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FILED
11/14/2023 5:01 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Debra Clark DEPUTY
QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C.
A PROFESSIONAL CORPORATION
ATTORNEYS AND COUNSELORS
BRYAN STREET, SUITE 1800
2001
DALLAS, TEXAS 75201
W. Edward Carlton Direct: (214) 880-1 870
ecarlton@qslwm.com Fax: (214) 871 -21 1 1
November 14, 2023
Honorable Dale B. Tillery
Judge, 134th Judicial District Court
George L. Allen, Sr. Courts Building
600 Commerce Street, 6th Floor West (Old)
Dallas, TX 75202
Re: Freddie Taylor and Beverly Taylor v. Peaceful Hope Baptist Church, et al;
Cause No. DC-18-11857; 134th District Court of Dallas County, Texas
Dear Judge Tillery:
At the hearing this morning, Plaintiff” s counsel argued that, as long as his firm was diligent
in initially requesting citation and made efforts to serve Defendant Peaceful Hope after receiving
the citation, the Court should disregard the delay from September 6, 2018, after he requested
citation, to December 28,2018, when citation was issued, because “it was not under the control of
the Plaintiffs.” I disagreed that this was supported by Texas law. You advised that you would
read the cases cited by Plaintiff’ s counsel, and if I felt that additional authority was necessary, I
could respond.
Having read Plaintiffs’ newly filed Reply, I see that this novel argument is made on pages
24-25, notably with no citation of any legal authority. As such, it should be disregarded in its
entirety. However, to give Plaintiff the benefit of the doubt, I have reviewed the four (4) cases
cited in the section of the Reply in which Plaintiff makes this argument. Those cases are discussed
below.
In Proulx v. Wells, 235 S.W.3d 213 (2007), there was no significant delay in the issuance
of citation. The delay at issue was approximately 9 months from the time citation was received
until the defendant was served. In that regard, the Court noted that summary judgment evidence
showed plaintiff utilized two (2) process servers, who collectively made 30 attempts to serve the
defendant at five (5) different addresses. A private investigator hired in plaintiff’ s efforts attributed
difficulties to the defendant’s “doing his best to avoid service from courts and creditors.” Id. at
217. The Court found that evidence presented of plaintiff’s “continuous service attempts, coupled
with evidence that [defendant] was deliberately avoiding service. . .failed to conclusively establish
lack of diligence.” Proulx does not support Plaintiff s novel argument.
Bilinsco Inc. v. Harris County Appraisal District, 321 S.W.3d 648 (Hou. [1“ Dist.] 2010),
is cited by Plaintiff for the proposition that a party “may ordinarily rely on the clerk to perform his
duty within a reasonable time.” The case was a property tax appraisal dispute. After mailing copies
of his notice of appeal to the Appraisal District (the “District”) and the Appraisal Review Board
Honorable Dale B. Tillery
November 14, 2023
Page 2
(the “Board”), plaintiff filed suit and arranged to serve citation on both defendants, but only the
Board was served. The Board answered, and 10 months later both filed a plea to the jurisdiction.
When that was denied, they filed a Motion for Summary Judgment, which the trial court granted.
Bilinsco does quote the above language from Boyattz'a v. Hinojosa, 18 S.W. 3d 729, 733-
34 (Tex. App—Dallas 2000, pet. denied). However, not mentioned by Plaintiff, it also cites
Boyattia for the proposition that, “When, however, a party learns, or by the exercise of diligence
should have learned, that the clerk failed to issue citation, ‘it is incumbent upon the party to ensure
the job is done.” Bilinsco, 321 S.W.3d at 652. The Bilinsco Court then examined the record for
any effort that Plaintiff Bilinsco made to check on service, and found, “There is none.” Id. Holding
that the record established Bilinsco’s lack of diligence in procuring service, the summary judgment
was affirmed. Id. Bilinsco does not support Plaintiff s novel argument.
