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Clay v. Oden8/18/2000
on on Oden. See Holt v. D'Hanis State Bank, 993 S.W.2d 237, 241 (Tex.App._San Antonio 1999, no pet.); Perry, 741 S.W.2d at 534. Consequently, there are no genuine issues of material fact as to whether appellants exercised diligence in serving process on Oden. Accordingly, we overrule appellants's first point of error.
Default Judgment
In their second point of error, appellants contend the trial court erred in not granting their default judgment after Oden was served with citation but failed to file an answer. Appellants argue the trial court used an attorney ad litem to assist in determining whether appellants used diligence, then granted the attorney ad litem a continuance. Since the trial court did not rule the citation by publication was deficient, it abused its discretion in granting the continuance instead of granting a default judgment to appellants.
Appellants's brief contains no citations to authorities for their second point of error. Rule 38 of the Texas Rules of Appellate Procedure requires appellant's brief must contain a succinct, clear, and accurate statement of the arguments in the body of the brief, and a clear and concise argument with citations to authorities and to the record. See TEX. R. APP. P. 38.1(g), (h). Because appellants's brief on this point does not comply, we overrule their second point of error.
Conclusion
We conclude appellants's failure to have process served on Oden until almost eight months after filing suit constitutes a lack of diligence as a matter of law. Thus, the two-year limitations period expired on August 5, 1997, and appellants's cause of action was barred as a matter of law. Accordingly, the trial court did not err in granting Oden's summary judgment based upon the application of the statute of limitations. We affirm the trial court's judgment.
TOM JAMES, JUSTICE
Do Not Publish
Tex. R. App. P. 47
990674F.U05
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