Aguilar v. Dojo Enterprises, Inc  (Tex.App.- Houston [1st Dist.] Oct. 8, 2009)(Massengale)
(take-nothing judgment in personal injury suit affirmed) (statute of limitations and
due diligence in
serving defendant, deemed admissions, waiver of arguments on appeal on account in inadequate
Justice Massengale   
Before Chief Justice Radack, Justices Bland and Massengale
01-07-00903-CV Estelita Aguilar v. Dojo Enterprises, Inc. d/b/a Party City   
Appeal from 127th District Court of Harris County
Trial Court Judge:
Hon. Sharolyn Wood


Estelita Aguilar appeals the trial court’s take-nothing judgment in her personal injury suit, which arose
from an incident at a Party City store. Aguilar contends that the trial court abused its discretion and
denied her due process of law by: (1) refusing to continue the trial to permit two eyewitnesses and a
doctor to testify; (2) granting a take-nothing judgment in favor of appellee, Dojo Enterprises, when the
trial court previously denied a motion for summary judgment based on limitations and Aguilar argued
that Dojo Enterprises’ insurance carrier was aware of the incident; (3) ruling that certain admissions
were deemed; and (4) excluding certain medical andbilling records.

We affirm.


While shopping at a Party City store on January 15, 2002, a box of plates fell on Aguilar’s head. Aguilar
fell to the floor, vomited, and passed out. An ambulance took her to a nearby hospital, where she later
woke up. Meanwhile, the store manager filled out an incident report. After the incident, Aguilar sought
medical attention for her injuries, which she testified included persistent vertigo.

During 2003, Aguilar, through her attorney, communicated with Dojo Enterprises’ insurance carrier
regarding the incident. In March 2003, a claims specialist wrote to Aguilar’s attorney, requesting all
medical bills and an authorization for release of medical information, which Aguilar signed several weeks

On January 14, 2004, Aguilar sued Dojo Enterprises, d/b/a Party City. Approximately two weeks later,
another claims specialist wrote to Aguilar’s attorney, referencing a January 2003 letter that Aguilar’s
attorney had sent and requesting supporting documentation.

In June 2005, Aguilar’s attorney sent Dojo Enterprises’ insurance carrier a demand letter, in which he
stated, “[T]his letter represents an attempt to settle the claim of above referenced client without the
necessity of litigation.” On January 23, 2006, Dojo Enterprises answered the lawsuit, asserting the
affirmative defense of limitations. On March 1, 2006, Aguilar filed her first amended original petition,
which included a certificate of service of the same date.

In June 2007, the trial court held a bench trial in this matter. Only Aguilar testified. She described what
she recalled about the incident, and she described her alleged injuries. She attempted to introduce
medical records accompanied by business records affidavits, but the trial court sustained Dojo
Enterprises’ objections that the records had not been produced during discovery and that the affidavits
were not timely filed.

Aguilar’s attorney requested a continuance to allow him to present the testimony of two eyewitnesses
and a treating physician. The trial court denied the request, noting that the eyewitnesses could not
supply the necessary, lacking testimony as to medical damages and that the treating physician’s name
had not been disclosed in response to Dojo Enterprises’ discovery requests.

Finally, Dojo argued that the case was barred by the two-year statute of limitations. In response, Aguilar’
s attorney argued that Dojo had actual notice of the incident and the claim because he had been in
communication with Dojo Enterprises’ insurance carrier.

The trial court stated its findings of fact from the bench:

In reviewing the evidence and the documents and the procedural history that we find here today, the
medical charges have not been sufficiently proved to support any recovery for medical expenses by the
plaintiff. Second finding by the Court is that service was more than two years after the date of the
incident. The statue of limitation is two years. And the plaintiff has failed to prove any due diligence in
that service was a huge failure to serve the citation within two years of the incident. The defendant’s
objections and the motion to exclude the documents and witnesses who were not timely disclosed is
granted. If you have a request for admission here on file, but if not, properly denied they are deemed
admitted, and we have those.

From examining everything, I have no doubt that this lady may have had this box fall on her head, but
from the proof offered here in trial, she’s not entitled to any recovery from the Court. The plaintiff will
take nothing and the case is dismissed.

Aguilar filed a motion for new trial and a motion to vacate the take-nothing judgment. The motion for new
trial was overruled by operation of law, and the motion to vacate the judgment was expressly denied.

Aguilar appeals.

Requests for Continuance

In her first and sixth issues, Aguilar contends that the trial court “abused its discretion and denied [her]
due process and equal protection under the law” when the trial court denied Aguilar’s requests to
continue the trial to allow two eyewitnesses and one treating physician to testify. Aguilar cites to no legal
authority for either of these issues. See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and
concise argument for the contentions made, with appropriate citations to authorities and to the record.”).
Accordingly, we hold that Aguilar has inadequately briefed these issues and, thus, waived them.
Footnote See id.

Take-Nothing Judgment

In her second issue, Aguilar argues that the trial court erred by granting a take nothing judgment in
favor of Dojo Enterprises because Dojo Enterprises’ insurance adjusters told Aguilar that they would
“investigate the accident and handle the injuries and damages” sustained by Aguilar. The trial court
made clear that it granted the take-nothing judgment because Aguilar failed to produce admissible
evidence of causation and damages and because Aguilar failed to comply with the two-year statute of
limitations. In addition, Aguilar cites no legal authority for this proposition. See Tex. R. App. P. 38.1(i)
(“The brief must contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.”). Accordingly, we hold that Aguilar has inadequately briefed
this issue and, thus, waived it. See id.