In Boyattz‘a v. Hinojosa, 18 S.W. 3d 729, 733-34 (Tex. App—Dallas 200, pet. denied), the
plaintiff filed her petition the day before the statute of limitations. The clerk’s office provided one
defendant’s citation within two weeks but did not deliver the other defendant’s citation for three
(3) months. Id. at 732. Boyattz'a is cited by Plaintiff for the proposition that, “two weeks [was] not
an unreasonable amount of time to allow [the] clerk to perform duties” and “Even when a district
clerk delays in issuing or delivering a citation, ‘the passage of time alone is not itself controlling
on the issue of a party’s diligence.”’ However, as reflected above, the more important holding in
Boyattia, not mentioned by Plaintiff, was that “when a party learns, or by exercise of diligence
should have learned, that the clerk has failed to fulfill his duty [to deliver citations as directed], it
is incumbent upon the party to ensure that the job is done.” Id. at 734; citing Buie v. Couch, 126
S.W. 2d 565, 566 (Tex. CiV App.7Waco 1939, wrt ref’ d). The Boyattia court concluded that the
plaintiff failed to exercise due diligence because “an unexplained three month delay is not a
reasonable time for the clerk to deliver a citation as directed by a party”. Id. “Therefore, [the
plaintiff ] should have known the clerk was not fulfilling his duty. . .. and was obligated to make
an effort to ensure that delivery was accomplished. Id. Noting that a lengthy affidavit by Boyattia’s
attorney gives a detailed explanation of actions taken after the citation was delivered, “there [was]
no mention of any action taken during the three-month period the. . .citation remained with the
clerk.” Id. As such, the Boyattia court concluded that Boyattia’s failure to act during the clerk’s
three-month delay constituted lack of diligence as a matter of law. Id. Boyattia does not support
Plaintiff s novel argument.
Finally, while a full citation is not included, Plaintiff attempts to cite Shaw v. Lynch, No.
01-15-00040-CV, 2016 WL 1388986 (Tex. App.-Hou. Apr. 7, 2016) (Not Reported in S.W. Rptr.),
ostensibly for the proposition that no evidence suggests that Plaintiff “wholly ignore[d]” their duty
to timely procure and effect service on Defendant. [Reply, p. 25]. In Shaw, the plaintiff filed suit
on December 26, 2012. Citation was issued the next day, but the process server did not receive it
until January 22, 2013, and citation was served on February 20, 2013. Id. at *1. The plaintiffs
counsel asserted that the delay in service was due to an error in the district clerk’s office.
Importantly, counsel’s affidavit noted that “after ‘four Mondays had elapsed since the requested
citation’ and neither an executed return of service nor an answer had been filed” he contacted his
process server and instructed him “to locate the issued citation and serve the defendant ‘as
expeditiously as possible.’” Additionally, testimony of the process server showed that once he
received process, he made numerous calls to process servers and, when unsuccessful “directed a
Honorable Dale B. Tillery
November 14, 2023
Page 3
fellow process server to drive from Montgomery County to Beaumont to serve the defendant.” Id.
at *3. Because of the detailed factual evidence of the plaintiffs counsel’ s active investigation when
no return was filed Within the time expected and his directive to the process server to locate and
serve the defendant “as expeditiously as possible”, the Shaw court concluded that the evidence
raised a genuine issue of material fact. No such detailed factual evidence of any effort by Plaintiff
during the 113 days between September 6, 2018, after citation was requested, to December 28,
2018, when citation was issued, was presented in this case. Instead, the only affidavit makes the
conclusory statement, with no factual support whatsoever, that attorneys at the firm “made diligent
efforts to request citation and effectuate service.” Shaw does not support Plaintiffs novel
argument.
Neither Plaintiffs’ Motion for Rehearing and Reconsideration nor Plaintiffs untimely
Reply provide any new evidence, and certainly neither provide any justifiable explanation of
plaintiffs failure to take any action during the 113 days it took for the clerk’s office to issue
citation. Plaintiffs Motion for Rehearing and Reconsideration should be denied.
