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Guillen v. Frels12/8/2005
In this personal injury case, appellant Mary Ann Guillen appeals from a take-nothing summary judgment, based solely on the ground of limitations, in favor of appellee William A. Frels, as personal representative of the Estate of Arnold H. Frels, William's father. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In summary form, the following events culminated in service of process on William Frels ("William" or "Frels") on December 22, 2003:
September 20, 1999 - Guillen and Arnold Frels were involved in the automobile accident giving rise to the present lawsuit;
November 30, 2000 - ArnoldFrels moved to an assisted living facility;
September 19, 2001 - Guillen filed her original petition, indicating Arnold could be served at 2032 Thonig, Houston, Texas;
September 27, 2001 - Citation was issued for Arnold at 2032 Thonig, Houston, Texas;
October 5-15, 2001 - Deputy Constable E.W. Godfrey attempted service on Arnold at 2032 Thonig, and returned the unexecuted citation stating, "Bad Address Per Mr. Betzen 4/01 Called Attorney, No Answer at Phone Number Returned to Court No Response from Attorney";
January 24, 2002 - Harris County Deputy Constable E.L. Turnipseed executed an affidavit regarding attempted service on Arnold at 1107 Appleford Drive, Seabrook, Texas, and stated "I was advised that Defendant was put in a nursing home because of illness, however his son who is his caretaker resides at the above address and citation could be left with him";
January 28, 2002 - Guillen filed a motion for substituted service requesting service on someone over the age of 16 at William's residence, 1107 Appleford Drive;
January 30, 2002 - The trial court signed an order granting Guillen's motion for substituted service at 1107 Appleford Drive;
February 21, 2002 - Arnold died;
March 19, 2002 - William qualified as executor of Arnold's estate;
April 16, 2002 - Deputy Turnipseed received the citation along with the January 30, 2002 order for substituted service;
May 22, 2002 - Officer Turnipseed returned the citation unexecuted, showing three attempts at service, and stated "Return to Court - Defendant Deceased Feb 2002 per son";
June 3, 2002 - The trial court signed an order dismissing the case for want of prosecution;
July 2, 2002 - Guillen filed a motion to reinstate after dismissal without prejudice, attaching the affidavit of attorney Boma O. Allison, who stated, "Plaintiff has tried diligently to serve defendant and he has been avoiding service. Plaintiff has new information whereby defendant can be served";
July 8, 2002 - The trial court signed an order granting Guillen's motion to reinstate;
September 30, 2002 - Guillen filed a motion to retain the case on the docket and included Allison's statement under oath, "We have tried diligently to serve defendant and the constable has indicated that the defendant might be in a nursing home or deceased and we would pray for additional time to amend petition to include Defendant's estate";
October 2, 2002 - The trial court signed an order granting Guillen's motion to retain the case on the docket;
February 21, 2003 - Guillen filed another motion to retain the case on the docket and stated, "Movant has been trying diligently to serve the Defendant and now has conclusive information that Defendant had been dead for some time. Movant would like additional time to amend her pleadings to serve the heirs to Defendant's Estate and prosecute this suit";
February 24, 2003 - The trial court signe
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