      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-08-00204-CV



                                      Charles Hull, Appellant

                                                   v.

                                  Abel Dutch Vidaurri, Appellee


                FROM THE COUNTY COURT AT LAW NO.2 OF TRAVIS COUNTY
            NO. C-1-CV-05-283889, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING



                               DISSENTING OPINION


                Integral to our system of justice is reliance upon the fact-finder to resolve disputed

issues of fact. See Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 28 (Tex. 1993). Because the

majority misapplies the standard of review, steps into the shoes of the fact-finder, and substitutes its

own judgment for that of the jury on a question of fact, I respectfully dissent.

                The majority asserts that this case turns on whether Vidaurri exercised due diligence

in serving Hull after the limitations period expired. After considering the evidence and testimony

presented at trial, the jury considered the following question:


        From February 23, 2005 when the petition was filed through September 6, 2005 the
        date the petition was served, did Plaintiff Abel Vidaurri exercise due diligence to
        have Defendant Charles Hull served with the original petition?[1]


        1
         The charge defined the term “due diligence” as “that standard of diligence to procure
service which an ordinarily prudent person would have used under the same or similar
The jury answered this question in the affirmative.

               On appeal, Hull challenges the legal and factual sufficiency of the evidence to support

the jury’s verdict on this issue. When reviewing the jury’s findings for legal sufficiency, the supreme

court has instructed that we must view the evidence in the light most favorable to the jury’s verdict,

crediting favorable evidence if a reasonable fact-finder could, and disregarding contrary evidence

unless a reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex.

2005). The test for legal sufficiency is whether the evidence would enable reasonable and

fair-minded people to reach the judgment being reviewed. Id. at 827-28. In conducting a legal

sufficiency review, we presume that the jury made all inferences in favor of their verdict. Id. at 821.

In reviewing the factual sufficiency of the evidence, we consider and weigh all of the evidence in the

record, and we may overturn a judgment only if it is so against the great weight and preponderance

of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176

(Tex. 1986); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985) (citing In re King’s Estate,

244 S.W.2d 660, 661 (Tex. 1951)). Further, when reviewing a jury verdict for legal and factual

sufficiency, we must remember that it is the jury—not an appellate court sitting in review of the

jury’s verdict—that is the sole judge of the credibility of the witnesses and the weight to be given

their testimony. See Golden Eagle Archery v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). As the

trier of fact, the jury may resolve inconsistencies in the testimony of the witnesses and may believe

one witness and not another. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).




circumstances. The duty to exercise due diligence in service of process of the Original Petition is
a continuous one beginning on the date suit is filed until the petition is served.”

                                                  2
                When, as here, a defendant raises the defense of limitations and the plaintiff provides

an explanation to justify a delay in service, Texas courts have consistently recognized that the

question of the plaintiff’s diligence in effecting service is one of fact for the fact-finder to resolve.

See Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007) (whether plaintiff’s explanation demonstrates

diligence was a fact question for the trier of fact); Webster v. Thomas, 5 S.W.3d 287, 289-90 (Tex.

App.—Houston [14th Dist.] 1999, no pet.); Eichel v. Ullah, 831 S.W.2d 42, 44 (Tex. App.—El Paso

1992, no writ). In assessing diligence, 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, 235 S.W.3d at 216; see Tate v. Beal,

119 S.W.3d 378, 381 (Tex. App.—Fort Worth 2003, pet. denied). A plaintiff is not required to use

the highest degree of diligence in order to toll the statute of limitations; he need only show that his

actions and efforts to serve the defendant were reasonably diligent. See Proulx, 235 S.W.3d at 216;

see also Martinez v. Becerra, 797 S.W.2d 283, 284-85 (Tex. App.—Corpus Christi 1990, no writ);

Beavers v. Darling, 491 S.W.2d 711, 714 (Tex. Civ. App.—Waco 1973, no writ).

