                                      In The

                               Court of Appeals

                    Ninth District of Texas at Beaumont

                              __________________

                              NO. 09-17-00447-CV
                              __________________

                     EDNA ADAMS DUNCAN, Appellant

                                         V.

                       HAROLD LEE BROWN, Appellee



                   On Appeal from the 284th District Court
                        Montgomery County, Texas
                      Trial Cause No. 15-10-11457-CV


                         MEMORANDUM OPINION

      Defendant Edna Adams Duncan appeals the trial court’s denial of her motion

for judgment notwithstanding the verdict after a jury awarded damages to Plaintiff

Harold   Lee   Brown     in   this   personal   injury   suit   resulting   from   an

automobile/pedestrian accident. The primary issue on appeal is whether Brown

exercised due diligence in serving Duncan with the petition. The evidence presented

to the jury established that the accident occurred on October 30, 2013. Duncan
                                         1
testified at trial that she was not served with this suit until June 2016. Duncan filed

an answer on July 11, 2016. Approximately four months later, Duncan filed an

amended answer and asserted a limitations defense arguing the claims were barred.

      The jury found Duncan eighty percent liable for the accident and for Brown’s

injuries and awarded damages for past medical expenses and loss of earning capacity

sustained in the past. After the jury’s verdict was announced, Duncan made an oral

motion for judgment notwithstanding the verdict (JNOV) and informed the court

that she would be filing a written motion for JNOV. The trial court denied the oral

motion, later signed a final judgment in accordance with the jury verdict, and never

signed the proposed JNOV filed by Duncan. Duncan moved for a new trial, and the

motion was overruled by operation of law. See Tex. R. Civ. P. 329b(c). Duncan

appealed.

      In one appellate issue, Duncan argues the trial court erred in denying her

motion for JNOV because Brown failed to exercise due diligence in serving the

petition on the defendant. Duncan contends that “the evidence conclusively

demonstrated that Brown did not serve Duncan until over seven months after the

limitations period expired and after a five-month gap of inactivity[.]”




                                          2
                                 Standard of Review

      A trial court may disregard a jury finding and enter a judgment

notwithstanding the verdict if the finding is immaterial or if there is no evidence to

support the finding. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003); Spencer v.

Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994). We review rulings on

motions for a JNOV under the same legal-sufficiency test that we review no-

evidence summary judgments and directed verdicts. See Tanner v. Nationwide Mut.

Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009) (citing City of Keller v. Wilson, 168

S.W.3d 802, 823 (Tex. 2005)). Applying that standard, a no-evidence point will be

sustained when (1) there is a complete absence of evidence of a vital fact, (2) the

court is barred by rules of law or rules of evidence from giving weight to the only

evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is

no more than a scintilla, or (4) the evidence conclusively establishes the opposite of

a vital fact. City of Keller, 168 S.W.3d at 810 (citing King Ranch, Inc. v. Chapman,

118 S.W.3d 742, 751 (Tex. 2003), and other cases). We view the evidence and

inferences in the light most favorable to the jury’s finding. Id. at 807. The test for

legal sufficiency is “whether the evidence at trial would enable reasonable and fair-

minded people to reach the verdict under review.” Id. at 827. In making this

determination, we credit favorable evidence if a reasonable factfinder could, and

                                           3
disregard contrary evidence unless a reasonable factfinder could not. Id. So long as

the evidence falls within the zone of reasonable disagreement, we may not substitute

our judgment for that of the factfinder. Id. at 822. The trier of fact is the sole judge

of the credibility of the witnesses and the weight to be given their testimony. Id. at

819.

           Statute of Limitations and Due Diligence in Perfecting Service

       If a plaintiff files his petition within the limitations period, service outside the

limitations period may still be valid if the plaintiff exercises due diligence in

procuring service on the defendant. Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex.

2009); Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (per curiam) (citing Zale

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

defendant has affirmatively pleaded the defense of limitations and shown that

service was untimely, the burden shifts to the plaintiff to prove diligence in his

efforts to effectuate service. Ashley, 293 S.W.3d at 179; Proulx v. Wells, 235 S.W.3d

213, 216 (Tex. 2007) (per curiam). “Diligence is determined by asking ‘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.’”

