                                                                     ACCEPTED
                                                                 03-14-00795-CV
                                                                         6167020
                                                      THIRD COURT OF APPEALS
                                                                 AUSTIN, TEXAS
                                                           7/21/2015 11:29:56 PM
                                                               JEFFREY D. KYLE
                                                                          CLERK
            NO. 03-14-00795-CV

                                                FILED IN
                                         3rd COURT OF APPEALS
               IN THE                         AUSTIN, TEXAS
       THIRD COURT OF APPEALS            7/21/2015 11:29:56 PM
                                             JEFFREY D. KYLE
                AT AUSTIN                         Clerk




             Jennifer Samaniego
                 Appellant

                     v.

               Alieda Silguero
                  Appellee


On Appeal from the County Court at Law No. 2,
            Travis County, Texas


           BRIEF OF APPELLEE



                      NADIA RAMKISOON
                      State Bar No. 24076635
                      e-mail:
                      nadia.ramkissoon@famersinsurance.com

                      CLARK, TREVINO & ASSOCIATES
                      1701 Directors Blvd. Ste. 920
                      Austin, Texas 78744
                      (512) 445-1591
                      (512) 383-0503 (Facsimile)

                      ATTORNEY        FOR       APPELLEE
                                          TABLE OF CONTENTS


INDEX OF AUTHORITIES.......................................................................................i

STATEMENT OF THE CASE .................................................................................. 2

ISSUE PRESENTED ................................................................................................. 2

         The trial court did not err when granting Appellee Alieda
         Silguero’s motion for summary judgment. Appellant has failed to
         sustain her burden of proof regarding the delay in serving
         Appellee Alieda Silguero and lack due diligence was established as
         a matter of law.

STATEMENT OF FACTS ........................................................................................ 2

SUMMARY OF THE ARGUMENT ........................................................................ 3

ARGUMENT AND AUTHORITIES ........................................................................ 4

CONCLUSION .......................................................................................................... 6

PRAYER .................................................................................................................... 6

CERTIFICATE OF COMPLIANCE ......................................................................... 7

CERTIFICATE OF SERVICE .................................................................................. 7
                                         INDEX OF AUTHORITIES
CASES

First Gen. Realty Corp. v. Maryland Caus. Co, 981 S.W.2d 465 (Tex. App—
Austin 1998, pet. denied) ........................................................................................... 6

Sanchez v. Providence Memorial Hospital; 679 S.W.2d 732, 732-733 (Tex. App.—
El Paso 1984, no writ) ................................................................................................ 6

Dura-Stitlts Com. v. Zachry, 697 S.W.2d 658, 659, (Tex. App.—Houston [1st
Dist.]1985, writ refused, n.r.e) .................................................................................. 6

Carter v. MacFadyen, 93 S.W.3d 307 (Tex. App.—Houston [14th Dist.] 2002, pet.
denied) .................................................................................................................... 7, 8

Parson v. Turley, 109 S.W.3d 804, 808-809 (Tex. App.—Dallas, 2003, no pet.) .... 7

Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826 (Tex.1990) ............................ 7

Zacharie v. U.S. Nat. Resources, Inc., 94 S.W.3d 748 (Tex. App.—San Antonio
2002, no pet.) ......................................................................................................... 7, 8

Instrument Specialties Co. v. Texas Employment Comm'n, 924 S.W.3d 420 (Tex.
App.—Fort Worth 1996, pet. denied) ........................................................................ 7

Rodriguez v. Tinsman & Houser, 13 S.W.3d 47, 49-52 (Tex. App.--San Antonio
1999, pet. denied) ....................................................................................................... 8

Broom v. McMaster, 992 S.W.2d 659 (Tex. App.—Dallas 1999, no pet.) ............... 8

McGuire v. Federal Dep. Ins. Corp., 561 S.W.2d 213 (Tex. Civ. App.—Houston
[1st dist.] 1997, no writ).............................................................................................. 8

Holt v. D’Hanis State Bank, 993 S.W.2d 237 (Tex. App—San Antonio 1999, no
pet.) ......................................................................................................................... 8

Webster v. Thomas, 5 S.W.3d 287, 290-291 (Tex. App.—Houston, [14th Dist.] 199,
no pet.)........................................................................................................................ 8


                                                                i
Roberts v. Padre Island Brewing, Inc., 28 S.W.3d 618, 621 (Tex.App.—Corpus
Christi 2000, pet denied) ............................................................................................ 9

Gant v. De Leon, 786 S.W.2d 259 (Tex. 1990)(per curiam)................................... 12

STATUTES AND RULES

TEX. CIV. PRAC. & REM. CODE ANN. §16.003(A) VERNON 2003 ............................... 6




                                                           ii
                              NO. 03-14-00795-CV


                                IN THE
                        THIRD COURT OF APPEALS

                                  AT AUSTIN


                              Jennifer Samaniego
                                  Appellant

                                        v.

