                                                                                 ACCEPTED
                                                                             01-15-00963-CV
                                                                  FIRST COURT OF APPEALS
                                                                          HOUSTON, TEXAS
                                                                       12/24/2015 9:49:08 AM
                                                                       CHRISTOPHER PRINE
                                                                                      CLERK

               IN THE FIRST COURT OF APPEAL

                     STATE OF TEXAS                          FILED IN
                                                      1st COURT OF APPEALS
                                                          HOUSTON, TEXAS
                                                     12/28/2015 10:06:00 AM
                                                      CHRISTOPHER A. PRINE
                      NO.: 01-15-00963                        Clerk




                  JUAN SOTO PEREZ, ET AL.

                         VERSUS

              JARED EFURD AND JAMES EFURD



APPLICATION TO THE FIRST COURT OF APPEAL FOR REVIEW FROM
THE SIXTY FIRST JUDICIAL DISTRICT COURT FOR THE COUNTY OF
           HARRIS, STATE OF TEXAS, NO: 2014-19704,
        THE HONORABLE ERIN LUNCEFORD, PRESIDING


ORIGINAL BRIEF FILED ON BEHALF OF THE APPELLANTS JUAN SOTO
                        PEREZ, ET AL.


                           Respectfully submitted:

                           H.L. HARPER & ASSOCIATES, L.L.C.
                           VESTA T. ARMSTRONG
                           Texas State Bar No. 00798240
                           1631 Elysian Fields Avenue
                           New Orleans, Louisiana 70117
                           (855) 880-4673 Office
                           (504) 322-3807 Facsimile
                           varmstrong@hlharperandassociates.com
                        Identity of Parties and Counsel

Appellants:

      Juan Soto Perez, Jose Ulloa-Siallos, Keyri Menjivar, Individually and as
      next friend of Kendric Menjivar

Trial and Appellate Counsel:

     H.L. HARPER & ASSOCIATES, L.L.C.
     Vesta T. Armstrong, Esq.
     1631 Elysian Fields Avenue
     New Orleans, Louisiana 70117

      and

     EDWIN M. SHORTY, JR. & ASSOCIATES, APLC
     Edwin M. Shorty, Jr., Esq., Pro Hac Vice
     650 Poydras Street, Suite 2515
     New Orleans, Louisiana 70130

Appellees:

      Jared Efurd and James Efurd

Trial and Appellate Counsel:

      KANE, RUSSELL, COLEMAN & LOGAN, PC
      Zach T. Mayer, Esq.
      William R. Jones, Esq.
      1601 Elm Street, Suite 3700
      Dallas, Texas 75201




                                        1
                     Table of Contents

Index of Authorities………………………………………………………………….

Statement of the Case………………………………………………………...……...

Issues Presented……………………………………………………………………..

Statement of the Facts……………………………………………………………….

Summary of the Argument…………………………………………………………..

Argument…………………………………………………………………………....

Prayer………………………………………………………………………………..

Appendix…………………………………………………………………………….

Certificate of Compliance – Word Count……………………………………………




                            2
                                                Index of Authorities

BP Auto., L.P. v. RML Waxahachie Dodge, L.L.C. NO. 01-12-00085-CV (Tex.

App., 9/18/14)………………………………………………………………………..

Eichel v. Ulla, 831 S.W.2d 42, 44 (Tex. App.—El Paso 1992, no writ)…………….

Evans Am. Corp. v. Munter’s Moisture Control, No. 01-92-01046-CV, 1993 WL

518607, (Tex. App.—Houston [1st Dist.] December 16, 1993, no writ) (not

designated for publication)…………………………………………………………..

Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990)…………………………………

Gundermann v. Buehring, No. 13-05-278-CV (TX 2/2/2006) (TX, 2006)………….

Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004)…………..

Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984)…………………….

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985)………………….

Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007)………………………………….

Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex.

2003).........................................................................................................................

Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995)………….

Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991)……………

Taylor v. Thompson, 4 S.W.3d 63, 64 (Tex. App.-Houston [1st Dist.] 1999, pet.

denied)……………………………………………………………………………….

Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 890 (Tex. 1975) (per curiam)…………


                                                               3
                              Statement of the Case

      This case involves a civil suit for personal injuries sustained in Harris

County, Texas. The plaintiffs filed suit for personal injuries on April 9, 2014 and

served the defendants with said suit on December 12, 2014. The matter proceeded

to discovery between the parties. The defendants filed a Motion for Summary

Judgment based on the affirmative defense of statute of limitations on September

17, 2015 which the trial court granted on October 16, 2015. The appellants now

appeal from said judgment.

                                Issue(s) Presented

      Did the trial court commit reversible error as a matter of law when granting

the Defendants Motion for Summary Judgment based on the affirmative defense of

statute of limitations?