Ashley, 293 S.W.3d at 179 (quoting Proulx, 235 S.W.3d at 216). Although ordinarily

a fact question, a plaintiff’s evidence may demonstrate a lack of diligence as a matter

                                            4
of law “‘when one or more lapses between service efforts are unexplained or patently

unreasonable.’” Id. (quoting Proulx, 235 S.W.3d at 216). The plaintiff has the burden

to explain every lapse in effort or period of delay. Id.

               Hearing on Motion to Dismiss for Lack of Jurisdiction

      On the morning of trial, before the parties began jury selection, Duncan’s

attorney e-filed a Motion to Dismiss for Lack of Jurisdiction arguing that the case

was barred by the statute of limitations and that Brown failed to exercise due

diligence in perfecting service of process. The trial court denied the motion on the

record, noting that the trial court had jurisdiction and the cases do not support a

dismissal based on a lack of jurisdiction.

                            Evidence Presented to the Jury

      In Brown’s case in chief, Brown presented evidence about the accident, his

work history, his injuries, and medical care. 1 After the plaintiff initially rested, the

defense attorney made a motion for directed verdict arguing the plaintiff failed to

put on any evidence as to service or to establish due diligence. The trial court allowed

Brown’s counsel to reopen the evidence to put on evidence about the exercise of due

diligence and his attempts to serve Duncan.



      1
        For purposes of this appeal, we need not discuss this evidence as we limit
our discussion to the evidence related to the issue of due diligence.
                                           5
      With respect to the issue of due diligence, the jury heard testimony from

Brown’s counsel and it received exhibits. At trial, Brown’s counsel testified that in

an earlier suit he filed on March 24, 2014, Duncan was served September 2, 2014,

and Duncan provided her deposition in that proceeding. Brown’s attorney explained

to the jury that Brown non-suited the first suit because Brown was unable to be

present for trial as he was out of state seeking employment, and the trial court refused

to grant a continuance. Brown’s attorney testified that Brown filed suit again against

Duncan in the 284th District Court of Montgomery County on October 28, 2015,

two days before limitations expired.

      Brown’s counsel explained to the jury that he exercised due diligence in

serving Duncan, stating

             . . . [W]e filed [the request for issuance of citation to Duncan]
      with the Court, and we paid the Court for the sheriff to serve her.
             At some point, there were issues regarding serving her, because
      the sheriff, once they get that kind of citation, they have the authority
      to do it by mailing. And then they did that . . . and that is the . . . [tracking
      documentation] that the Court printed for us - -
             - - which showed that the sheriff - - the sheriff officers mailed - -
      mailed it to her house. You’re going to see it as you . . . go to make your
      decision, it went to her house by certified mail, they left notice there,
      and then it was unclaimed. She didn’t pick it up. Then it went back to
      her house and came back to the court.
             When that happened, we did not have notice of that, that process
      was delayed, because no matter if you have the sheriff’s service, you
      have the opportunity that at least you have somebody impartial and
      neutral who will get the service done. And then we were waiting.

                                             6
             When we did not hear anything, that’s when we received the
      notice from the court that she has not been served, and then we filed a
      motion for substitute of process, which was filed March 10, 2016. . . .
             ...
             So after that motion for substituted service was filed so we could
      serve Ms. Duncan, you can do it by publication, although that brings in
      more embarrassment than anything else. That’s why you have to try
      other processes, private service, the court, the sheriff and all of that.
             To fast forward, Ms. Duncan filed an answer in the case.
             ...
             So the issue of due diligence . . . we believe that we did
      everything that we have to do.
             In some cases, you have individuals going at the other people’s
      jugular, but you do process service by private. That’s [what] we did in
      2014. She was served. The sheriffs attempted to serve her. They were
      unable to do that. We could have gone on publication, but - - on this
      side. We do not think that you need to bring anything up that
      embarrasses the other side regardless of what the case is all about.
             And we have tried all of that until - - until this point. It would
      have been addressed if it was raised before the Court earlier. Here, we
      believe that we did everything that we have to do on our side. The whole
      instance of being served is for you to know that something is going on.
      There is no way the other side will say that they did not know what was
      going on when the petition was filed five months after - - after two years
      that we have.
             The second one, after it was nonsuited, was filed within that two
      years. And everything that we have to do on our side, private process
      service, the Court process service, we did.

