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Guillen v. Frels12/8/2005
d an order retaining the case on the docket;
October 31, 2003 - Guillen filed an amended petition naming William Frels as personal representative of the estate of Arnold Frels.
November 20, 2003 - Process server Roderick M. McGowan executed an affidavit, in which he indicated three unsuccessful attempts at service at 1107 Appleford Drive;
December 3, 2003 - Guillen filed a motion for substituted service;
December 4, 2003 - The trial court signed an order granting substituted service by taping the petition to the door;
December 22, 2003 - William Frels was served.
William Frels answered, asserting the defense of limitations, among other matters. He then filed a hybrid traditional and no-evidence motion for summary judgment. Frels alleged the following grounds: (1) Guillen's lawsuit is time barred; (2) Guillen failed to accomplish service with due diligence, and thus did not toll the running of limitations; and (3) alternatively, for "no evidence" summary judgment purposes, Guillen could not show the exercise of due diligence with regard to service. In support, he attached his affidavit, recounting Arnold's relocation to a nursing home and subsequent death, William's receipt of business cards from process servers, William's calls to the process servers, and service by notice taped to his door during the last week of December, 2003. He also attached a copy of the letters testamentary, showing his qualification as independent executor of Arnold's estate on March 19, 2002.
Guillen responded, arguing she exercised due diligence in serving Arnold before his death. She claimed the following categories of summary judgment proof raised a genuine issue of material fact on the issue of due diligence: (1) the pleadings and other documents in the trial court's file and (2) attached documents consisting solely of Allison's, Turnipseed's, and McGowan's affidavits, a January 24, 2002 facsimile coversheet from Turnipseed, and the October 2001 unexecuted return for service at 2032 Thong.
In his reply to the response Frels argued Guillen's explanations for the delay failed as a matter of law. He listed multiple"significant time periods" as exemplifying Guillen's lack of diligence: (1) the ten month period between Arnold's move to assisted living and Guillen's filing of the lawsuit, during which Guillen could have discovered Arnold's new address; (2) the three month period between the October 2001 return of unexecuted service and Guillen's January 2002 motion for substituted service, (3) the two and a half month period from the January 30, 2002 order for substituted service and the constable's April 16, 2002 receipt of the order, (4) the seventeen months between the constable's May 22, 2002 return of unexecuted service, noting Arnold's death and Guillen's October 2003 filing of her amended petition naming the administrator of Arnold's estate, and (5) the eight months--contained within the latter period--between the trial court's February 24, 2003 order retaining the case on the docket and Guillen's filing of her amended petition.
Frels also disputed the representation in Allison's July 2, 2002 affidavit that the defendant had been avoiding service. Frels referred to the May 22, 2002 return containing the statement "Defendant deceased Feb 2002 per son." Frels also referred to his affidavit, in which he stated he twice returned calls to process servers who had left business cards on his door.
The trial court granted Frels's summary judgment motion without stating the grounds and ordered Guillen take nothing.
DISCUSSION
I. Issues Presented and Standard of Review
Page 1 2 3 4 Texas Personal Injury Attorneys
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