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 

PEREZ, 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

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 12/28/2015 10:06:00 AM CHRISTOPHER A. PRINE Clerk
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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

Appellees:

Jared Efurd 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 75201
2

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, 786 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. Johnson, 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 defense of statute of limitations on September 

17, 2015 which the trial court granted on October 16, 2015. The appellants now 

appeal from said judgment. 

Issue(s) Presented

Did the trial court commit reversible error 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 vehicle 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 of 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 petition 
5

for damages on April 9, 2014. Issuance of citation was properly requested on the 

same day. The clerk of court then issued 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. The 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 attempted 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, 

2014, 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 barred by the 

applicable statute of limitations as appellants failed to use the necessary diligence 

in securing service of process on appellees after the limitation period expired.

Since the filing of the appellees Original Answer, the parties have engaged 

in discovery, including written discovery and 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.

Summary 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.
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Argument

The trial court ruled contrary to Texas law when finding the appellants 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); 

Randall'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). In 
8

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 matter 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 the 

applicable limitations period and use diligence to serve the defendant with 

process.1 If service is diligently effected after limitations has expired, the date of 

service will relate 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 diligence 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. DeLeon, 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, 1993 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 last known address of 

the appellees. The appellants made numerous attempts to serve the appellees at 

their last known address. When the appellants discovered the correct address for 

the appellees, appellants 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 attached Exhibit B in Appendix). When personal 

service was not accomplished through the process server, appellees requested 

substituted service in a timely fashion. Substituted service was accomplished and 

appellees filed an answer. The issues and facts regarding the delay were relayed to 

the trial court, which in violation of law, granted the appellees summary 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 

service’ in this matter, moving to different addresses throughout the state. The 

appellants claims cannot be dismissed solely because the appellees were ‘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 court determined that the appellants had not been prudent 

in attempting service on the appellees. This 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 effectuate 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 to attempt to serve 

the appellees. Counsel did not sit idly 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 

presumption 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 hesitant to dismiss 

cases where litigants were moving toward achieving proper service, even if that 

movement may not have been as brisk as the court would have preferred in order to 

preserve the rights of the plaintiffs.
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Prayer

In conclusion, appellants pray that this Honorable Court reverse the trial 

court'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 submitted:

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 Appellants 
13

Appendix

Exhibit A Trial Court Judgment 10/16/2015

Exhibit B Affidavit of Special Process Server 12/12/2014
14

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 this brief contains 

2,428 words, excluding the parts 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 because this 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@hlharperandassociates.com 
UnofficialCopyOfficeofChrisDanielDistrictClerk
CAUSE #201419704 

AFFIDAVIT FOR TRCP RULE 106 

STATE OF TEXAS 

COUNTY OF HARRIS 

Before me, the undersigned authority, on this day personally appeared to me, who, 

being by me duly sworn upon his oath, deposed and stated as follows: 

My name is GREGORY D. HARPER. I am over the age of 18 years, a citizen of the 

United States of America and have never been declared incompetent for any purpose. I 

have personal knowledge that the facts set forth in this affidavit are true and correct. 

I am authorized by written order to serve citations and notices in all Harris District 

and Coimty Courts. 

On the of September 20141 was assigned process in the above referenced 

cause styled Juan Soto vs.Jared Efiird I was instructed to attempt service upon 

defendant at 921 Glory Drive Waxahachie,texas 75165 This is in Ellis County, 

which I have determined to be his Abode. I have made the following attempts to 

serve process to no avail: 

DATE AND TIME 

09/18/14 7;00pm 

09/20/14 9:30 am 

09/23/14 8:30pm 

09/24/14 5:30pm 

REASON FOR NOT SERVING 

Knock on Respondent door no answer attached my card to his front door. 

Respondent not in per adult female 

Respondent not in per his mother 

Respondent not in per adult female who was not his mother 

" I have made diligent efforts to obtain personal service upon the named person at the above locations. I 

have made these attempts at various hours of the day. I have left my business card, but to date have heard 

nothing from this person. Based on the foregoing, I conclude that I will be unable to obtain good service 

without an order directing me to serve anyone over the age of sixteen (16) years or directing me to firmly 

attach the process to the main entrance at the above location. Either of which means being reasonably 

effective based on the circumstances I encountered to give said persons notice of the above referenced 

action." 

Further affiant sayeth not. ^ ^ , » ro,/ i 

Exp-08/31/2017 

'FIANT SC#576 

My name is Gregory Harper my date of birth is 07/13/1951, and my address is 7510 Holly Hill Dr. 

Unit 127 Dallas,Texas 752311 declare under penalty of perjury that the foregoing is true and correct 

Executed in Dallas Coupty, State of Texas 24* Day of September 2014 

10/29/20142:05:48PM

ChrisDaniel-DistrictClerk

HarrisCounty

EnvelopeNo:2996400

By:SONNIER,ARRONW

UnofficialCopyOfficeofChrisDanielDistrictClerk