COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-266-CV
TEXAS COMPTROLLER OF APPELLANT
PUBLIC ACCOUNTS
V.
WESLEY LANDSFELD APPELLEE
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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
This is an appeal from the denial of a plea to the jurisdiction filed by the
Texas Comptroller of Public Accounts (“TCPA”), which in two issues questions
(1) whether Appellee Wesley Landsfeld used due diligence in serving the TCPA
and (2) whether the equitable tolling exception applies to the jurisdictional
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See T EX. R. A PP. P. 47.4.
limitations bar to Landsfeld’s claims under the Texas Commission on Human
Rights Act (“TCHRA”).
II. Standard of Review/Procedural Background
As a part of the administrative review system regarding employment
practices, once the Texas Commission on Human Rights issues a right-to-sue
letter, a claimant must bring suit within sixty days of receiving that notice, T EX.
L AB. C ODE A NN. § 21.254 (Vernon 2006), and serve the defendant within that
time frame. Davis v. Educ. Serv. Ctr., 62 S.W.3d 890, 893 n.4 (Tex.
App.—Texarkana 2001, no pet.); Roberts v. Padre Island Brewing Co., 28
S.W.3d 618, 621 (Tex. App.—Corpus Christi 2000, pet. denied). Should suit
be filed but service not completed within the sixty-day period, the date of
service relates back to the suit-filing date if the plaintiff exercised due diligence
in effectuating service. Tarrant County v. Vandigriff, 71 S.W.3d 921, 924-25
(Tex. App.—Fort Worth 2002, pet. denied) (citing Schroeder v. Tex. Iron
Works, Inc., 813 S.W.2d 483, 485 (Tex. 1991)).
Because the sixty-day limitation period is jurisdictional, Tarrant County,
71 S.W.3d at 924, the TCPA in this matter filed a plea to the jurisdiction
asserting that as a matter of law, there was an absence of due diligence of
service of process, which meant the service date then did not relate back to the
filing date, and hence, the trial court was without jurisdiction over the matter.
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The trial court denied the plea to the jurisdiction. This appeal followed. We
review the denial of a plea to the jurisdiction under a de novo standard. See
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
III. Background Facts
Due to the nature of this appeal, it is expedient to set forth a timeline of
events pertinent to the issues before us.
September 27, 2005: Landsfeld filed a discrimination complaint with the Equal
Employment Opportunity Commission and the Texas Workforce
Commission (“TWC”) claiming that he was discriminated against by the
TCPA during his employment and that he was involuntarily retired.
June 8, 2006: Landsfeld received a right-to-sue notice from the TWC, allowing
him to bring suit within sixty days from the notice date.
July 25, 2006: Landsfeld filed his original petition naming the State of Texas
as a defendant, and an amended petition also naming the TCPA as a
defendant, with service on both requested through Ed Burbach, Attorney
General, 209 West 14th Street, 8th Floor, Austin, Texas 78701.
August 8, 2006: A copy of the amended petition was faxed to counsel for the
State of Texas with a note from Landsfeld’s attorney stating, “If I have
the wrong address for service, let me know and I’ll get it sent to the
correct one.”
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August 2006 (exact date not in the record): According to Landsfeld’s counsel,
Assistant Attorney General Shelley Dahlberg contacted her and asserted
that the State of Texas was not a proper party, but rather the TCPA was
the proper party and that she, Dahlberg, would be representing the TCPA,
that she would act as an agent for service for the TCPA, and that she
would answer for the TCPA upon receipt of the amended pleading.
August 11, 2006: According to Dahlberg’s affidavit, she called Landsfeld’s
counsel and explained that the TCPA would not file an answer until they
had been properly served. A handwritten note from the same day
indicated that a message was left with Landsfeld’s counsel that the TCPA
would not be answering until properly served.
August 14, 2006: The first amended petition is served on the Attorney
General’s office.
August 22, 2006: An entry in the litigation software program in the Attorney
General’s office reads as follows: “As of today defendants have not been
properly served. SND spoke to Hutchinson [Landsfeld’s counsel]
regarding service. State to be served through Secretary of State.
