                           NUMBER 13-16-00150-CV

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

ZULEIKA DRAGUSTINOVIS AND
ROSEMBRANDT GONZALEZ                                                   Appellants,

                                         v.

CENTROPLEX AUTOMOBILE
RECOVERY, INC., JOHN THOMPSON,
AND TREVOR LOVETT,                                                     Appellees.


              On appeal from the County Court at Law No. 2
                      of Cameron County, Texas.



                      MEMORANDUM OPINION
           Before Justices Benavides, Longoria, and Hinojosa
               Memorandum Opinion by Justice Longoria

      Appellants Zuleika Dragustinovis and Rosembrandt Gonzalez appeal the trial

court’s granting of appellees Centroplex Automobile Recovery, Inc. (Centroplex), John

Thompson, and Trevor Lovett’s traditional and no evidence motion for summary
judgment. By twelve issues which we have reorganized and renumbered as two with

several sub-issues, appellants argue that the trial court erred: (1) in granting appellees’

traditional motion for summary judgment on appellants’ (a) Deceptive Trade Practices Act

(DTPA) claims, (b) claims determined to be time barred, and (c) claims determined to

have no casual connection between appellees’ conduct and appellants’ injuries; and (2)

in granting appellees’ traditional and no-evidence motions on (a) appellants’ breach of

warranty claims, (b) constructive fraud claims, (c) breach of fiduciary duty claims, (d)

breach of peace claims that derived from the UCC, and (e) breach of contract claims. We

affirm.

                                        I.      BACKGROUND

          Appellants’ car was repossessed by Ford Motor Credit Company 1 (Ford) on June

26, 2009. Centroplex was hired by Ford for its repossession services. On October 3,

2011, appellants filed their first petition with claims of violation of the Texas Deceptive

Trade Practices Act (DTPA) and common law fraud, naming Ford and Centroplex as

defendants; Thompson and Lovett were not named as defendants. In October of 2011,

appellants unsuccessfully attempted service on Centroplex twice by mail to the same

address. Appellants then amended their petition on July 31, 2012, naming the same

defendants and including additional claims for violation of the Texas Debt Collection Act

(TDCA), violation of the Uniform Commercial Code (UCC), invasion of privacy, conversion

of personal property, breach of contract, trespass, assault, intentional infliction of

emotional distress and unreasonable collection efforts. Again, appellants unsuccessfully




          1Priorto this appeal, defendant Ford Motor Credit Company settled with appellants and is not a
party to this appeal.

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attempted service on Centroplex. Centroplex was subsequently served by Ford on May

29, 2013, after Ford brought Centroplex into the suit as a third-party defendant.

       Each of the appellees filed their answer and affirmative defenses to Ford’s third-

party petition. On February 4, 2014, appellees jointly moved for summary judgment

raising the defense of limitations, which was partially granted in an order from the trial

court on April 17, 2014. The order granted summary judgment in favor of appellees on

appellants’ claims “for invasion of privacy, intentional infliction of emotional distress,

breach of peace, conversion of personal property, trespass, assault and unreasonable

collection efforts.” By agreement of the parties, the order also granted appellants the right

to “replead to specifically state the facts giving rise to their DTPA, Debt Collection Act and

fraud claims . . . by April 21, 2014.” On July 9, 2014, more than two months after the trial

court’s imposed deadline, appellants filed their “First Supplement to Plaintiffs’ First

Amended Original Petition in Response to Order Granting Third Party Defendants’ Motion

for Summary Judgment,” which added Thompson and Lovett as defendants for the first

time and included an additional claim for breach of fiduciary duty. Appellees filed an

amended traditional and no-evidence motion for summary judgment, again raising the

affirmative defense of limitations. The trial court granted the appellees’ motion as to all

claims. This appeal followed.

                          II.    MOTION FOR SUMMARY JUDGMENT

       Appellants contend the trial court erred by granting appellees’ traditional and no-

evidence motion for summary judgment. In appellants’ first issue as we have construed

it, they argue that the trial court erred in granting appellees’ traditional motion for summary

judgment on their DTPA claims, claims determined to be time barred, and claims



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determined to have no casual connection between appellees’ conduct and appellants’

injuries. In their second issue, appellants contend that the trial court erred in granting

appellees’ traditional and no-evidence motion for summary judgment on appellants’

breach of warranty claims, constructive fraud claims, breach of fiduciary duty claims,

breach of peace claims that derived from the UCC, and breach of contract claims.

Appellees argue that all the claims raised by appellants are barred by limitations.