      On cross-examination, Brown’s attorney testified that he requested a citation

from the clerk of court in the second case the “moment it was filed.” According to

the testimony from Brown’s attorney, “[w]e requested service originally when we

filed the case.” Duncan’s attorney continued his cross-examination of Brown’s


                                          7
attorney and referred to a docket sheet (that was not marked or admitted as an

exhibit) and the following exchange occurred:

      Q. Sir, once again, do you know when you requested a citation in the
      second case, in this 2015 case?

      A. We requested citation the moment it was filed.

      Q. When was it filed?

      A. It was filed October 28, 2015, I believe. I’m not sure. I do not have
      the specific date. The one that I have with me here is the original one
      of –

      ...

      Q. I’m going to show you a civil process request that’s signed by you.
      That’s signed by you, correct?

      A. Yes, that’s correct.

      Q. And what is the date at the top of it? There’s a file stamp date of
      when you filed that request.

      A. This was December 15, 2015.

      Q. That’s when you requested citation in this matter, correct?

      A. No, let me -- let me explain to you. We requested service originally
      when we filed the case.

      Q. Do you have any evidence of that?

      A. As I mentioned to you, this is something that you are just raising
      now. I do not have the file. I’m -- presented to the Court. If we have to
      brief the Court, I have more than enough material on the law and the
      fact to brief the Court. This is just a last-minute thing that you are doing.
                                             8
      ...

      Q. I’m going to show you a court docket we looked at off the record a
      little bit earlier. You see the third entry there is titled Request For
      Service. Isn’t it true that you didn’t request service in this case until
      December 15th, 2015?

      A. We requested service when we filed our petition. Remember, we
      filed the original petition within five months of the case. We filed the
      second one within two years. We requested citation, as we always do.

      Q. In the 2015 case, the first time you requested citation was December
      15, 2015, correct?

      A. This is the document that you are just showing to me. I mean,
      normally something of this nature will be tried, parties would exchange
      information on every issue that you’re going to ask questions about.
      That is why we served discovery to you.
              If I knew you were going to raise all these issues, I would have
      asked you to give me all the document that you want to refer to. I could
      look into it. If I have anything I will give it to you, and not something
      that you’re just bringing in in the last minute.
              So this is your document. I don't know how authentic it is and
      stuff like that. This is just a last-minute --

      [Defense Attorney]: Your Honor, can the Court take judicial notice that
      the citation was first issued on December 15th, 2015?

      THE COURT: Granted. The Court will take judicial notice that’s a fact.

      Plaintiff’s Exhibit 4 is a document entitled “USPS Tracking Results” that

Brown’s attorney testified reflected that the clerk of court sent service by certified

mail to Duncan, but it was returned undelivered. Plaintiff’s Exhibit 4 was admitted

into evidence, and it indicates “Notice Left (No Authorized Recipient Available)”

                                          9
on December 21, 2015. The document also indicates “Unclaimed/Being Returned to

Sender” on December 26, 2015. Brown’s counsel testified that the USPS document

shows that the citation “went to her home [and] [s]he didn’t pick it up.” The

document indicates that the citation arrived back at the USPS unit in Conroe on

December 30, 2015. The trial court took judicial notice of part of the clerk’s file that

contained the December 15, 2015 citation and tracking information as follows

      The Court will take judicial notice that the clerk’s file reflects that
      citation was mailed certified, and I believe the date is December --
      correct me if I’m wrong -- December 15, 2015. And the follow-up was
      just obtained -- the Court took judicial notice -- which is going to be
      now marked as plaintiff’s new Exhibit No. 4. Instead of Court Exhibit
      1, it will be Plaintiff Exhibit 4 reflecting the tracking on that. And those
      have been received -- accepted by the Court as -- and judicially noticed
      as facts and as documents that are true.