                As set forth in the majority opinion, there was conflicting evidence presented at trial

on the question of due diligence. Barbara Stinnet, the process server hired by Vidaurri, and

Chris Morgan, an attorney who represented Hull on an unrelated matter, testified on behalf of Hull.

In support of his claim that he exercised due diligence, Vidaurri presented the testimony of

Deborah Foster, a paralegal from the law firm who represented Vidaurri. In addition to these

witnesses, Hull testified that he was in jail at the time Vidaurri filed suit and that he moved to Dallas

upon his release. Hull also testified that, since the accident, he never lived anywhere longer than



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six months and that, while in Dallas, he lived with friends in various motels. Hull stated that he

would pay the friends in cash or buy groceries and that he never registered as a motel guest. Hull

also testified that he had worked at various restaurants in the Dallas area, but none for longer than

a few months.

                Based on the testimony of Morgan and Stinnet, the majority finds that there is a

four-month gap—between March 29, 2005, and August 1, 2005—in Vidaurri’s explanation of his

efforts to serve Hull. In so doing, the majority substitutes its own judgment for that of the jury and

all but ignores the record evidence favorable to the jury’s finding of due diligence.2 But contrary to

the majority’s opinion, the record demonstrates there was no four-month gap in Vidaurri’s efforts

to locate and serve Hull. Morgan testified that, after his conversation with Vidaurri’s attorney in

March 2005, he received three phone calls inquiring about serving Hull and that those calls were

received “in the intervening time” during “the summer of 2005”—i.e., during the alleged four-month

gap as found by the majority. Based on this undisputed testimony, the jury could have rationally

inferred that there were no unexplained gaps in Viduarri’s efforts to locate and serve Hull.3

        2
          It is not surprising that the majority relies heavily on the testimony of Morgan and Stinnet
to support its conclusion that Viduarri did not exercise due diligence because these were the two
witnesses who testified at trial in support of Hull’s claim that there was a lack of due diligence. But
even if one accepts the testimony of Morgan and Stinnet as true, there is sufficient evidence to
support the jury’s verdict of due diligence. That the majority refuses to view the evidence in the light
most favorable to this verdict demonstrates the majority’s complete failure to apply the proper
standard of review.
        3
          The majority’s reliance on the “equal inference rule” to discredit the jury’s verdict is
misguided. While the equal inference rule does not allow a jury to infer either of two facts where
circumstances are equally consistent with both facts, see City of Keller v. Wilson, 168 S.W.3d 802,
813 (Tex. 2005), that rule is inapplicable here. Morgan’s testimony was undisputed that he received
three phone calls in “the summer of 2005” inquiring about serving Hull. This testimony is clear that
Morgan received the phone calls during the alleged four-month gap as found by the majority. The

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               In addition, Foster testified that the law firm tried to call Hull several times and that

the firm’s in-house investigator tried unsuccessfully to track down Hull by looking for a paper trail

and trying to find an address for Hull based on his cell phone number. Foster stated that she

discovered later that Hull “had like five different addresses at the time and that one of them was in

jail.” Foster also testified that the law firm’s in-house investigator ran “auto track” searches to try

and locate Hull and that the “auto track system is usually pretty decent at helping us track people

down,” but “[w]e just weren’t getting any results there.” Based on this evidence, I would conclude

that whether Vidaurri exercised due diligence in trying to locate and serve Hull was a question of

fact for the jury, not this Court, to resolve. See Proulx, 235 S.W.3d at 216 (holding question of

plaintiff’s diligence in effecting service is generally one of fact); see also Elam v. Armstrong,

No. 03-07-00565-CV, 2008 Tex. App. LEXIS 6227, at *9-11 (Tex. App.—Austin Aug. 14, 2008,

no pet.) (mem. op., not designated for publication) (finding question of due diligence was question

of fact that defeated summary judgment despite plaintiff’s inability to state frequency or extent of

internet searches for defendant); Lawrence v. GEICO Gen. Ins. Co., No. 01-07-00873, 2009 Tex.