                                Statement of Facts

      Appellants are residents of New Orleans, Louisiana. They were involved in

an automobile accident on August 30, 2012, while in Houston, Texas. Specifically,

a vehicle occupied by appellants was rear ended by a vehicle being operated by

appellees while stopped at a red light at the intersection of 4700 Airline Drive,

Harris County, Texas. Appellants suffered multiple injuries as a result of the

collision. The appellees address at the time of the collision was 4111 US-80 E,

#306, Mesquite, Dallas County, Texas 75150. Appellants filed an original petition


                                        4
for damages on April 9, 2014. Issuance of citation was properly requested on the

same day. The clerk of court then issued the citations as requested on April 14,

2014. The appellees last known address that was listed in the citation was 4701

Preston Park Blvd., #1611, Plano, Collin County, Texas 75095. Appellants filed a

First Amended Original Petition and First Set of Discovery and requested issuance

of citation on July 28, 2014. The clerk of court issued the citations as requested on

August 1, 2014. The appellees correct address that was listed in the citation was

921 Glory Drive, Waxahachie, Ellis County, Texas 75165.

      Appellant’s process server, Gregory D. Harper, received the citation with

petition attached on or about September 18, 2014. He attempted to personally serve

appellees several times at 921 Glory Drive, Waxahachie, Texas 75165; namely on

September 18, 2014, September 20, 2014, September 23, 2014, and September 24,

2014, to no avail.

      Appellants subsequently filed a Motion for Alternative Service on October

29, 2014. The Court granted the motion on November 5, 2014. On December 12,

2014, Mr. Harper served appellees at 921 Glory Drive, Waxahachie, Texas 75165,

by attaching a copy of the Plaintiffs’ First Amended Original Petition and First Set

of Discovery by securely fastening the citation with pleadings and orders to the

front door of the aforementioned premises. The Return of Service Affidavit was

filed into the record on December 15, 2014.


                                         5
      Appellees filed an Original Answer to the petition on December 30, 2014. In

said answer, appellees asserted that the appellant’s claims were time barred by the

applicable statute of limitations as appellants failed to use the necessary diligence

in securing service of process on appellees after the limitation period expired.

      Since the filing of the appellees Original Answer, the parties have engaged

in discovery, including written discovery and the depositions of appellees in

Houston, Texas on July 23, 2015. Approximately eight and a half months after

filing the Original Answer and two months after appellees depositions, appellants

filed a Motion for Summary Judgment on September 17, 2015, solely based on an

alleged failure to use diligence in securing service of process on appellees after the

expiration of the statute of limitations.

                                Summary of Argument

      The trial court erred as a matter of law when it granted the appellees Motion

for Summary solely based on appellees allegations of the appellants’ failure to use

diligence in securing service of process on the appellees.




                                            6
                                     Argument

      The trial court ruled contrary to Texas law when finding the appellants were

not diligent in attempting to serve the appellees with service. This Honorable

Court stated in BP Auto., L.P. v. RML Waxahachie Dodge, L.L.C. NO. 01-12-

00085-CV (Tex. App., 9/18/14):

      We review the trial courts summary judgments de novo. Joe v. Two Thirty
      Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004).
      …
      Under the "traditional" summary-judgment standard, a summary judgment
      should be granted only when the movant establishes that there is no genuine
      issue as to any material fact and that it is entitled to judgment as a matter of
      law. See TEX. R. CIV. P. 166a(c); Provident Life & Accident Ins. Co. v.
      Knott, 128 S.W.3d 211, 215-16 (Tex. 2003).

      In the case at bar, the appellees have failed to demonstrate that the appellants

were not diligent at serving them with the petition. The allegations made in the

summary judgment motion regarding the lack of timely service on the appellees

are not consistent with Texas law and principles of equity. The appellants made

consistent efforts to serve the appellees, trying to locate and serve them after

several changes of address were lodged by the appellees.

      The Court of Appeals of Texas, Thirteenth District, Corpus Christi stated in

Gundermann v. Buehring, No. 13-05-278-CV (TX 2/2/2006) (TX, 2006) that:

