Anna Nicole Smith’s Mother Virgie Arthur Files Defamation Suit Includes Bloggers

There sure is a lot of carrying on over on the dark side Howie fan club thinking that the defendants MUST be served with the lawsuit before the limitations period expires. Not so, as this case and many others show.

209 S.W.3d 695 (Tex.App.—Houston (14th Dist.) 2006), 14-05-00393, Auten
v. DJ Clark, Inc. *

Page 695

*209 S.W.3d 695 (Tex.App.—Houston (14th Dist.) 2006)*

*Evelyn AUTEN and Eldon Auten, Appellants,*

*v.*

*DJ CLARK, INC., d/b/a Double Arches Corporation, Donald E. Clark, and
Janet C. Clark, Appellees.*

*No. 14-05-00393-CV.*

*Court of Appeals of Texas, Fourteenth District, Houston*

*November 2, 2006*

…..
In order to “bring suit” within the applicable limitations period, a
plaintiff must both file suit within the limitations period and use due
diligence to serve the defendant with process. /Gant v. DeLeon,/ 786
S.W.2d 259
,
260 (Tex. 1990); /Belleza-Gonzalez v. Villa,/ 57 S.W.3d 8
,
11 (Tex. App.-Houston [14th Dist.] 2001, no pet.). If a plaintiff files
suit within the limitations period, but serves the defendant after the
limitations period has expired, the date of service relates back to the
date of filing if the plaintiff exercises due diligence in obtaining
service. /Gant,/ 786 S.W.2d at 260; /Brown v. Shores,/ 77 S.W.3d 884
,
887 (Tex. App.-Houston [14th Dist.] 2002, no pet.); /Belleza-Gonzalez,/
57 S.W.3d at 11. A plaintiff is not required to use the highest

Page 699

degree of diligence to procure service, but is required to use the
degree of diligence that an ordinarily prudent person would have used
under the same or similar circumstances. /See Belleza-Gonzalez,/ 57
S.W.3d at 12; /Valdez v. Charles Orsinger Buick Co.,/ 715 S.W.2d 126
,
127 (Tex. App.-Texarkana 1986, no writ); /Beavers v. Darling,/ 491
S.W.2d 711
,
714 (Tex. Civ. App.—Waco 1973, no writ).

To obtain summary judgment on the ground that a suit was not served
within the limitations period, a defendant must show that, as a matter
of law, the plaintiff did not exercise due diligence to effect service.
/See Gant,/ 786 S.W.2d at 260; /Brown,/ 77 S.W.3d at 887. Generally, the
question of diligence is a question of fact, but if no excuse is offered
for a delay in the service of citation, “or if the lapse of time and the
plaintiffs acts are such as conclusively negate diligence, a lack of
diligence will be found as a matter of law.” /Belleza-Gonzalez,/ 57
S.W.3d at 12; /Valdez//,/ 715 S.W.2d at 127. When a defendant has
affirmatively pleaded the defense of limitations and shown that the
plaintiff failed to timely serve the defendant, the burden shifts to the
plaintiff to explain the delay. /Murray v. San Jacinto Agency, Inc.,/
800 S.W.2d 826
,
830 (Tex. 1990); /Brown,/ 77 S.W.3d at 887; /see Belleza-Gonzalez,/ 57
S.W.3d at 11. Once the plaintiff presents an explanation, the burden
shifts back to the defendant to show why that explanation is
insufficient as a matter of law. /Carter v. MacFadyen,/ 93 S.W.3d 307
,
313 (Tex. App.-Houston [14th Dist.] 2002, pet. denied); /see
Belleza-Gonzalez,/ 57 S.W.3d at 11.

We review a summary judgment de novo. /Valence// Operating //Co.// v.
Dorsett,/ 164 S.W.3d 656
,
661 (Tex. 2005). We take as true all evidence favorable to the
non-movant, and we indulge every reasonable inference and resolve any
doubts in the nonmovant’s favor. /Id.

In summation, after limitations expired, approximately two months passed while the Autens attempted unsuccessfully to serve the Clarks personally via a process server and prepared to file motions for substituted service.

We conclude that it was not necessarily unreasonable to attempt personal service for two months before seeking court intervention through motions for substituted service.

The McCabe Interview is up on the Houston New Site now.

You’re welcome. Yes, it was a good interview. They even showed the TMZ article and some of the posts. LOL