App. LEXIS 5082, at *9-11 (Tex. App.—Houston [1st Dist.] July 2, 2009, no pet.) (mem. op., not

designated for publication) (affirming trial court’s finding of due diligence based on lawyer’s

testimony that “not a single month . . . passed that something wasn’t being done”).

               The majority, however, faults Foster for not “provid[ing] any dates or further details

for any of these actions” and for testifying inconsistently about which attorneys at the law firm were




jury was therefore entitled to infer that these calls related to Viduarri’s efforts to serve Hull during
the relevant time period.

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actively trying to serve Hull. But the record is clear that the law firm’s in-house investigator was

conducting auto track searches during the alleged four-month gap identified by the majority, and the

jury could have inferred from Foster’s testimony that Stinnet was not the only person working on

trying to locate and serve Hull and that the law firm’s in-house investigator was actively attempting

to locate Hull during the time that Stinnet was not. See City of Keller, 168 S.W.2d at 821

(presuming that jury drew all inferences in favor of its verdict).

               In addition, when considering whether Vidaurri was diligent in his efforts to serve

Hull, the majority refuses to acknowledge Hull’s own testimony, which detailed his many changes

of address during the relevant time period and his lack of a permanent job. Cf. Proulx, 235 S.W.3d

at 217 (considering evidence that defendant was actively avoiding service in determining whether

plaintiff exercised due diligence); Martinez, 797 S.W.2d at 285 (finding that defendant’s multiple

changes of address and attempts to avoid service “weigh heavily in favor of finding due diligence”).

Coupled with Foster’s testimony that Hull “had like five different addresses at the time and that one

of them was in jail,” the jury could have inferred from Hull’s testimony that he was actively avoiding

service or, at a minimum, was attempting to conceal his whereabouts. See City of Keller,

168 S.W.2d at 821; see also Martinez, 797 S.W.2d at 285 (finding that concealment weighs heavily

in favor of finding due diligence); Beavers, 491 S.W.2d at 714 (“we cannot say as a matter of law

that Plaintiff-Appellant failed to exercise due diligence” in effecting service where attempts

at service were thwarted because defendant moved and changed jobs without leaving

forwarding information).




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               Relying on Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009), the majority

concludes that Viduarri’s explanation of his efforts to serve Hull failed to demonstrate due diligence

as a matter of law. In that case, the court found multiple unexplained gaps of eight months and

two months in the plaintiff’s efforts to serve the defendant. Id. at 180 & n.6. The record also

showed that, despite having located the defendant in California, it took the plaintiff almost

two months to accomplish service. Id. at 180 n.6. While a two-month delay would not amount to

a lack of due diligence as a matter of law in most circumstances, the supreme court explained that

this gap, coupled with an earlier unexplained gap of five months, amounted to a lack of due diligence

as a matter of law. Id. In contrast, the undisputed testimony here shows no unexplained gaps in

Viduarri’s efforts to serve Hull. More importantly, there is no evidence that Viduarri knew of Hull’s

whereabouts prior to accomplishing substituted service. The majority’s reliance on Ashley is

therefore inapposite.

               Based on the evidence in the record before us and viewing this evidence in the light

most favorable to the verdict, I would conclude that a reasonable jury could have found that Vidaurri

acted as a reasonably prudent person would have acted and that Vidaurri acted diligently until Hull

was served. Although the majority finds that the issue of due diligence in this case is a question of

law, it is clear from the state of the record before us that the majority instead has chosen simply to

disregard the jury’s verdict, step into the shoes of the fact-finder, and re-weigh the evidence in favor

of Hull. Because the majority has effectively usurped the role of the jury and has substituted its

judgment for that of the jury on a question of fact well within the jury’s province to resolve, I

respectfully dissent.



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                                           __________________________________________

                                           Jan P. Patterson, Justice

Before Justices Patterson, Puryear and Pemberton

Filed: January 22, 2010




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