Respectfully yours,
/s/ W. Edward Carlton
W. Edward Carlton
cc: Dagmawi Getachew
Lalah Johnson
Greg Winslett
firm
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Melissa Miranda on behalf of Edward Carlton
Bar No. 03820050
mmiranda@qslwm.com
Envelope ID: 81639986
Filing Code Description: Correspondence - Letter To File
Filing Description: DEFS LETTER TO COURT
Status as of 11/15/2023 10:47 AM CST
Associated Case Party: FREDDIE TAYLOR
Name BarNumber Email TimestampSubmitted Status
Lalah LJohnson johnson@kelleyfirm.com 11/14/2023 5:01:27 PM SENT
siboney Rivera rivera@kelleyfirm.com 11/14/2023 5:01 :27 PM SENT
Dagmawi Getachew getachew@kelleyfirm.com 11/14/2023 5:01:27 PM SENT
Associated Case Party: BEVERLY TAYLOR
Name BarNumber Email TimestampSubmitted Status
Lalah LJohnson johnson@kelleyfirm.com 11/14/2023 5:01:27 PM SENT
siboney Rivera rivera@kelleyfirm.com 11/14/2023 5:01:27 PM SENT
Associated Case Party: PEACEFUL HOPE BAPTIST CHURCH
Name BarNumber Email TimestampSubmitted Status
Greg K.Winslett gwinslett@qslwm.com 11/14/2023 5:01:27 PM SENT
Ed Carlton ecarlton@qslwm.com 11/14/2023 5:01:27 PM SENT
Jonathan Lautin jlautin@qslwm.com 11/14/2023 5:01:27 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Patricia McCulloch pmcculloch@tureklawfirm.com 11/14/2023 5:01:27 PM SENT
Douglas Turek dturek@tureklawfirm.com 11/14/2023 5:01:27 PM SENT
Dagmawi Getachew 24108975 getachew@dgfirm.law 11/14/2023 5:01:27 PM SENT
Emily Marr emarr@tureklawfirm.com 11/14/2023 5:01:27 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Melissa Miranda on behalf of Edward Carlton
Bar No. 03820050
mmiranda@qslwm.com
Envelope ID: 81639986
Filing Code Description: Correspondence - Letter To File
Filing Description: DEFS LETTER TO COURT
Status as of 11/15/2023 10:47 AM CST
Case Contacts
Emily Marr emarr@tureklawfirm.com 11/14/2023 5:01 :27 PM SENT
Francine Ly fly@dallascourts.org 11/14/2023 5:01:27 PM SENT
Preview
FILED 11/14/2023 5:01 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Debra Clark DEPUTY QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C. A PROFESSIONAL CORPORATION ATTORNEYS AND COUNSELORS BRYAN STREET, SUITE 1800 2001 DALLAS, TEXAS 75201 W. Edward Carlton Direct: (214) 880-1 870 ecarlton@qslwm.com Fax: (214) 871 -21 1 1 November 14, 2023 Honorable Dale B. Tillery Judge, 134th Judicial District Court George L. Allen, Sr. Courts Building 600 Commerce Street, 6th Floor West (Old) Dallas, TX 75202 Re: Freddie Taylor and Beverly Taylor v. Peaceful Hope Baptist Church, et al; Cause No. DC-18-11857; 134th District Court of Dallas County, Texas Dear Judge Tillery: At the hearing this morning, Plaintiff” s counsel argued that, as long as his firm was diligent in initially requesting citation and made efforts to serve Defendant Peaceful Hope after receiving the citation, the Court should disregard the delay from September 6, 2018, after he requested citation, to December 28,2018, when citation was issued, because “it was not under the control of the Plaintiffs.” I disagreed that this was supported by Texas law. You advised that you would read the cases cited by Plaintiff’ s counsel, and if I felt that additional authority was necessary, I could respond. Having read Plaintiffs’ newly filed Reply, I see that this novel argument is made on pages 24-25, notably with no citation of any legal authority. As such, it should be disregarded in its entirety. However, to give Plaintiff the benefit of the doubt, I have reviewed the four (4) cases cited in the section of the Reply in which Plaintiff makes this argument. Those cases are discussed below. In Proulx v. Wells, 235 S.W.3d 213 (2007), there was no significant delay in the issuance of citation. The delay at issue was approximately 9 months from the time citation was received until the defendant was served. In that regard, the Court noted that summary judgment evidence showed plaintiff utilized two (2) process servers, who collectively made 30 attempts to serve the defendant at five (5) different addresses. A private investigator hired in plaintiff’ s efforts