      To obtain a traditional summary judgment, a party moving for summary
      judgment must show that no genuine issue of material fact exists and that the
      party is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c);
      Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995);
      Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In
                                          7
         reviewing the grant of a summary judgment, we must indulge every
         reasonable inference and resolve any doubts in favor of the non-movant.
         Johnson, 891 S.W.2d at 644; Nixon, 690 S.W.2d at 549. In addition, we must
         assume all evidence favorable to the non-movant is true. Johnson, 891
         S.W.2d at 644; Nixon, 690 S.W.2d at 548-49. Statute of limitations is an
         affirmative defense. Tex. R. Civ. P. 4. A properly pleaded affirmative
         defense, supported by uncontroverted summary judgment evidence, may
         serve as the basis for summary judgment. Roark v. Stallworth Oil & Gas,
         Inc., 813 S.W.2d 492, 494 (Tex. 1991); Gant v. DeLeon, 786 S.W.2d 259,
         260 (Tex. 1990); Taylor v. Thompson, 4 S.W.3d 63, 64 (Tex. App.-Houston
         [1st Dist.] 1999, pet. denied). When a defendant moves for summary
         judgment on an affirmative defense, he must conclusively prove all the
         essential elements of the defense as a matter of law, leaving no issues of
         material fact. Gant, 786 S.W.2d at 260; Montgomery v. Kennedy, 669
         S.W.2d 309, 310-11 (Tex. 1984); Taylor, 4 S.W.3d at 65.
         (Emphasis added).

         To comply with the statute of limitations, a plaintiff must file suit within the

applicable limitations period and use diligence to serve the defendant with

process.1 If service is diligently effected after limitations has expired, the date of

service will relate back to the date of filing.2 Due diligence depends on: (1)

whether plaintiffs acted as ordinary prudent persons would act under the same

circumstances; and (2) whether plaintiffs acted diligently up until the time

defendant was actually served.3 Whether the plaintiff acted with due diligence is a

question of fact. 4 Only where the plaintiff offers no valid explanation for the delay

in service may the question of due diligence be answered as a matter of law.5
1 Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007).
2 Id.; accord Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990); Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 890 (Tex. 1975) (per
curiam).
3 Eichel v. Ulla, 831 S.W.2d 42, 44 (Tex. App.—El Paso 1992, no writ); accord Evans Am. Corp. v. Munter’s Moisture Control,

No. 01-92-01046-CV, 1993 WL 518607, (Tex. App.—Houston [1st Dist.] December 16, 1993, no writ) (not designated for
publication).
4 Eichel, 831 S.W.2d at 43.
5 Id. at 44.



                                                             8
      In the present case, appellants exercised due diligence in attempting to serve

appellees by immediately having the citation issued with the last known address of

the appellees. The appellants made numerous attempts to serve the appellees at

their last known address. When the appellants discovered the correct address for

the appellees, appellants immediately amended the Petition and immediately had

the citation and petition reissued with the correct address. Upon receipt of the

reissued citation, appellants contacted the process server and once again attempted

service on the appellees (see attached Exhibit B in Appendix). When personal

service was not accomplished through the process server, appellees requested

substituted service in a timely fashion. Substituted service was accomplished and

appellees filed an answer. The issues and facts regarding the delay were relayed to

the trial court, which in violation of law, granted the appellees summary judgement

motion. The caselaw is clear that the trial court can do so only when the plaintiff

offers no valid explanation for the delay.     In the case at bar, the appellants

attempted to serve the appellees numerous times. The appellees attempted to ‘duck

service’ in this matter, moving to different addresses throughout the state. The

appellants claims cannot be dismissed solely because the appellees were ‘ducking

service’, especially while the appellants were consistently attempting to locate and

serve the appellees. The trial courts judgment runs contrary to Texas law and

notions of equity.


                                         9
      Courts have consistently found that the amount of diligence that must be

used is “that diligence that an ordinary person would have used under the same

circumstances.” The trial court determined that the appellants had not been prudent

in attempting service on the appellees. This court must thusly determine what is

prudent in this situation. Again, the appellants attempted to serve the appellee

driver at his home shortly after filing the amended petition. Shortly after the

process server was unable to effectuate service, counsel for the appellants filed a

motion for alternative service thereby attempting to continue to prosecute this

matter. It is clear that counsel in this matter used due diligence to attempt to serve

the appellees. Counsel did not sit idly by and discontinue prosecuting the matter

by not continuing to attempt to achieve service.

      The pressing issue for this Court in this situation is the time of “unexplained

inactivity.” When no explanation is offered, the courts are left with the

presumption that the inactivity is due to a lack of diligence and/or carelessness on

the part of the plaintiffs. Here, there is a clear and consistent pattern of activity that

negates the argument that there is a pattern of inactivity espoused by the appellees

and agreed with by the trial court. Courts have consistently been hesitant to dismiss

cases where litigants were moving toward achieving proper service, even if that

movement may not have been as brisk as the court would have preferred in order to

preserve the rights of the plaintiffs.


                                           10
                                      Prayer

      In conclusion, appellants pray that this Honorable Court reverse the trial

court's judgment in whole, denying the motion for summary judgment and reinstate

claims of the plaintiffs, pursuant to Rule 43.2.(c) of the Texas Rules of Appellate

Procedure.     Appellants further pray that appellees bear all cost of these

proceedings.