                                 Alieda Silguero
                                    Appellee


               On Appeal from the County Court at Law No. 2,
                           Travis County, Texas


                            BRIEF OF APPELLEE



TO THE HONORABLE COURT OF APPEALS:

      Alieda Silguero respectfully asks the Court to dismiss Appellant’s appeal for

due diligence and the judgment of the trial court that Appellant Jennifer Samaniego

take nothing on her claims and respectfully shows the following:
                         STATEMENT OF THE CASE

      Plaintiff/Appellant Jennifer Samaniego sued Defendant/Appellee Alieda

Silguero for personal injury damages allegedly arising from an automobile

accident that occurred on May 2, 2011. (CR 7) Appellee filed a Motion for

Summary Judgment on June 26, 2014 based on Appellant’s failure to exercise due

diligence in serving Appellee. (CR 33-37) Appellee’s Motion for Summary

Judgment was granted by the trial court on November 18, 2014. (CR 81)



                              ISSUE PRESENTED

      The trial court did not err when granting Appellee Alieda Silguero’s motion

for summary judgment. Appellant Jennifer Samiengo has failed to sustain her

burden of proof regarding the delay in serving Appellee Alieda Silguero and lack

due diligence was established as a matter of law.


                           STATEMENT OF FACTS

      The Appellant seeks damages allegedly arising from an automobile accident

occurring on May 2, 2011. (CR 7) The Appellant alleges that she was rear ended

by Appellee. (CR 7) Appellant alleges that her damages were proximately caused

by Appellee’s negligence. The original petition was filed on May 2, 2013. (CR 6,

34). The attorney for the Appellant at the time, Steve White, filed the lawsuit.

(CR6) A citation was issued for Appellee on May 2, 2013. (CR 50) Appellee
                                         2
received a letter dated October 1, 2013 from her attorney stating that he suffered a

stroke and that her case would be given to Thomas Crosley. (CR 66) Before

Appellant’s attorney suffered a stroke no attempts of substitute service were made

on Appellee. In April of 2014, Appellant hires Anthony Colton as her attorney.

(CR 85) An amended petition was filed by Appellant on April 23, 2014 which now

untimely included Paulino Silguero, III, Appellee’s father. (CR 19) He was joined

into the lawsuit almost a year after the statute of limitations had expired. A new

citation was issued for Appellee and her father on April 24, 2014. (CR 44) Service

of process was not accomplished until June 16, 2014 on Appellee. (CR 44) This

was over a year after the expiration of the statute of limitations.

      Appellee and her father filed their Answer on June 26, 2014 asserting a

general denial, affirmative defense of statute of limitations, and a motion for

summary judgment. (CR 33) Appellant filed a notice of nonsuit as to her claims

against Paulino Silguero, III on October, 10, 2014. (CR 71) Appellee’s Motion for

Summary Judgment was heard on October 17, 2014. (CR 70) On November 18,

2014, Appellee’s Motion for Summary Judgment was granted by the trial court.

(CR 81)

                       SUMMARY OF THE ARGUMENT

      Appellant filed suit on the last day before the statute of limitations tolled.

Appellant failed to exercise due diligence in serving Appellee with process.


                                           3
Appellee filed her answer raising due diligence as an issue and sought Summary

Judgment. Upon filing for Summary Judgment, the burden of proof shifted to

Appellant to explain the delay. Appellant failed to sustain the burden of proof by

asserting a reasonable explanation for the delay in service, and Appellants lack of

due diligence was established as a matter of law. Therefore this Court should

affirm the summary judgment in favor of Appellee.

                      ARGUMENT AND AUTHORITIES

   A. Due Diligence was not exercised by Appellant

      The Appellant had two years from the date of the accident to bring her

action against Appellee. The Texas Civil Practice and Remedies Code sets the

limitations period for tort claims based on negligence at two years. Tex. Civ. Prac.

