IN THE FIRST COURT OF APPEAL
STATE OF TEXAS

NO.: 01

- 15

- 00963

JUAN SOTO PEREZ, ET AL.
VERSUS
JARED EFURD AND JAMES EFURD

APPLICATION TO THE FIRST COURT OF APPEAL FOR REVIEW FROM THE SIXTY FIRST JUDICIAL DISTRICT COURT FOR THE COUNTY OF HARRIS, STATE OF TEXAS, NO: 2014

- 19704 , THE HONORABLE ERIN LUNCEFORD, PRESIDING

ORIGINAL BRIEF FILED ON BEHALF OF THE APPELLANTS JUAN SOTO PE REZ, ET AL.
Respectfully submitted : H.L. HARPER & ASSOCIATES, L.L.C. VESTA T. ARMSTRONG Texas State Bar No. 00798240 1631 Elysian Fields Avenue New Orleans, Louisiana 70117 (855) 880

- 4673 Office (504) 322

- 3807 Facsimile varmstrong@hlharperandassociates.com ACCEPTED 01-15-00963-CV FIRST COURT OF APPEALS

HOUSTON, TEXAS 12/24/2015 9:49:08 AM CHRISTOPHER PRINE

CLERK1 Identity of Parties and Counsel Appellants : Juan Soto Perez, Jose Ulloa

- Siallos, Keyri Menjivar, Individually and as next friend of Kendric Menjivar Trial and Appellate Counsel :
H.L. HARPER & ASSOCIATES, L.L.C. Vesta T. Armstrong, Esq. 1631 Elysian Fields Avenue New Orleans, Louisiana 70117 and EDWIN M. SHORTY, JR. & ASSOCIATES , APLC Edwin M. Shorty, Jr., Esq. , Pro Hac Vice 650 Poydras Street, Suite 2515 New Orleans, Louisiana 70130 Appelle e s : Jared Efu rd and James Efurd Trial and Appellate Counsel: KANE, RUSSELL, COLEMAN & LOGAN, PC Zach T. Mayer, Esq. William R. Jones , Esq. 1601 Elm Street, Suite 3700 Dallas, Texas 752012 Table of Contents
Index of Authorities

...................................................... .................. .... Statement of the Case........................................................................

... Issues Presented

............................................................... ................. Statement of the Facts.....................................................................

.... Summary of the Argument..................................................................

.. Argument.......................................................................................

. Prayer

........................................................................... ................. Appendix..............................................................................

.......... Certificate of Compliance

– Word Count................................................

...3 Index of Authorities BP Auto., L.P. v. RML Waxahachie Dodge , L.L.C. NO. 01

- 12

- 00085

- CV (Tex. App., 9/18/ 14)

............................................. ...................................... Eichel v. Ulla , 831 S.W.2d 42, 44 (Tex. App.

— El Paso 1992, no writ).........

....... Evans Am. Corp. v. Munter’s Moisture Control , No. 01

- 92

- 01046

- CV, 1993 WL 518607, (Tex. App.

— Houston [1st Dist.] December 16, 1993, no writ) (not designated for publication)

....................................... ............................. Gant v. DeLeon , 7 86 S.W.2d 259, 260 (Tex. 1990)...........................

............ Gundermann v. Buehring , No. 13

- 05

- 278

- CV (TX 2/2/2006) (TX, 2006)

......... .... Joe v. Two Thirty Nine Joint Venture , 145 S.W.3d 150, 156 (Tex. 2004)

.............. Montgomery v. Kennedy , 669 S.W.2d 309, 310

- 11 (Tex. 1984)

..................... .... Nixon v. Mr. Prop. Mgmt. Co ., 690 S.W.2d 546, 548 (Tex. 1985)

..................... . Proulx v. Wells , 235 S.W.3d 213, 215 (Tex. 2007)

.................................... .... Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 215

- 16 (Tex. 2003)

........ ................................................................................................................. Randall's Food Mkts., Inc. v. Johns on , 891 S.W.2d 640, 644 (Tex. 1995)............