A.    Standard of Review

      We review summary judgments de novo. Joe v. Two Thirty Nine Joint Venture,

145 S.W.3d 150, 156 (Tex. 2004).        We take as true all evidence favorable to the

nonmovant and indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor. Id. at 157. In reviewing a traditional motion for summary judgment,

the movant has the burden of showing there is no genuine issue of material fact and it is

entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Joe, 145 S.W.3d at 157.

When, as here, a defendant moves for traditional summary judgment on an affirmative

defense, the defendant must conclusively establish each essential element of that

affirmative defense. See TEX. R. CIV. P. 166a(c); Mitchell v. Methodist Hosp., 376 S.W.3d

833, 835 (Tex. App—Houston [1st Dist.] 2012, pet. denied). We affirm the summary

judgment if any of the theories presented to the trial court and preserved for appellate

review are meritorious. Joe, 145 S.W.3d at 157.

      It is an affirmative defense that a statute of limitations bars a claim. TEX. R. CIV. P.

94. Accordingly, appellees bore the burden of establishing as a matter of law that

appellants’ claims were time-barred. See Mitchell, 376 S.W.3d at 835.

B.    Applicable Law



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       Appellees argue that appellants’ claims are all time barred because appellants did

not serve appellees within the statute of limitations. If a plaintiff files suit before limitations,

but effects service after limitations, the date of service relates back to the date of filing if

the plaintiff exercised diligence in effecting service. Brown v. Shores, 77 S.W.3d 884,

887 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (citing Gant v. DeLeon, 786 S.W.2d

259, 260 (Tex.1990) (per curiam)). To obtain summary judgment on the grounds an

action was not served within the applicable limitations period, the movant must show that,

as a matter of law, diligence was not used to effectuate service. DeLeon, 786 S.W.2d at

260. Lack of diligence may be shown as a matter of law based on unexplained lapses of

time between the filing of the petition and service on the defendant. Id. Thus, when a

defendant has affirmatively pleaded the defense of limitations and has shown, with

summary judgment proof, that plaintiff failed to timely serve the defendant, the burden

shifts to the plaintiff to explain the delay. Murray v. San Jacinto Agency, Inc., 800 S.W.2d

826, 830 (Tex. 1990). Plaintiff’s claim will be barred in the absence of some evidence

explaining the delay in service of citation. See id.

C.     Analysis

       There is no dispute that the incident made the basis of appellants’ suit occurred on

June 26, 2009, approximately thirty-two months prior to the filing of the original petition

on October 3, 2011. In the order on the appellees’ motion for summary judgment, the

trial court dismissed appellants’ claims for: violation of the DTPA, breach of warranty,

fraud, breach of fiduciary duty, violation of the TDCA, breach of peace/UCC violations,

and breach of contract. Appellants’ claims under the DTPA, breach of warranty, and

breach of peace/UCC ran under the two-year statute of limitations on June 26, 2011. See



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TEX. BUS. & COM. CODE ANN. §§ 17.565, 16.003 (West, Westlaw through 2017 1st C.S.).

Appellants’ claims for fraud, breach of fiduciary duty, violations of the TDCA, and breach

of contract ran under the four-year statute of limitations on June 26, 2013. See TEX. CIV.

PRAC. & REM. CODE ANN. §§ 16.004, 16.051 (West, Westlaw 2017 through 1st C.S.).

       Appellees’ summary judgment proof reflects that appellants twice attempted

service on Centroplex in October 2011, to the same address each time; both attempts

were unsuccessful. Appellants next attempted service on Centroplex in October 2012

and November 2012. The record reflects that appellants also attempted service on

Centroplex in April 2013. Appellants were not successful in any of their attempts at

service. Appellants never attempted service on Lovett or Thompson.

       1.     Due Diligence

       Whether the plaintiff was diligent in effecting service is normally a question of fact,

but if no excuse is offered for a delay or if the lapse of time and the plaintiff’s acts are

such as conclusively negate diligence, lack of diligence will be found as a matter of law.

McCord v. Dodds, 69 S.W.3d 230, 233 (Tex. App.—Corpus Christi 2001, pet. denied).

According to the Texas Supreme Court, the plaintiff must not only file his petition but also

exercise reasonable diligence in perfecting service. One 1991 Chevrolet Blazer, Vin No.

1GNDT13Z4M2302305 v. State, 905 S.W.2d 443, 444 (Tex. App.—Amarillo 1995, no

writ) (citing Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180, 182 (Tex.1970); Reed v. Reed,

158 Tex. 298, 311 S.W.2d 628, 631 (1958)). Appellants argue that their five attempts

over the course of eighteen months show due diligence in attempting to serve appellees.

However, appellants do not point to having ever perfected service on appellees, nor do

we find anything in the record indicating appellees were ever served by appellants.



