AFFIRMED and Opinion Filed April 20, 2020




                                   S   In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                               No. 05-18-01241-CV

                           JON EVANS, Appellant
                                  V.
                         LAURA MARTINEZ, Appellee

                On Appeal from the County Court at Law No. 4
                            Dallas County, Texas
                    Trial Court Cause No. CC-15-04781-D

                        MEMORANDUM OPINION
                  Before Justices Schenck, Osborne, and Reichek
                           Opinion by Justice Osborne
      A jury found that appellant Jon Evans, the plaintiff in the trial court, did not

use due diligence in perfecting service of his lawsuit on appellee Laura Martinez. In

accordance with the jury’s finding, the trial court rendered judgment for Martinez.

Because there was legally and factually sufficient evidence to support the jury’s

finding, we affirm the trial court’s judgment.

                                   BACKGROUND

      Evans’s claims against Martinez arise from a vehicle collision on September

21, 2013. Evans filed suit on September 21, 2015, pleading that he was injured as a
result of Martinez’s negligence in rear-ending the car in which he was a passenger.

Service of process, however, was not made on Martinez until October 30, 2015, after

the two-year statute of limitations had run. The trial court subsequently granted

summary judgment for Evans on all issues except his diligence in perfecting service

on Martinez. The case proceeded to a jury trial on that issue.

      Carl Weinkauf, Evans’s attorney, was the only witness to testify at trial.

Weinkauf testified that he did not file suit until the last day of limitations because

Evans was still being treated for injuries he suffered in the collision. In his cover

letter to the county clerk submitting the petition for filing, Weinkauf explained that

he would be “serving the citation with our own process service.” He requested that

the clerk return the citation to him for that purpose.

      Although the county clerk issued the citation on September 23, 2015,

Martinez was not served with process until more than five weeks after the statute of

limitations had expired. Weinkauf explained the delay as follows:

           He had not received the citation from the clerk by October 2, 2015,
            when he left his office for a previously-planned and pre-paid vacation;

           Although the clerk sent the citation to Weinkauf on October 1, 2015,
            Weinkauf did not open the mail he received during his vacation until
            October 7, 2015;

           On October 7, he contacted Innovative Investigative Resources (“IIR”),
            a company he had regularly used to serve process, and left a message
            that he would leave the citation with his receptionist for pickup and
            service;

           He discovered on October 12 that IIR had not picked up the citation;

                                          –2–
           He learned on October 14 that IIR was no longer serving process;

           On October 14 he contacted another company, Forbes Confidential, and
            left the citation with his receptionist for pickup;

           On October 19, he discovered that the citation was still on the
            receptionist’s desk;

           He called Forbes Confidential on October 19 and was assured that the
            citation would be picked up and served;

           Later that week, the citation was no longer on the receptionist’s desk;

           He contacted Forbes Confidential on October 26 and was informed that
            the citation was out for service;

           He learned on November 2 that Martinez had been served on Friday,
            October 30; and

           The return of service was filed on November 3.

      On cross-examination, Weinkauf admitted that he did not provide for anyone

to open and review his mail during his vacation or to watch for the citation and

arrange for service in his absence. He confirmed that he only checked on the citation

once a week after his return. He confirmed that, having practiced law for more than

30 years, he was aware of the two-year statute of limitations for a negligence suit,

and was aware that he had filed Evans’s suit on the last day of the limitations period.

He acknowledged that he did not offer any evidence to support his testimony that he

first called a process server on October 7. He further acknowledged that he had no

supporting evidence such as telephone records, notes, or witness testimony other

than his own about his efforts to obtain service. He also conceded that the process

server’s return of service, providing that the citation “came to hand” on October 27,

                                         –3–
was inconsistent with his testimony that the citation had been picked up the week of

October 19 and was out for service on October 26.

      The jury answered “no” to the question whether Evans used due diligence in

perfecting service of his lawsuit on Martinez. The trial court rendered judgment on

the jury’s verdict, and this appeal followed. In a single issue, Evans contends that

the evidence is legally and factually insufficient to support the jury’s finding.

                                     DISCUSSION

      Evans bore the burden to establish his diligence in serving process. See

Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990) (when

defendant affirmatively pleads limitations defense and shows failure to timely serve

process, burden shifts to plaintiff to explain delay). Consequently, we may reverse

the jury’s finding for legal insufficiency only if the contrary proposition is

established as a matter of law. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.

2001). We may set aside the jury’s finding for factual insufficiency only if Evans

demonstrates that the finding is against the great weight and preponderance of the

evidence. See id. at 242. We must consider and weigh all of the evidence, and can

set aside a verdict only if the evidence is so weak or if the finding is so against the

great weight and preponderance of the evidence that it is clearly wrong and

unjust. Id. The jury is the sole judge of the credibility of the witnesses and evidence.

City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).



                                          –4–
      A personal injury lawsuit is governed by a two-year statute of limitations.