. Roark v. Stallworth Oil & Gas , Inc., 813 S.W.2d 492, 494 (Tex. 1991)............

... Taylor v. Thompson , 4 S.W.3d 63, 64 (Tex. App.

- Houston [1st Dist.] 1999, pet. denied)

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

......... ...4 Statement of the Case This case involves a civil suit for personal injuries sustained in Harris County, Texas. The plaintiffs filed suit for personal injuries on April 9, 2014 and served the defendants with said suit on December 12, 2014 . The matter proceeded to discovery between the parties. The defendants filed a Motion for Summary Judgment based on the affirmative de fense of statute of limitations on September 17, 2015 which the trial cou rt granted on October 16, 2015. T he appellants now appeal from said judgment

. Issue ( s ) Presented
Did the trial court commit reversible err or as a matter of law when granting
the Defendants Motion for Summary Judgment based on the affirmative defense of
statute of limitations ? Statement of Facts Appellants are residents of New Orleans, Louisiana. They were involved in an automobile accident on August 30, 2012, while in Houston, Texas. Specifically, a vehicle occupied by appellants was rear ended by a ve h icle being operated by appellees while stopped at a red light at the intersection of 4700 Airline Drive , Harris County, Texas . Appellants suffered multiple injuries as a result o f the collision. The appellees address at the time of the collision was 4111 US

- 80 E, #306, Mesquite, Dallas County, Texas 75150. Appellants filed an original petition5 for damages on April 9, 2014. Issuance of citation was properly requested on the same day. The clerk of court then is sued the citations as requested on April 14, 2014. The appellees last known address that was listed in the citation was 4701 Preston Park Blvd., #1611, Plano, Collin County, Texas 75095. Appellants filed a First Amended Original Petition and First Set of Discovery and requested issuance of citation on July 28, 2014. The clerk of court issued the citations as requested on August 1, 2014. Th e appellees correct address that was listed in the citation was 921 Glory Drive, Waxahachie, Ellis County, Texas 75165. Appellant’s process server, Gregory D. Harper, received the citation with petition attached on or about September 18, 2014. He attempt ed to personally serve appellees several times at 921 Glory Drive, Waxahachie, Texas 75165; namely on September 18, 2014, September 20, 2014, September 23, 2014, and September 24, 2014, to no avail. Appellants subsequently filed a Motion for Alternative Service on October 29, 2014. The Court granted the motion on November 5, 2014. On December 12,
2 01 4, Mr. Harper served appellees at 921 Glory Drive, Waxahachie, Texas 75165, by attaching a copy of the Plaintiffs’ First Amended Original Petition and First Set of Discovery by securely fastening the citation with pleadings and orders to the
front door of the aforementioned premises. The Return of Service Affidavit was filed into the record on December 15, 2014.6 Appellees filed an Original Answer to the petition on December 30, 2014. In said answer, appellees asserted that the appellant’s claims were time b arred by the applicable statu te of limitations as appellants failed to use the necessary diligence in securing service of process on appellees after the limitation period expired. Sin ce the filing of the appellees Original Answer, the parties have engaged in discovery, including written discovery an d the depositions of appellees in Houston, Texas on July 23, 2015. Approximately eight and a half months after filing the Original Answer and two months after appellees depositions, appellants
filed a Motion for Summary Judgment on September 17, 2015, solely based on an alleged failure to use diligence in securing service of process on appellees after the expiration of the statute of limitations.
S ummary of Argument
The trial court erred as a matter of law when it granted the appellees Motion for Summary solely based on appellees allegations of the appellants’ failure to use diligence in securing service of process on the appellees

.7 Argument The trial court ruled contrary to Texas law when finding the a ppellants were not diligent in attempting to serve the appellees with service

. This Honorable Court stated in BP Auto., L.P. v. RML Waxahachie Dodge , L.L.C. NO. 01

- 12

- 00085

- CV (Tex. App., 9/18/ 14) : We review the trial courts summary judgments de novo. Joe v. Two Thirty Nine Joint Venture , 145 S.W.3d 150, 156 (Tex. 2004).