& Rem Code Ann. §16.003(a) (Vernon 2003). In order for a suit to be timely filed

under a two year limitations period, it must be filed within two years of the date

when an alleged wrongful act causes a legal injury. First Gen. Realty Corp. v.

Maryland Cas. Co., 981 S.W.2d 465, 501 (Tex. App—Austin 1998, pet. denied).

      Mere filing of a lawsuit does not alone toll limitations; an action is timely

brought only when the Plaintiff both files a petition and exercises due diligence in

having the Defendant served. Sanchez v. Providence Memorial Hospital; 679

S.W.2d 732, 732-733 (Tex. App.—El Paso 1984, no writ); Dura-Stitlts Com. v.

Zachry, 697 S.W.2d 658, 659, (Tex. App.—Houston [1st Dist.] 1985, writ refused,


                                         4
n.r.e.). Due diligence is determined by looking at the time taken and the effort

expended by the plaintiff in securing service. Carter v. MacFadyen, 93 S.W.3d

307, 313 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). The test for due

diligence is whether a Plaintiff acted (1) as an ordinary prudent person would act

under the same circumstances and (2) was diligent up until the time the Defendant

was served. Parson v. Turley, 109 S.W.3d 804, 808-809 (Tex. App.—Dallas, 2003,

no pet.). Even a considerable amount of ineffective activity does not constitute due

diligence if easily available and more effective alternatives are ignored. Carter v.

MacFadyen, 93 S.W.3d 307, 314-315 (Tex. App.—Houston [14th Dist.] 2002, pet.

denied).

      When a defendant raises the defense of limitations and the failure to timely

serve the defendant, the burden shifts to the plaintiff to explain any delay. Murray

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

MacFadyen, 93 S.W.3d 307, 313 (Tex. App.—Houston [14th Dist.] 2002, pet.

denied). A lack of diligence may be found as a matter of law if no excuse is offered

for a delay or if the plaintiff's acts conclusively negate diligence. Zacharie v. U. S.

Nat. Resources, Inc., 94 S.W.3d 748, 754 (Tex. App.—San Antonio 2002, no pet.);

Instrument Specialties Co. v. Texas Employment Comm 'n, 924 S.W.3d 420, 422

(Tex. App.—Fort Worth 1996, pet. denied).




                                          5
      Further, merely offering an explanation does not necessarily raise a fact

issue precluding summary judgment; the explanation must be one that is

reasonable and valid. Rodriguez v. Tinsman & Houser, 13 S.W.3d 47, 49-52 (Tex.

App.—San Antonio 1999, pet. denied). The plaintiffs excuse must show a bona

fide intent that process be issued and served and must demonstrate how due

diligence was exercised in the issuance and service of citation. Broom v.

McMaster, 992 S.W.2d 659, 664 (Tex. App.—Dallas 1999, no pet.); McGuire v.

Federal Dep. Ins. Corp., 561 S.W.2d 213, 215- 216 (Tex. Civ. App.—Houston [1st

Dist.] 1977, no writ). Further, the evidence presented must explain every period of

delay. Carter v. MacFadyen, 93 S.W.3d 307, 313 (Tex. App.—Houston [14th Dist.]

2002, pet. denied). “An invalid explanation of delay, like no explanation for delay,

constitutes lack of diligence as a matter of law.” Rodriguez v. Tinsman & Houser,

13 S.W.3d 47, 49-51 (Tex. App.—San Antonio 1999, pet. denied).

      Texas courts have held that unjustified delays of as little as one month,

Rodriguez v. Tinsman & Houser, 13 S.W.3d 47 (Tex. App.—San Antonio 1999,

pet. denied), three months, Holt v. D'Hanis State Bank, 993 S.W.2d 237 (Tex.

App.—San Antonio 1999, no pet.), four months, Webster v. Thomas, 5 S.W.3d

287, 290-291 (Tex. App.—Houston, [14th Dist.] 199, no pet.), and five months,

Zacharie v. U. S. Nat. Resources, Inc., 94 S.W.3d 748, 754 (Tex. App.—San

Antonio 2002, no pet. h.), constitute a lack of due diligence as a matter of law.


                                         6
Plaintiff cannot rely on the process server’s attempts to personally serve

Defendant. It is the responsibility of the person requesting service, and not the

process server, to see that service is properly accomplished. Roberts v. Padre

Island Brewing, Inc., 28 S.W.3d 618, 621 (Tex. App.—Corpus Christi 2000, pet

denied), citing Tex. R. Civ. Proc. 9(a) and Gonzalez v. Phoenix Foods, supra.