      Brown’s attorney told the jury that after receiving notice from the clerk of

court that Duncan had not been served, he filed a motion for substitute service of

process stating that “Plaintiff attempted to serve Defendant on several occasions by

personal delivery through the Montgomery County Sheriff’s Office but has not been

successful despite due diligence on the part of the Plaintiff and efforts of

Montgomery County Sheriff’s Office.” A copy of Plaintiff’s Motion for Substituted

Service was marked and admitted into evidence as Plaintiff’s Exhibit 5. Brown’s

attorney further testified that he filed another motion for substituted service and that

the trial court signed an order approving it.
                                         10
      Brown’s original motion for substituted service of process was dated March

10, 2016, and it indicates that Brown asked the trial court to authorize him to serve

Duncan by leaving a copy of the petition and order authorizing substituted service

attached with anyone at Duncan’s address over sixteen years of age, by firmly

affixing a true copy of the citation with a copy of the petition and the order

authorizing substituted service attached and leaving the copy at Duncan’s address,

or by publication. According to the testimony from Brown’s attorney, it was to be

placed on submission, and then he also filed a second motion that was then signed

by the trial court. Brown’s attorney also explained that Duncan filed an answer, on

July 11, 2016.2 Brown’s attorney explained

      A. So Ms. Duncan filed an answer on this case. After filing an answer,
      we did what they called discovery. Discovery is where you serve the
      other people paper, tell us about yourself. The other side serves you
      paper. And that has continued on. And that’s when the Court fixed the
      trial for today.
              All along from the time that she was served and we did discovery
      and she did deposition and everything, there was no issue raised about
      an answer until today.

      [Defense Attorney]: Objection, Your Honor. We had an amended
      answer on file.
      THE COURT: Sustained. The defendant has pled that timely.
      2
         Plaintiff’s Exhibit 6 was also admitted into evidence. Exhibit 6 is an
Officer’s Return and an affidavit from a private process server in 2014 and it
indicates when and where Duncan was served with the earlier suit, and the address
where Duncan was served by personal service in 2014 is the same address where
Brown attempted service in the second suit.
                                       11
      After Brown’s attorney finished his testimony, the plaintiff rested again, and

the defendant renewed his motion for directed verdict. The trial court then denied

the motion for directed verdict.

      The defense called Duncan to testify. 3 Duncan testified that in June 2016 a

lady with a “badge like a sheriff’s[]” came to her door and served her papers in this

case. Duncan testified that before being served she had not heard anything about the

case since it had been dismissed in the fall of 2015, but she acknowledged “our mail

service out there is not the best[]” and that “[w]e have days that we don’t get mail.”

Duncan subsequently filed an answer, and on October 21, 2016, Duncan filed her

amended answer asserting the defense of limitations and lack of due diligence.

      After the parties rested and the evidence was closed, the defendant then again

moved for a directed verdict on limitations, arguing the burden shifted to the plaintiff

to explain the delay and establish due diligence. Again, the trial court denied the

motion. An issue about due diligence was submitted to the jury in question one4 and

the jury answered “Yes” finding that Brown exercised due diligence.


      3
        The defendant also called another witness, the State Trooper who responded
to the accident. For purposes of this appeal, we need not discuss the detail of the
officer’s testimony because it does not relate to the issue on appeal.
      4
         Neither party made any objections to the charge. The first question submitted
to the jury was

                                          12
                                      Analysis

      The jury heard testimony from Brown’s attorney that Duncan had been served

previously in the earlier suit that was non-suited. The attorney also testified that he

non-suited the earlier case because Brown was unable to attend trial, and that Duncan

knew about the possibility of a new suit being filed within the limitations period

because it had been discussed between the parties’ attorneys. Brown’s attorney told

the jury that he requested service when he first filed the second suit on October 28,

2015. Brown’s attorney explained that the clerk issued a citation and attempted

service by certified mail in December 2015, but as indicated on the tracking

documentation for the citation sent by certified mail it was returned as “unclaimed.”

