State Office of Risk Management v. Jurode1/13/2005
On April 17, 2002, appellant, State Office of Risk Management ("SORM"), filed a subrogation action against appellee, Eva Jurode, as a result of an automobile accident occurring on May 8, 2000. The trial court granted Jurode's motion for summary judgment on a limitations ground, because SORM lacked reasonable diligence in securing service upon Jurode. SORM contends that the trial court erred in granting summary judgment. We affirm.
Facts and Procedural History
On May 8, 2000, Brenda Sharlow, in her capacity as an employee of the Texas Department of Public Safety, conducted Jurode's driver's license driving test. During the test, Jurode lost control of the vehicle and drove into a concrete barrier. Sharlow reported her resulting injuries to her employer and subsequently received workers' compensation benefits from her employer's insurance carrier, SORM. SORM alleges that it paid $17,856 in medical and indemnity benefits to Sharlow. Pursuant to the Texas Labor Code, SORM filed a subrogation action against Jurode on April 17, 2002, to recover the workers' compensation benefits it distributed to Sharlow. Tex. Lab. Code Ann. ยงยง 417.001 (Vernon 1996 & Supp. 2004-2005). In its petition, SORM alleged Jurode could be personally served at her residence, and included an address. On May 2, 2002, the constable unsuccessfully attempted to serve the citation and petition on Jurode. The record does not indicate any other attempts to serve Jurode in 2002.
In June 2002, the attorney in charge of this matter departed, and the case was reassigned to another assistant attorney general. The new attorney did not examine this matter until August 2002. As a result, SORM did not attempt to locate Jurode for service for over a three-month period. In August 2002, SORM unsuccessfully searched for an address for Jurode. In an affidavit filed with its motion for new trial, SORM maintains that the United States Postal Service did not have a valid forwarding address for Jurode, she was not listed in directory assistance, SuperPages.com, Anywho.com, the Harris County Voter Registration rolls, the Harris County Appraisal District records, or the City of Houston Water Utilities records. The affidavit also avers Jurode's automobile insurer did not possess a valid address or telephone number for her, nor did she leave a forwarding address or other contact information with the apartment manager at her prior residence.
On September 17, 2002, the trial court dismissed this case for want of prosecution. One month later, SORM apparently filed a motion to reconsider, although it is not a part of the record. In November 2002, the trial court reinstated SORM's lawsuit against Jurode. SORM contends that the reinstatement impliedly authorized service by publication. The record before us, however, does not include any request to serve Jurode by publication, any affidavit demonstrating the need for such service, nor any order authorizing service by publication.
Upon discovery that service by publication did not occur, SORM requested a second citation for publication. The court clerk apparently later issued the citation, because the Houston Chronicle published the citation once per week from February 28, 2003 until March 21, 2003. SORM did not include the newspaper notices in its response to Jurode's motion for summary judgment, but attached them to its motion for new trial.
Jurode answered SORM's lawsuit on April 14, 2003. Jurode moved for summary judgment, contending that SORM did not exercise due diligence in its attempt at service, and thus its suit is time-barred. The trial court granted the motion. SORM moved for a new trial, which the trial court denied. This appeal foll
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