TEX. CIV. PRAC. & REM. CODE § 16.003(a). Filing suit will not toll the running of

limitations unless the plaintiff exercises due diligence in the issuance and service of

citation. Murray, 800 S.W.2d at 830; Mauricio v. Castro, 287 S.W.3d 476, 479 (Tex.

App.—Dallas 2009, no pet.). The duty to exercise diligence continues until service

of process is achieved. Mauricio, 287 S.W.3d at 479. “Texas courts have

consistently held that lack of diligence may be shown based on unexplained lapses

of time between the filing of the suit, issuance of the citation, and service of process.”

Id. The relevant inquiry is 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. Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007)

(per curiam).

      Here, the return of service recites that the process server first came into

possession of the citation on October 27, 2015, more than a month after limitations

expired. Although Weinkauf offered some evidence regarding the delay, he did not

explain why, when he knew he had filed suit on the last day of limitations and that

he would shortly leave on vacation, he did not make an alternative arrangement to

ensure that the effort to serve Martinez would begin in his absence. On his return,

he left the citation sitting at his reception desk and checked on it only once a week

even after problems arose with his arrangements for service. There is no evidence to

support his testimony of the efforts he made, such as phone records, notes, emails,
                                          –5–
or testimony from support staff or process servers. The jury was the sole judge of

Weinkauf’s credibility on these matters. See City of Keller, 168 S.W.3d at 819.

      As the parties acknowledge, most cases addressing the exercise of due

diligence are not appeals of jury verdicts. See, e.g., Murray, 800 S.W.2d at 827

(limitations issue determined by summary judgment); Perry v. Kroger Stores, Store

No. 119, 741 S.W.2d 533, 535 (Tex. App.—Dallas 1987, no writ) (op. on reh’g)

(same). The issue presented here—whether there was legally and factually sufficient

evidence to support the jury’s finding that Evans did not use due diligence in serving

Martinez—differs from appeals of summary judgments in which the plaintiff was

required only to raise a genuine issue of material fact regarding due diligence. Cf.

Herrera v. Price, No. 05-18-00030-CV, 2019 WL 580846, at *3–4 (Tex. App.—

Dallas Feb. 13, 2019, no pet.) (mem. op.) (plaintiff failed to raise fact issue on

diligence).

      Both parties cite Zimmerman v. Massoni, 32 S.W.3d 254, 256 (Tex. App.—

Austin 2000, pet. denied), as one of the few cases reviewing a jury’s finding that the

plaintiff did not use due diligence in perfecting service. In Zimmerman, the trial court

rendered judgment for the defendant based on the jury’s finding, and the court of

appeals affirmed. Id. at 255–59. Evans distinguishes Zimmerman, arguing that the

delays at issue in that case were longer and unexplained, while Martinez cites the

appellate court’s conclusion that the jury’s verdict was not so against the great



                                          –6–
weight and preponderance of the evidence as to be manifestly unjust. See generally

id. at 256–59.

      Evans argues he was diligent in requesting citation at the time he filed suit and

clearly explained all delays. He argues that because he offered an explanation for all

delays, the jury’s finding that he did not use due diligence is against the great weight

and preponderance of the evidence. But as we have discussed, there was also

evidence, through Weinkauf’s own testimony, of lapses in his efforts to secure

service. Among other problems, he did not make any arrangements for service to be

initiated in his absence. In Zimmerman, the court cited the attorney’s failure to

explain why no other attorney or employee could have searched for the defendant’s

address while she was in trial as evidence to support the jury’s failure to find that the

attorney exercised reasonable diligence. See id. at 258. And as in Zimmerman, the

jury could have concluded that a reasonable person in Weinkauf’s position would

have acted “much sooner,” see id. at 258–59, not leaving the citation at the

receptionist’s desk for a week at a time without determining why service was not

underway. We conclude that Evans did not establish as a matter of law his reasonable

diligence in effecting service of citation after filing suit, and that the jury’s verdict

is not against the great weight and preponderance of the evidence so as to be clearly

wrong and manifestly unjust. See Dow Chem. Co., 46 S.W.3d at 242. We decide

Evans’s issue against him.



                                          –7–
                                 CONCLUSION

     We affirm the trial court’s judgment.




                                         /Leslie Osborne/
                                         LESLIE OSBORNE
                                         JUSTICE


181241F.P05




                                      –8–
                                    S
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                   JUDGMENT

JON EVANS, Appellant                           On Appeal from the County Court at
                                               Law No. 4, Dallas County, Texas
No. 05-18-01241-CV           V.                Trial Court Cause No. CC-15-04781-
                                               D.
LAURA MARTINEZ, Appellee                       Opinion delivered by Justice
                                               Osborne; Justices Schenck and
                                               Reichek participating.

       In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.

      It is ORDERED that appellee Laura Martinez recover her costs of this appeal
from appellant Jon Evans.


Judgment entered April 20, 2020.




                                         –9–