We overrule this issue.

Statute of Limitations and Due Diligence

In her third issue, Aguilar complains that the trial court rendered a take-nothing judgment despite having
previously denied Dojo Enterprises’ motion for summary judgment regarding the statute of limitations.

No motion for summary judgment or order thereon appears in the appellate record. After the close of
evidence, Dojo Enterprises urged its affirmative defense of the statute of limitations. Aguilar’s attorney
told the trial court, “I believe all of this argument has been presented.” At that time, the trial court stated
on the record, “[T]here is an affirmative defense pled in the case which they are entitled to present.
There was no summary judgment denying the affirmative defense, if I remember right.”

To comply with the statute of limitations, a plaintiff must file suit within the applicable limitations period
and use diligence to serve the defendant with process. Proulx v. Wells, 235 S.W.3d 213, 215 (Tex.
2007). If service is diligently effected after limitations has expired, the date of service will relate back to
the date of filing. Id.; accord Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990); Zale Corp. v.
Rosenbaum, 520 S.W.2d 889, 890 (Tex. 1975) (per curiam). Due diligence depends on: (1) whether the
plaintiff acted as an ordinary prudent person would act under the same circumstances; and (2) whether
the plaintiff acted diligently up until the time defendant was actually served. Lawrence v. Geico Gen. Ins.
Co., No. 01-07-00873-CV, 2009 WL 1886177, at *3 (Tex. App.—Houston [1st Dist.] July 2, 2009, no
pet.) (mem. op.); accord Eichel v. Ulla, 831 S.W.2d 42, 44 (Tex. App.—El Paso 1992, no writ). Whether
the plaintiff acted with due diligence is a question of fact. Eichel, 831 S.W.2d at 43. Only when the
plaintiff offers no valid explanation for the delay in service may the question of due diligence be
answered as a matter of law. Id. at 44.

Aguilar’s claim was subject to the two-year statute of limitations. See Tex. Civ. Prac. & Rem. Code Ann. §
16.003(a) (Vernon 2002) (stating two-year statute of limitations for personal injury tort claims). Aguilar’s
alleged injury occurred on January 15, 2002. She filed suit on January 14, 2004. No evidence of the
date of service was introduced at trial, and we find no such evidence in the appellate record. However,
Dojo Enterprises answered the lawsuit on January 23, 2006, raising the affirmative defense of limitations
at that time. At trial, Aguilar offered no evidence and no argument regarding her attempts to serve Dojo
Enterprises with process. Instead, Aguilar’s attorney described the interactions he had with the
insurance adjusters for Dojo Enterprises. In the appellant’s brief, Aguilar’s attorney noted that Dojo
Enterprises had actual knowledge of the lawsuit on July 19, 2005, because he faxed a copy of Aguilar’s
original petition to an insurance adjuster.

None of this was sufficient to show due diligence in service of process. Even actual knowledge is not a
substitute for service of process. Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990) (“Absent service,
waiver, or citation, mere knowledge of a pending suit does not place any duty on a defendant to act.”);
see Tex. R. Civ. P. 21 (“Every pleading . . . shall be served on all other parties.”). We hold that the trial
court did not err by finding in favor of Dojo Enterprises on the statute of limitations.

We overrule this issue.  

Deemed Admissions

In her fourth issue, Aguilar challenges the trial court’s ruling that certain admissions were deemed.
Specifically, the trial court ruled that if the admissions were on file and not properly denied, they were
admitted. Aguilar argues that the trial court should not have deemed the admissions because
“Defendant’s questions were somewhat confusing” because the request for admissions was commingled
with interrogatories. Dojo Enterprises argues, “It is uncontroverted that Appellant failed to respond to
Appellee’s written discovery requests propounded to her prior to the trial. . . . All of the discovery
propounded to Appellant by Appellee was within the trial court’s record at the time judgment was

Neither the request for admissions nor Aguilar’s response appear in the appellate record. Likewise, no
“motion for leave to submit and file” discovery responses appears in the appellate record either. Under
the Texas Rules of Civil Procedure, “[i]f a response [to a request for admissions] is not timely served,
the request is considered admitted without the necessity of a court order.” Tex. R. Civ. P. 198.2(c). We
cannot say that a trial court abuses its discretion in considering admissions that are deemed in
accordance with law.

We overrule this issue.

Medical Records

In her fifth issue, Aguilar contends that the trial court abused its discretion by excluding her medical and
billing records. At trial, Dojo Enterprises objected to these documents because they were not disclosed
in response to written discovery requests and because the accompanying business records affidavits
were not timely filed. Aguilar refers us to Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex. 1985), and Weiner
v. Wasson, 900 S.W.2d 316, 318 (Tex. 1995), to support her contention that she was denied due
process. Neagle held that the two-year statute of limitations violated the open courts provision of the
Texas Constitution in a medical-malpractice case because the plaintiff could not have discovered the
injury within the two-year limitations period. Neagle, 685 S.W.2d at 12. Weiner held that the two-year
statute of limitations violated the open courts provision of the Texas Constitution as applied to a minor
alleging medical malpractice. Weiner, 900 S.W.2d at 321. At trial, Aguilar testified that she was 70 years
old and that her alleged injury occurred on January 15, 2002. Neither Neagle nor Weiner applies to her

To the extent that Aguilar complains about the trial court’s ruling, her issue is waived. Footnote See Tex.
R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record.”).

We overrule this issue.


We affirm the judgment of the trial court.

Michael Massengale


Panel consists of Chief Justice Radack and Justices Bland and Massengale.