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Ultimately, appellees were brought into the suit and served as third-party defendants by

third-party plaintiff Ford on May 29, 2013. The return of service indicates that appellees

were served with “Citation with Third Party Petition” by “Royston Rayzor,” attorneys for

Ford; it does not indicate appellees received the original or any amended petitions filed

by appellants.

        Appellants argue that they were diligent in their attempts to serve appellees.

Appellants note that prior to the initial service attempt, they downloaded the information

for Centroplex as contained on the website of the Office of the Texas Secretary of State.

Using this information, they attempted service on Centroplex twice in October 2011.

However, even after amending their petition in July 2012, it was not until October 2012

that appellants next attempted to serve Centroplex, again unsuccessfully. Appellants did

not perfect service, but rather Ford served Centroplex with its third-party petition in May

2013.    Appellants offer no reasoning to explain the lack of service on appellees.

Moreover, “several Texas courts have held that delays of more than a few months negate

due diligence as a matter of law.” Belleza–Gonzalez v. Villa, 57 S.W.3d 8, 11–12 (Tex.

App.—Houston [14th Dist.] 2001, no pet.) (citing Weaver v. E–Z Mart Stores, Inc., 942

S.W.2d 167, 168 (Tex. App.—Texarkana 1997, no writ)) (nine months); Gonzalez v.

Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 590 (Tex. App.—Corpus Christi 1994, no

writ) (five months); Butler v. Ross, 836 S.W.2d 833, 835–36 (Tex. App.—Houston [1st

Dist.] 1992, no writ) (five months); Allen v. Bentley Labs., Inc., 538 S.W.2d 857, 860 (Tex.

Civ. App.—San Antonio 1976, writ ref’d n.r.e.) (six months)). Accordingly, we conclude

that appellants’ inaction for twelve months and lack of effort to procure service over the




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next six months conclusively negates diligence as a matter of law. Sharp v. Kroger Texas

L.P., 500 S.W.3d 117, 121 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

       2.     Waiver of Service

       Appellants argue that appellees waived the service requirement when they entered

a general appearance. Appellee Lovett made his first appearance in the suit by filing his

“Original Answer and Affirmative Defenses to Defendant Ford Motor Credit Company,

LLC’s Third Party Petition” on June 21, 2013. Appellees Centroplex and Thompson made

first appearances in the suit by filing their “Original Answer and Affirmative Defenses to

Defendant Ford Motor Credit Company, LLC’s Third Party Petition” on July 19, 2013. All

appellees included the affirmative defense of limitations against plaintiffs’ claims.

       A party’s general appearance in a suit does not waive service of process when the

appearance occurs after the limitations period has run and the plaintiff has not used due

diligence in serving the party. Seagraves v. City of McKinney, 45 S.W.3d 779, 783 (Tex.

App.—Dallas 2001, no pet.); Taylor v. Thompson, 4 S.W.3d 63, 66 (Tex. App.—Houston

[1st Dist.] 1999, pet. denied). We have already determined that appellants did not present

any summary judgment evidence showing that they were diligent in serving appellees.

Accordingly, we hold that appellee’s answer to the third-party petitions filed after the

statute of limitations had expired did not waive the running of the statute of limitations as

to appellants. See Seagraves, 45 S.W.3d at 783; Taylor, 4 S.W.3d at 66.

       3.     Waiver of Limitations Defense

       Appellants argue that appellees waived their defense of limitations by joining in the

agreed “Order Granting Third Party Defendants’ Partial Motion for Summary Judgment”

which allowed appellants the opportunity to replead their DTPA and TDCA claims.



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However, in order to agree to waive or not to plead the statute of limitations, “the

agreement must be specific and for a pre-determined length of time.” See Duncan v.

Lisenby, 912 S.W.2d 857, 858 (Tex. App.—Houston [14th Dist.] 1995, no writ) (citing

American Alloy Steel, Inc. v. Armco, Inc., 777 S.W.2d 173, 177 (Tex. App.—Houston [14th

Dist.] 1989, no writ)). Here, the appellees maintained their limitations argument in each

of their motions for summary judgment. A general agreement to waive or not plead the

statute of limitations on a particular obligation is void as against public policy.      Id.

Appellants point to no specific waiver of appellees limitations defense, nor does the record

reflect any such waiver.

       As such, the trial court did not err in rendering summary judgment in favor of

appellees.   Appellants’ first and second issues, as we have renumbered them, are

overruled.

                                    4.     CONCLUSION

       The judgment of the trial court is affirmed.


                                                               NORA L. LONGORIA
                                                               Justice
Delivered and filed the
14th day of February, 2019.




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