attributed difficulties to the defendant’s “doing his best to avoid service from courts and creditors.” Id. at 217. The Court found that evidence presented of plaintiff’s “continuous service attempts, coupled with evidence that [defendant] was deliberately avoiding service. . .failed to conclusively establish lack of diligence.” Proulx does not support Plaintiff s novel argument. Bilinsco Inc. v. Harris County Appraisal District, 321 S.W.3d 648 (Hou. [1“ Dist.] 2010), is cited by Plaintiff for the proposition that a party “may ordinarily rely on the clerk to perform his duty within a reasonable time.” The case was a property tax appraisal dispute. After mailing copies of his notice of appeal to the Appraisal District (the “District”) and the Appraisal Review Board Honorable Dale B. Tillery November 14, 2023 Page 2 (the “Board”), plaintiff filed suit and arranged to serve citation on both defendants, but only the Board was served. The Board answered, and 10 months later both filed a plea to the jurisdiction. When that was denied, they filed a Motion for Summary Judgment, which the trial court granted. Bilinsco does quote the above language from Boyattz'a v. Hinojosa, 18 S.W. 3d 729, 733- 34 (Tex. App—Dallas 2000, pet. denied). However, not mentioned by Plaintiff, it also cites Boyattia for the proposition that, “When, however, a party learns, or by the exercise of diligence should have learned, that the clerk failed to issue citation, ‘it is incumbent upon the party to ensure the job is done.” Bilinsco, 321 S.W.3d at 652. The Bilinsco Court then examined the record for any effort that Plaintiff Bilinsco made to check on service, and found, “There is none.” Id. Holding that the record established Bilinsco’s lack of diligence in procuring service, the summary judgment was affirmed. Id. Bilinsco does not support Plaintiff s novel argument. In Boyattz‘a v. Hinojosa, 18 S.W. 3d 729, 733-34 (Tex. App—Dallas 200, pet. denied), the plaintiff filed her petition the day before the statute of limitations. The clerk’s office provided one defendant’s citation within two weeks but did not deliver the other defendant’s citation for three (3) months. Id. at 732. Boyattz'a is cited by Plaintiff for the proposition that, “two weeks [was] not an unreasonable amount of time to allow [the] clerk to perform duties” and “Even when a district clerk delays in issuing or delivering a citation, ‘the passage of time alone is not itself controlling on the issue of a party’s diligence.”’ However, as reflected above, the more important holding in Boyattia, not mentioned by Plaintiff, was that “when a party learns, or by exercise of diligence should have learned, that the clerk has failed to fulfill his duty [to deliver citations as directed], it is incumbent upon the party to ensure that the job is done.” Id. at 734; citing Buie v. Couch, 126 S.W. 2d 565, 566 (Tex. CiV App.7Waco 1939, wrt ref’ d). The Boyattia court concluded that the plaintiff failed to exercise due diligence because “an unexplained three month delay is not a reasonable time for the clerk to deliver a citation as directed by a party”. Id. “Therefore, [the plaintiff ] should have known the clerk was not fulfilling his duty. . .. and was obligated to make an effort to ensure that delivery was accomplished. Id. Noting that a lengthy affidavit by Boyattia’s attorney gives a detailed explanation of actions taken after the citation was delivered, “there [was] no mention of any action taken during the three-month period the. . .citation remained with the clerk.” Id. As such, the Boyattia court concluded that Boyattia’s failure to act during the clerk’s three-month delay constituted lack of diligence as a matter of law. Id. Boyattia does not support Plaintiff s novel argument. Finally, while a full citation is not included, Plaintiff attempts to cite Shaw v. Lynch, No. 01-15-00040-CV, 2016 WL 1388986 (Tex. App.