a]fter due and diligent effort as set forth below, I have been unable to effect personal service upon Vasquez, Martin." Berry then provided the details regarding the four unsuccessful attempts he had made to serve Vasquez at the address. Berry explained that, during the first attempt on March 5, he was told by a teenager at the address that the boy's father, Martin Vasquez, Sr., lived there but that his brother, Martin Vasquez, Jr., did not. On the second attempt at service on March 7, Berry found no one at home and left a delivery notice at the residence. Berry returned to the address on the evening of March 9. Berry noted in the declaration that "the subject" resided at the address "but is not home at this time." Martin Sr.'s teenage son told Berry that his father was working nights, and Berry left a delivery notice with the teenager. Finally, on March 10, Berry said that he again returned to the address and spoke with Martin Sr., who told him that he did not know anything about the car accident. Martin Sr. said that it must have been his 20-year-old son, Martin Jr., who had been involved in the accident. Based on the exchange, Berry determined that Martin Jr., not Martin Sr., was the person who needed to be served. Berry also determined that Martin Jr. did not reside at the address with his parents.

         Appellants' attorney, S. Cruz, provided Professional Civil Process with Vasquez's birthdate and driver's license number on March 11. Although Cruz discussed Vasquez's address with Professional Civil Process Servers, no further attempts at service were made during the remainder of March, April, and May. The address, at which Berry made the four unsuccessful service attempts, was ultimately determined to be Vasquez's address.

         On May 25, 2016, Appellants filed the Declaration of Not Found that Berry signed. Five weeks later, on June 30, 2016, Appellants filed a motion for substitute service. On July 14, the trial court signed an order granting the motion. Appellants informed Professional Civil Process Servers about the order granting substitute service on July 26. Vasquez was personally served on August 1, 2016.

         After answering, Vasquez filed a motion for summary judgment on October 8, 2016. In his motion, he asserted that the statute of limitations barred Appellants' suit because they had not exercised diligence in serving him. To meet his summary-judgment burden, Vasquez requested the trial court to take judicial notice of the pleadings in the court's file showing (1) the car accident occurred on March 5, 2014; (2) Appellants filed suit on March 2, 2016; and (3) he was not served until August 1, 2016, five months after suit was filed and after limitations had run.

         Appellants filed a response to the motion for summary judgment. As summary-judgment evidence, they offered Berry's Declaration of Not Found, detailing his four unsuccessful attempts to serve Vasquez. Appellants also offered the affidavit of their attorney, Cruz, in which she reiterated the information about Berry's four unsuccessful service attempts between March 5 and March 10, and she also stated as follows:

[O]n March 11, 2016, I contacted the company Professional Civil Process Servers to discuss this matter and provided them with Martin Vasquez's date of birth and driver's license number.
Between March, April and May, I discussed with [Professional] Civil Process Servers to confirm whether or not we had the correct address for Defendant. The address was confirmed to be the same address used for all previous attempts. ...

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