The citation was delivered back to the clerk on December 30, 2015, according to


      QUESTION 1
             Did Harold Lee Brown, or someone acting on his behalf, exercise
      diligence to have Edna Adams Duncan served?

            The standard of diligence required is that diligence to procure
      service which an ordinarily prudent person would have used under the
      same or similar circumstances. The duty to use diligence continues
      from the time suit was filed against Edna Adams Duncan on October
      28, 2015 until Edna Adams Duncan filed an answer on July 11, 2016.

             Answer “Yes” or “No.”

      Answer: YES


                                          13
Plaintiff’s Exhibit 4. The jury also heard testimony from Duncan that sometimes her

mail service was not that reliable. The jury could have concluded that Brown made

an initial request for service when he filed the second suit, and further that the

unsuccessful attempts to serve the defendant by certified mail in December 2015

were because of mail delivery problems or avoidance of service, and circumstances

beyond the control of Brown.

      The jury also heard Brown’s attorney testify that when he learned about the

unsuccessful service he filed a request for substituted service on March 10, 2016, as

indicated in Plaintiff’s Exhibit 5. And, the jury heard Brown’s attorney explain his

first motion for substituted service was to be by “submission,” that he then filed a

second motion for substituted service, and that the defendant was served and then

filed an answer. Duncan testified she was served in June 2016.

      Based on the record before us, the jury could have reasonably concluded that

Brown explained his efforts to obtain service after learning of the failed attempted

service in December 2015, because the attorney testified that he made further

attempts to obtain service by filing two motions for substituted service and then he

obtained successful service of process in June 2016. Brown’s attorney also testified

that he also tried service by a private process server. The jury could have believed



                                         14
the testimony of Brown’s attorney that he “did everything that we have to do on our

side, private process service, the court process service, we did.”

      Deferring to the jury’s evaluation of the credibility and weight of the evidence

and viewing the evidence in the light most favorable to the jury’s finding as we must,

we conclude that a reasonable jury could have found that Brown exercised due

diligence in effectuating service on Duncan. See Ashley, 293 S.W.3d at 179 (quoting

Proulx, 235 S.W.3d at 216). The jury could have reasonably inferred from the

testimony and exhibits that Brown’s attorney made continuous reasonable efforts

between October 28, 2015 through the date she was served to effectuate service and

that he explained any gaps. See City of Keller, 168 S.W.3d at 807, 827; see also

NETCO, Inc. v. Montemayor, 352 S.W.3d 733, 739-41 (Tex. App.—Houston [1st

Dist.] 2011, no pet.) (evidence supported jury’s finding of due diligence when

plaintiff obtained service within four months of expiration because the jury could

have reasonably concluded due diligence in service where defendant-company failed

to maintain a correct address for its agent for service of process with the secretary of

state, plaintiff’s counsel explained the delay, and plaintiff sought substituted

service); Lawrence v. Geico Gen. Ins. Co., No. 01-07-00873-CV, 2009 Tex. App.

LEXIS 5082, at **7-11 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (evidence

supported jury’s finding of due diligence when plaintiff served defendant by

                                          15
publication eight months after filing suit, plaintiff had to serve by publication again

because of typographical error in the first citation, plaintiff did not seek substituted

service but finally served defendant personally seven months after service by

publication, and plaintiff worked on the case every month until actual personal

service was accomplished). We cannot say the jury’s finding is outside the zone of

reasonable disagreement. See City of Keller, 168 S.W.3d at 822. Accordingly, we

overrule Duncan’s sole appellate issue. We affirm the trial court’s judgment.

      AFFIRMED.


                                                      _________________________
                                                         LEANNE JOHNSON
                                                               Justice


Submitted on January 24, 2019
Opinion Delivered July 25, 2019

Before Kreger, Horton, and Johnson, JJ.




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