      The original petition was filed on May 2, 2013 with a citation issued by the

Travis County Clerk on May 2, 2013. Appellant wants the court to believe that

because of the insurance company she had to seek counsel. She insinuates an idea

that she sought counsel right before the statute tolled. This is simply not the case.

Appellant was represented by an attorney previous to the expiration of the statute

of limitations a year prior. The insurance company’s knowledge is not relevant to

the due diligence of the Appellant serving the Appellee. There is no evidence that

the insurance company had anything to do with the Appellant filing the lawsuit on

the day of the statute. The duty is on the Appellant not only to file a timely lawsuit

but also to see that service is properly accomplished.

      After the lawsuit was filed, Appellant claims that service was attempted

twice on May 9, 2013, but there is no evidence that such service was attempted by

a private process server. There is no affidavit from the private process server.

Neither the private process server nor the private process server’s agency is named

and there is no information about the attempt to locate or serve Appellee. There is


                                          7
no reason given by the process server as to why the Appellee could not be served.

From May 2, 2013 up until October of 2013, when Appellant receives the letter

from her attorney’s office, there is no attempt of service on the Appellee nor any

evidence to demonstrate how due diligence was exercised in the service of citation

or an explanation of this period of delay. Furthermore, there is no evidence that

there was an attempt for substitute service at this time either. The Appellant failed

to satisfy her burden of offering a reasonable and valid excuse of the five month

delay in serving Alieda Silguero from May 2, 2013 to October of 2013.

      Appellant wants this court to believe that her attorney was incapacitated for

the entire eleven months. This is simply not the case and there is no evidence to

support this suggestion. There was a five month time period between when the

lawsuit was filed and her attorney’s letter about the stroke in which time nothing

was done to serve the citation to Appellee and there is no reasonable explanation of

such. Then after the Appellant receives notice of her attorney’s condition, she still

does not attempt to serve Appellee until she engages a new attorney on April 29,

2014. Appellant claims that in November 2013 attorney Crosby would not take her

case. From October 2013 until April of 2014, Appellant became ProSe, but still

had the duty to act as ordinary prudent person would have acted under the same or

similar circumstance as she was the person requesting service. Between October

2013 and April of 2014, Appellant’s explanation that she was trying to find a new


                                         8
attorney is not a reasonable and valid explanation for the delay. There is no

evidence that the Appellant attempted to find another attorney except for a self-

serving affidavit by Appellant. Then on June 3, 2014 a motion for substitute

service was filed twelve months after the original lawsuit.

       Appellant claims that it only took six weeks after substitute service was filed

on the amended petition to serve Appellee. Appellant relies on this six week period

to attempt to show due diligence. However, this still doesn’t explain or account for

the time period between May 2, 2013 and October 1, 2013 where there is no

evidence of an attempt of service or substitute service. Nor does it account for any

service attempts during October 1, 2013 to April 2014; there were not any

attempts.

    B. Appellant’s cases relied upon are not analogues to this case

       Proulx v. Wells1-The Appellant relies on this case as mentioned in her brief,

however, the Appellant fails to note that the Plaintiff in the Proulx case attempted

to serve the Defendant over thirty times in a nine month period. Additionally there

was evidence that the Defendant in Proulx was actively avoiding service.2 The

Plaintiff in the Proulx case went so far as to hire a private investigator.3 There was

actual summary judgment evidence that demonstrated the service, attempts on


1
  Proulx v. Wells 235 S.W. 3rd 213 (Tex. 2007)
2
  Id. at 216
3
  Id.
                                                 9
service, and the Defendant’s avoidance. The court noted that the circumstances

presented in the case was far different from those in which court have found lack

of diligence as a matter of law.4 The Court even distinguished in the Proulx

opinion that they have previously held, such as in the Gant5 case, against a Plaintiff

who failed to provide explanations for three service periods tolling for thirty eight

months.6 The Appellant in this case has no evidence of the attempts of service nor

any evidence that the Appellee was avoiding service, nor has provided any

evidence explaining delay of service between May 2, 2013 to October 2013,

October 2013 to November 2013 and November 2013 to April of 2014. Appellant

cannot rely on the Proulx case because the facts are not analogous and the

Appellant did not make continuous service attempts on the Appellee nor was the

Appellee avoiding service.