... Under the "traditional" summary

- judgment standard, a summary judgment should be granted only when the movant establishes that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 215

- 16 (Tex. 2003). In the case at bar, the appellees have failed to demonstrate that the appellants were not diligent at serving them with the petition . The allegations made in the summary judgment motion regarding the lack of timely service on the appellees

are not consistent with Texas law and principles of equity. The appellants made consistent efforts to serve the appellees , trying to locate and serve them after several changes of address were lodged by the appellees

. The Court of Appeals of Texas, Thirteenth District, Corpus Christi stated in Gundermann v. Buehring , No. 13

- 05

- 278

- CV (TX 2/2/2006) (TX, 2006) that: To obtain a traditional summary judgment, a party moving for summary judgment must show that no genuine issue of material fact exists and that the party is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Ra ndall's Food Mkts., Inc. v. Johnson , 891 S.W.2d 640, 644 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co ., 690 S.W.2d 546, 548 (Tex. 1985). In8 reviewing the grant of a summary judgment, we must indulge every reasonable inference and resolve any doubts in favor of the non

- movant
. Johnson , 891 S.W.2d at 644; Nixon , 690 S.W.2d at 549. In addition, we must assume all evidence favorable to the non

- movant is true

. Johnson , 891 S.W.2d at 644; Nixon , 690 S.W.2d at 548

- 49. Statute of limitations is an affirmative defense. Tex. R. Civ. P. 4. A properly pleaded affirmative defense, supported by uncontroverted summary judgment evidence, may serve as the basis for summary judgment. Roark v. Stallworth Oil & Gas , Inc., 813 S.W.2d 492, 494 (Tex. 1991); Gant v. DeLeon , 786 S.W.2d 259, 260 (Tex. 1990); Taylor v. Thompson , 4 S.W.3d 63, 64 (Tex. App.

- Houston [1st Dist.] 1999, pet. denied). When a defendant moves for summary judgment on an affirmative defense, he must conclusively prove all the essential elements of the defense as a ma tter of law, leaving no issues of material fact. Gant , 786 S.W.2d at 260; Montgomery v. Kennedy , 669 S.W.2d 309, 310

- 11 (Tex. 1984); Taylor , 4 S.W.3d at 65. (Emphasis added). To comply with the statute of limitations, a plaintiff must file suit within th e applicable limitations period and use diligence to se rve the defendant with
process. 1 If service is diligently effected after limitations has expired, the date of service will rel ate back to the date of filing. 2 Due diligence depends on: (1) whether plaintiffs acted as ordinary prudent persons would act under the same circumstances; and (2) whether plaintiffs acted diligently up until the time defendant was actually served. 3 Whether the plaintiff acted with due d iligence is a question of fact. 4 Only where the plaintiff offers no valid explanation for the delay in service may the question of due diligence be answered as a matter of law. 5

1 Proulx v. Wells , 235 S.W.3d 213, 215 (Tex. 2007). 2 Id. ; accord Gant v. DeL eon , 786 S.W.2d 259, 260 (Tex. 1990); Zale Corp. v. Rosenbaum , 520 S.W.2d 889, 890 (Tex. 1975) (per curiam). 3 Eichel v. Ulla , 831 S.W.2d 42, 44 (Tex. App.

— El Paso 1992, no writ); accord Evans Am. Corp. v. Munter’s Moisture Control , No. 01

- 92

- 01046

- CV, 199 3 WL 518607, (Tex. App.

— Houston [1st Dist.] December 16, 1993, no writ) (not designated for publication). 4 Eichel , 831 S.W.2d at 43. 5 Id. at 44.9 In the present case, appellants exercised due diligence in attempting to serve appellees by immediately having the citation issued with the las t known address of the appellees. The appellants made numerous attempts to serve the appellees at the ir last known address. When the appellants discovered the c orrect address for the appellees, appella nts immediately amended the Petition and immediately had
the citation and petition reissued with the correct address. Upon receipt of the reissued citation, appellants contacted the process server and once again attempted service on the appellees (see atta ched Exhibit B in Appendix) . When personal service was not accomplished through the process server , appellees requested substituted service in a timely fashion. Substituted servic e was accomplished and appellees filed an answer. The issues and facts regar ding the delay were relayed to the trial court, which in violation of law, granted the appellees summ ary judgement
motion . The caselaw is clear that the trial court can do so only when the plaintiff offers no valid explanation for the delay. In the case at bar, the appellants attempted to serve the appellees numerous times. The appellees attempted to ‘duck