-Hou. Apr. 7, 2016) (Not Reported in S.W. Rptr.), ostensibly for the proposition that no evidence suggests that Plaintiff “wholly ignore[d]” their duty to timely procure and effect service on Defendant. [Reply, p. 25]. In Shaw, the plaintiff filed suit on December 26, 2012. Citation was issued the next day, but the process server did not receive it until January 22, 2013, and citation was served on February 20, 2013. Id. at *1. The plaintiffs counsel asserted that the delay in service was due to an error in the district clerk’s office. Importantly, counsel’s affidavit noted that “after ‘four Mondays had elapsed since the requested citation’ and neither an executed return of service nor an answer had been filed” he contacted his process server and instructed him “to locate the issued citation and serve the defendant ‘as expeditiously as possible.’” Additionally, testimony of the process server showed that once he received process, he made numerous calls to process servers and, when unsuccessful “directed a Honorable Dale B. Tillery November 14, 2023 Page 3 fellow process server to drive from Montgomery County to Beaumont to serve the defendant.” Id. at *3. Because of the detailed factual evidence of the plaintiffs counsel’ s active investigation when no return was filed Within the time expected and his directive to the process server to locate and serve the defendant “as expeditiously as possible”, the Shaw court concluded that the evidence raised a genuine issue of material fact. No such detailed factual evidence of any effort by Plaintiff during the 113 days between September 6, 2018, after citation was requested, to December 28, 2018, when citation was issued, was presented in this case. Instead, the only affidavit makes the conclusory statement, with no factual support whatsoever, that attorneys at the firm “made diligent efforts to request citation and effectuate service.” Shaw does not support Plaintiffs novel argument. Neither Plaintiffs’ Motion for Rehearing and Reconsideration nor Plaintiffs untimely Reply provide any new evidence, and certainly neither provide any justifiable explanation of plaintiffs failure to take any action during the 113 days it took for the clerk’s office to issue citation. Plaintiffs Motion for Rehearing and Reconsideration should be denied. Respectfully yours, /s/ W. Edward Carlton W. Edward Carlton cc: Dagmawi Getachew Lalah Johnson Greg Winslett firm Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Melissa Miranda on behalf of Edward Carlton Bar No. 03820050 mmiranda@qslwm.com Envelope ID: 81639986 Filing Code Description: Correspondence - Letter To File Filing Description: DEFS LETTER TO COURT Status as of 11/15/2023 10:47 AM CST Associated Case Party: FREDDIE TAYLOR Name BarNumber Email TimestampSubmitted Status Lalah LJohnson johnson@kelleyfirm.com 11/14/2023 5:01:27 PM SENT siboney Rivera rivera@kelleyfirm.com 11/14/2023 5:01 :27 PM SENT Dagmawi Getachew getachew@kelleyfirm.com 11/14/2023 5:01:27 PM SENT Associated Case Party: BEVERLY TAYLOR Name BarNumber Email TimestampSubmitted Status Lalah LJohnson johnson@kelleyfirm.com 11/14/2023 5:01:27 PM SENT siboney Rivera rivera@kelleyfirm.com 11/14/2023 5:01:27 PM SENT Associated Case Party: PEACEFUL HOPE BAPTIST CHURCH Name BarNumber Email TimestampSubmitted Status Greg K.Winslett gwinslett@qslwm.com 11/14/2023 5:01:27 PM SENT Ed Carlton ecarlton@qslwm.com 11/14/2023 5:01:27 PM SENT Jonathan Lautin jlautin@qslwm.com 11/14/2023 5:01:27 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Patricia McCulloch pmcculloch@tureklawfirm.com 11/14/2023 5:01:27 PM SENT Douglas Turek dturek@tureklawfirm.com 11/14/2023 5:01:27 PM SENT Dagmawi Getachew 24108975 getachew@dgfirm.law 11/14/2023 5:01:27 PM SENT Emily Marr emarr@tureklawfirm.com 11/14/2023 5:01:27 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Melissa Miranda on behalf of Edward Carlton Bar No. 03820050 mmiranda@qslwm.com Envelope ID: 81639986 Filing Code Description: Correspondence - Letter To File Filing Description: DEFS LETTER TO COURT Status as of 11/15/2023 10:47 AM CST Case Contacts Emily Marr emarr@tureklawfirm.com 11/14/2023 5:01 :27 PM SENT Francine Ly fly@dallascourts.org 11/14/2023 5:01:27 PM SENT