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Cooper v. Balderas8/16/2001
return a call only if it is made to her in the first place. Because Massar's affidavit does not establish that calls were actually made to and messages left for Balderas, then his conclusion that she did not return the calls is conclusory.
Other than the single telephone call to Van Wylie in November of 1998 which produced Balderas's telephone numbers, Cooper engaged in no investigation and made no effort to locate Balderas during the three- month period between October 6, 1998 and the unspecified date in January 1999, when she attempted to telephone Balderas. By this unknown date in January, Cooper had been in possession of Balderas's telephone numbers for several weeks, but had never attempted to use the numbers to locate her. A reasonably diligent person in Cooper's position would have engaged in some type of investigation to locate Balderas and serve her during this three-month period. Given that Cooper produced no excuse for her failure to take any action between October 6, 1998 and the call to Wylie, and then from mid-November until January of 1999, Cooper's action in making one call to Wylie is inadequate to raise a fact issue regarding the exercise of due diligence. To the contrary, I would find a lack of diligence as a matter of law. See Boyattia, 18 S.W.3d at 733 (unexplained delay of three months sufficient to conclusively establish lack of diligence as a matter of law).
Although she asserts that Balderas intentionally avoided service by moving and refusing to return telephone calls when the calls were finally made in January, the summary judgment evidence simply does not support Cooper's claim. There is no evidence that Balderas moved after Cooper filed suit and attempted to serve her. The mere fact that Balderas moved after the accident nearly two years earlier does not give rise to an inference that she did so in order to intentionally avoid service. Further, the summary judgment evidence showing that Balderas did not return telephone calls in January does not explain or excuse Cooper's failure to undertake any investigation during the previous three-month period and it does not create a fact issue in that regard. It is that inactivity that must be focused upon in determining, as a matter of law, that Cooper failed to exercise due diligence. Consequently, I would find that the trial court did not err in granting the motion for summary judgment. Because the majority opinion concludes otherwise, I respectfully dissent.
ANN CRAWFORD McCLURE, Justice
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