HOUSTON – A state appeals court has rejected a man's appeal in his failed personal-injury case, saying he was not diligent enough in his attempts to serve process on one of two companies he alleged were liable in his claims.
The Texas 14th Court of Appeals rejected Joseph Milcoun's claim that a lower court was wrong when it granted a motion of summary judgment against him because he explained all the periods of inactivity before having the company served.
Milcoun claimed he "acted as a reasonable person would in the same or similar circumstances" because another company he was suing claim to be the "proper defendant," the background portion of the appeals court's opinion said.
The Texas Fourteenth Court of Appeals Justice Ken Wise
Milcoun appealed the Harris County 333rd District Court's decision to grant summary judgment in favor KLI Inc., formerly known as Keller Ladders, on an affirmative defense of limitations. Milcoun filed suit against KLI over an injury he allegedly suffered in May 2014.
Milcoun's lawsuit also named Werner Co., and that company's name appears alongside that of KLI in the appeals court's opinion, but Werner is not a party in the appeal.
The appeals court affirmed the district court's ruling.
"Because the record demonstrates as a matter of law that Milcoun failed to exercise due diligence in serving KLI, the trial court did not err in granting summary judgment based on the running of the statute of limitations," the appeals court said in its 12-page opinion issued Oct. 9. "Accordingly, we overrule Milcoun’s sole issue and affirm the trial court’s judgment."
Appeals Court Justice Ken Wise wrote the opinion in which Justice John Donovan and Justice Kevin Jewell concurred.
Milcoun filed his lawsuit against KLI about four months before the statute of limitations expired but did not serve KLI until more than 18 months after he filed the lawsuit, according to the background portion of the appeals court's opinion.
Milcoun's suit, filed in January 2016, was against Werner and Keller Ladders following his alleged injury by a Keller ladder after "he determined that Keller Ladders had been acquired by Werner and was no longer in business," the background portion of the appeals court's opinion said. "Nevertheless, out of an abundance of caution, Milcoun decided to sue both entities."
Werner was served the following Feb. 4, 2016, and Milcoun tried to serve Keller Ladders via its registered agent, CT Corporation System, but CT claimed it had withdrawn as registered agent and refused service. Milcoun made other unsuccessful attempts to serve Keller Ladders via other entities before filing a motion in June 2017 seeking substituted service by publication on Keller Ladders, which the district court granted the following month.
"It is undisputed that Milcoun obtained service on Keller Ladders by publication on Aug. 10, 2017," the appeals court's opinion said.
As Milcoun's attempts to serve Keller Ladders continued, in October 2016, a Werner attorney emailed Milcoun's attorney to say the ladder involved in the alleged injury had been manufactured by Keller Ladders prior to Werner's purchase, which excluded "all old/tail liabilities."
Thereafter, Werner continued to argue that it had not manufactured or designed the ladder and, in November 2016, filed a motion for a no-evidence summary judgment. The court granted that motion the following March and also granted Werner's request to sever Milcoun's claims, which made the summary judgment final.
Then in October 2017, KLI filed an answer in Milcoun's case in which it asserted affirmative defense of limitations and then moved for a traditional summary judgment based on statute of limitations expiration. The district court granted KLI's motion the following month.