       Next the Appellant relies on NETCO, Inc. v. Montemayor.7 Again, the

Plaintiffs in this case made numerous attempts to serve the Defendant. Again, the

court held that it is the Plaintiff’s burden to explain every lapse of effort or period

of delay.8 The court’s determination on diligence against NETCO relied on the

fact that NETCO failed to maintain a correct address for their registered agent with


4
  Id. at 217
5
  Gant v. DeLeon 786 S.W. 2nd 259 (Tex. 1990)
6
  Proulx at 217
7
  NETCO, Inc. v. Montemayor 352 S.W. 3d 733 (Tex. App.−Houston [1st Dist.] 2011, no pet.)
8
  Id. at 739
                                             10
the Secretary of State as required by law.9 The court stated that the evidence

showed that Plaintiffs attempted to serve NETCO four times at the address they

had with the Secretary of State and that service for corporations is guided by the

Texas Business Organization Code.10 It was NETCO’s duty to maintain a proper

address with the Secretary of State in order to do business in the State of Texas.

The NETCO case is not analogous to Appellant’s case because there is no evidence

of attempts of service, nor is there an explanation for the lapse of delay between

May 2, 2013 and October 2013, nor is the Appellee required to keep an address

with the Secretary of State. Furthermore, service on Appellee is not guided by the

Texas Business Organization Code nor did the secretary of state become agent for

service for Appellee.


       Lastly, Appellant relies on Auten v. DJ Clark.11 In Auten the court held for

the Plaintiffs as they were able to show an explanation for three periods of a delay

in service. The process server for the Plaintiffs in the Auten case provided three

affidavits of his attempt of service and detailed his attempts.12 The affidavits were

also prepared because counsel for the Plaintiffs was going to file a motion for

substitute service.13 The second delay, while counsel did become incapacitated, he


9
  Id. at 740
10
   Id. at 741
11
   Auten v. DJ Clark, Inc. 209 S.W. 3d 695 (Tex. App.−Houston [14th Dist.] 2006, no pet.)
12
   Id. at 699, 700
13
   Id.at 700, 701
                                              11
did not release the Plaintiffs as his clients.14 The third delay was due to the clerk’s

office and order of the court on substitute service. This case is distinguishable from

Appellant’s case because there is no affidavit from the process server which

attempted service on Appellee from May 2, 2013 to October 2013, no attempt to

file a motion for substitute service until June 3, 2014, and the court did not hold up

or delay service on the Appellee.


                                    CONCLUSION

          Appellant failed to show that she used due diligence in her attempt to serve

Appellee. There was a time period before her attorney became ill in which no

attempts of service or substitute service were made on Appellee. By the time

Appellee was served there was an eleven month delay in service. Therefore, the

appellate court should dismiss this appeal for want of prosecution or affirm the

final summary judgment in Appellee’s favor because Appellant failed to meet her

burden.

                                       PRAYER

          WHEREFORE, PREMISES CONSIDERED, Alieda Silguero respectfully

asks the appellate court to affirm the judgment of the trial court that Appellant take

nothing on her claim against Alieda Silguero, and for all other relief to which

Alieda Silguero may be justly entitled, at law or in equity.

14
     Id. at 702
                                           12
                                       Respectfully submitted,
                                       CLARK, TREVINO & ASSOCIATES
                                       1701 Directors Blvd. Ste. 920
                                       Austin, Texas 78744
                                       (512) 445-1591
                                       (512) 383-0503 (Facsimile)

                                       By: /s/Nadia Ramkissoon____
                                       Nadia Ramkissoon
                                       State Bar No.24076635
                                       E-mail:
                                       nadia.ramkissoon@farmersinsuarnce.com
                                       ATTORNEY FOR APPELLEE

                      CERTIFICATE OF COMPLIANCE

       I certify by my signature above that I have reviewed Brief of Appellee and
have concluded that every factual statement in it is supported by the Clerk’s
Record and that the number of words in this document as allowed by TEX. R. APP.
P. 9.4(i)(2) (B) is 2,564.

                         CERTIFICATE OF SERVICE

       I hereby certify by my signature above that a true and correct copy of the
document has been delivered by certified mail, return receipt requested, and or
facsimile and or e-mail to the attorneys of record as listed below on the 21st day of
July, 2015:

      Leif A. Olson
      Attorney at Law
      PMB 188
      4830 Wilson Road, Suite 300
      Humble, Texas 77396
      (281) 849-8382
                                              /s/Nadia Ramkissoon
                                              Nadia Ramkissoon




                                         13