                                        11
Respectfully submitted:

H.L. HARPER & ASSOCIATES, L.L.C.

/s/ Vesta T. Armstrong
____________________________________
VESTA T. ARMSTRONG
Texas State Bar No. 00798240
1631 Elysian Fields Avenue
New Orleans, Louisiana 70117
(855) 880-4673 Office
(504) 322-3807 Facsimile
varmstrong@hlharperandassociates.com

and

EDWIN M. SHORTY, JR. & ASSOCIATES
A PROFESSIONAL LAW CORPORATION

/s/ Edwin M. Shorty, Jr.

EDWIN M. SHORTY, JR., Pro Hac Vice
Louisiana State Bar No. 28421
650 Poydras Street, Suite 2515
New Orleans, Louisiana 70130
(504) 207-1370 Office
(504) 207-0850 Facsimile
eshorty@eshortylawoffice.com

Counsel for Appellants




        12
                             Appendix

Exhibit A   Trial Court Judgment                  10/16/2015

Exhibit B   Affidavit of Special Process Server   12/12/2014




                                 13
            Certificate of Compliance – Word Count

1.   This brief complies with the type-volume limitations of Rule 9.4(i)(3)

     of the Texas Rules of Appellate Procedure because this brief contains

     2,428 words, excluding the parts of the brief exempted by Rule

     9.4(i)(1).

2.   This brief complies with the typeface requirements of Rule 9.4(e) of

     the Texas Rules of Appellate Procedure because this brief has been

     prepared in a proportionally spaced in font size 14.



                        H.L. HARPER & ASSOCIATES, L.L.C.

                        /s/ Vesta T. Armstrong
                        ____________________________________
                        VESTA T. ARMSTRONG
                        Texas State Bar No. 00798240
                        1631 Elysian Fields Avenue
                        New Orleans, Louisiana 70117
                        (855) 880-4673 Office
                        (504) 322-3807 Facsimile
                        varmstrong@hlharperandassociates.com




                                 14
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                                                                                           10/29/20142:05:48PM
                                                                                           ChrisDaniel-DistrictClerk
                                                                                           HarrisCounty
                                 CAUSE #201419704                                          EnvelopeNo:2996400
                                                                                           By:SONNIER,ARRONW
                            AFFIDAVIT FOR TRCP RULE 106

STATE OF TEXAS

COUNTY OF HARRIS

   Before me, the undersigned authority, on this day personally appeared to me, who,
being by me duly sworn upon his oath, deposed and stated as follows:
   My name is GREGORY D. HARPER. I am over the age of 18 years, a citizen of the
United States of America and have never been declared incompetent for any purpose. I




                                                                                         k
                                                                                      ler
have personal knowledge that the facts set forth in this affidavit are true and correct.
   I am authorized by written order to serve citations and notices in all Harris District




                                                                                   tC
and Coimty Courts.




                                                                               ric
          On the       of September 20141 was assigned process in the above referenced
       cause styled Juan Soto vs.Jared Efiird I was instructed to attempt service upon




                                                                            ist
       defendant at 921 Glory Drive Waxahachie,texas 75165 This is in Ellis County,




                                                                        lD
       which I have determined to be his Abode. I have made the following attempts to
       serve process to no avail:




                                                                   nie
DATE AND TIME
09/18/14          7;00pm                                      Da
                                             REASON FOR NOT SERVING
                               Knock on Respondent door no answer attached my card to hisfrontdoor.
                                                          is
09/20/14          9:30 am      Respondent not in per adult female
09/23/14          8:30pm       Respondent not in per his mother
                                                        hr

09/24/14          5:30pm       Respondent not in per adult female who was not his mother
                                                   C



 " I have made diligent efforts to obtain personal service upon the named person at the above locations. I
                                                of




have made these attempts at various hours of the day. I have left my business card, but to date have heard
                                             e




nothing from this person. Based on the foregoing, I conclude that I will be unable to obtain good service
without an order directing me to serve anyone over the age of sixteen (16) years or directing me to firmly
                                        ffic




attach the process to the main entrance at the above location. Either of which means being reasonably
effective based on the circumstances I encountered to give said persons notice of the above referenced
                                     O




action."
                                                                 ^
                                  y




    Further affiant sayeth not.                      ^                        , » ro,/ i
                               op




                                                                                          'FIANT SC#576
                            C




Exp-08/31/2017
                       ial




My name is Gregory Harper my date of birth is 07/13/1951, and my address is 7510 Holly Hill Dr.
                    fic




Unit 127 Dallas,Texas 752311 declare under penalty of perjury that the foregoing is true and correct
              of
            Un




Executed in Dallas Coupty, State of Texas         24*     Day of September 2014
