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Simms v. Wise8/23/2001
Roderick Simms appeals from a summary judgment granted in favor of Steve Wise on the affirmative defense of limitations. We affirm.
FACTUAL AND PROCEDURAL SUMMARY
On July 27, 1996, Simms and Wise were involved in an automobile accident. On July 24, 1998, a mere three days before the statute of limitations expired, Simms filed a personal injury suit against Wise for damages allegedly resulting from the accident. For reasons not reflected in the record, Simms did not attempt service until September 24, 1998. Wise had indicated on the driver information form provided by the Dallas Police Department that he resided at 7524 Douglas and he also gave a post office box address in Hurst, Texas. Despite this information, Simms alleged in his petition that Wise could be served at his place of employment, Max Foods, purportedly located at 7525 Douglas Lane in Fort Worth, Texas. As might be expected, the constable attempting service reported that Wise was not found at the address. On March 18, 1999, the trial court dismissed the cause of action for want of prosecution, but Simms' counsel, William T. Hughey, succeeded in having it reinstated, alleging in the reinstatement motion that Simms had retained an investigator and he intended to attempt service by publication. Indeed, in early February, Simms had retained the services of Michael Christopher to locate Wise. All of Christopher's efforts to locate Wise occurred on February 9 and 10 of 1999:
• He conducted a driver's license search for Wise at 7524 Douglas Lane in Fort Worth, Texas but found no current licenses corresponding to that information;
• He conducted a computer search of the telephone number provided by Wise on the driver information form but found no match;
• He drove to 7524 Douglas Lane in North Richland Hills, Texas, left his card on the door, but never received a return call; and
• He ran the license plate of the vehicle driven by Wise in the accident and found that it was registered to a person named Debra Wise. Christopher telephoned Debra Wise who told him that Steve Wise did not live at that address and she did not know anyone by that name. When Christopher explained to her that Wise had been involved in an accident, she stated that it was a "mistake and it had already been taken care of."
Shortly after dismissal of the action, Hughey requested that Wise's counsel, Janet Colaneri, accept service for her client or provide an address for him. Colaneri declined, stating that she was not authorized to accept service but she requested, as a professional courtesy, that Hughey notify her when he obtained service on Wise. Hughey agreed to send her a copy of the service by publication. Simms filed an affidavit for citation by publication on June 3, 1999, and citation issued on July 29, 1999. Publication occurred on August 2, August 9, August 16, and August 23, 1999. Because Simms failed to pay a fee necessary to finalize service by publication, however, the citation was not immediately returned to the trial court clerk. Apparently unaware of Simms' efforts to serve Wise, the trial court again dismissed the case for want of prosecution on September 16, 1999, and Simms' counsel filed a motion to reinstate on October 15, informing the court that citation by publication had been accomplished but it had not been returned due to Simms' failure to pay a fee. After Simms finally paid the fee, the citation was returned on November 2, 1999. Hughey later notified Colaneri that he had obtained service by publication and had set the matter for a default judgment. Wise immediately filed an answer on December 29, 1999. The trial court appointed an ad litem to review the service b
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