se rvice’ in this matter, moving to different addresses throughout the state. The appellants claims cannot be dismissed solely because the appellees we re ‘ducking service’ , especially while the appellants were consistently attempting to locate and serve the appellees . The trial courts judgment runs contrary to Texas law and
notions of equity

.10 Courts have consistently found that the amount of diligence that must be used is “that diligence that an ordinary person would have used under the same
circumstances.” The trial cour t determined that the appellants had not been prudent
in atte mpting servic e on the appellees . T his court must thusly determine what is prudent in this situation. Again, the appellants attempted to serve the appellee driver at his home shortly after filing the amended petition. Shortly after the process server was unable to effe ctuate service , counsel for the appellants filed a motion for alternative service thereby attempting to continue to prosecute this matter. It is clear that counsel in this matter used due diligence t o attempt to serve the appellees

. Counsel did not sit id ly by and discontinue prosecuting the matter by not continuing to attempt to achieve service. The pressing issue for this Court in this situation is the time of “unexplained inactivity.” When no explanation is offered, the courts are left with the presumpt ion that the inactivity is due to a lack of diligence and/or carelessness on the part of the plaintiffs. Here, there is a clear and consistent pattern of activity that negates the argument that there is a pattern of inactivity espoused by the appellees
and agreed with by the trial court . Courts have consistently been hes itant to dismiss cases where litigants were moving toward achieving proper service , even if that movement may not have been as brisk a s the court would have preferred in order to preserve th e rights of the plaintiffs.11 Prayer In conclusion, a ppellants pray th at this Honorable Court reverse the trial

cour t's judgment in whole, denying the motion for summary judgment and reinstate claims of the plaintiffs, pursuant to Rule 43.2.(c) of the Texas Rules of Appellate Procedure. Appellants further pray that appellees bear all cost of these proceedings.12 Respectfully s ubmitted: H.L. HARPER & ASSOCIATES, L.L.C.
/s/ Vesta T. Armstrong

_______ _____________________________ VESTA T. ARMSTRONG Texas State Bar No. 00798240 1631 Elysian Fields Avenue New Orleans, Louisiana 70117 (855) 880

- 4673 Office (504) 322

- 3807 Facsimile varmstrong@hlharperandassociates.com and
EDWIN M. SHORTY, JR. & ASSOCIATES A PROFESSIONAL LAW CORPORATION
/s/ Edwin M. Shorty, Jr. EDWIN M. SHORTY, JR., Pro Hac Vice Louisiana State Bar No. 28421 650 Poydras Street, Suite 2515 New Orleans, Louisiana 70130 (504) 207

- 1370 Office (504) 207

- 0850 Facsimile eshorty@eshortylawoffice.com Counsel for Appellants13 Appendix Exhibit A Trial Court Judgment 10/16/2015 Exhibit B Affidavit of Special Process Server 12/12/201414 Certificate of Compliance

– Word Count 1. This brief complies with the type

- volume limitations of Rule 9.4(i)(3)
of the Texas Rules of Appellate Procedure because t his brief contains
2 , 4 28 words, excluding the par ts of the brief exempted by Rule 9.4(i)(1)

. 2. This brief complies with the typeface requirements of Rule 9.4(e) of the Texas Rules of Appellate Procedure b ecause t his brief has been prepared in a proportionally spaced in font size 14.

H.L. HARPER & ASSOCIATES, L.L.C. /s/ Vesta T. Armstrong

_______ _____________________________ VESTA T. ARMSTRONG Texas State Bar No. 00798240 1631 Elysian Fields Avenue New Orleans, Louisiana 70117 (855) 880

- 4673 Office (504) 322

- 3807 Facsimile varmstrong@hlharp erandassociates.com

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