Comptroller’s Office not served yet. SND spoke to Kevin Van Oort,
Deputy General Counsel. Kevin said the Comptroller’s Office does not
waive service. Answer shelled in directory, not sent.”
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September 4, 2006: The TCPA answer date based on an August 8, 2006
service date.
November 10, 2006: Landsfeld filed his second amended petition requesting
service through Carole Keeton Strayhorn, 111 East 17th Street, LBJ
Office Building, Austin, Texas 78774.
November 27, 2006: TCPA served with the second amended petition.
IV. Due Diligence
“The standard of due diligence required is that diligence to procure service
which an ordinary prudent person would have used under the same or similar
circumstances.” Vandigriff, 71 S.W.3d at 925 (citations omitted).
[O]nce a defendant has affirmatively pled the limitations defense
and shown that service was effected after limitations expired, the
burden shifts to the plaintiff “to explain the delay.” . . . [T]he
plaintiff’s explanation of its service efforts may demonstrate a lack
of due diligence as a matter of law, as when one or more lapses
between service efforts are unexplained or patently unreasonable.
But if the plaintiff’s explanation for the delay raises a material fact
issue concerning the diligence of service efforts, the burden shifts
back to the defendant to conclusively show why, as a matter of
law, the explanation is insufficient.
Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007) (citations omitted). “Thus,
it is the plaintiff’s burden to present evidence regarding the efforts that were
made to serve the defendant, and to explain every lapse in effort or period of
delay.” Id.
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In assessing diligence, the relevant inquiry is whether the plaintiff
acted as an ordinarily prudent person would have acted under the
same or similar circumstances and was diligent up until the time
the defendant was served. Generally, the question of the plaintiff’s
diligence in effecting service is one of fact, and is determined by
examining the time it took to secure citation, service, or both, and
the type of effort or lack of effort the plaintiff expended in
procuring service.
Id. (citations omitted). “Only in rare instances have the Texas courts concluded
that an excuse offered by the plaintiffs for failure to procure service negated the
exercise of due diligence as a matter of law.” Saenz v. Keller Indus. of Tex.,
Inc., 951 F.2d 665, 667 (5th Cir. 1992).
V. Summary of the Parties’ Arguments
It is the TCPA’s position that proper service was not had on it until
November 27, 2006, some three months and twenty days after the sixty-days-
to-sue date had expired. Further, even if the “improper” service on the
Attorney General on August 8, 2006, was somehow “proper,” and the answer
date was therefore September 4, Landsfeld waited sixty-seven days after the
September 4 answer date to file his second amended petition on November 10,
2006, and another seventeen days elapsed before service was had. No
explanation, according to the TCPA, has been forthcoming from Landsfeld to
explain these lapses in time, and this, the TCPA argues, demonstrates a clear
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absence of due diligence as a matter of law. Hence, the TCPA contends, the
trial court erred in not granting its plea to the jurisdiction.
It is Landsfeld’s position that his counsel was informed by the Attorney
General’s counsel that she would accept service for the TCPA and would be
answering for them. Nevertheless, “[a]s soon as it became clear to Landsfeld’s
counsel that an answer was not going to be filed because Defendant was
waiting for a different person to be served, Landsfeld’s counsel immediately
filed an Amended Petition on November 10, 2006 and requested citation, which
was served . . . on November 27, 2006.” He also asserts that the note of
August 22 shows that Dahlberg was discussing acceptance of service with
Deputy General Counsel Van Oort and poses the question, “Why would he be
telling her that if they weren’t discussing the fact that she had agreed to accept
service?” He also points to a vacation letter dated November 21, 2006, filed
by Dahlberg that “underscores the reasonableness of Landsfeld’s counsel’s
belief that the Assistance [sic] Attorney General represented that she was the
proper agent for service and that she had been served.” According to
Landsfeld, taken together these acts show due diligence on his behalf in
effectuating service on the TCPA, and denial of the TCPA’s plea was proper.
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VI. Case Law
As discussed by the parties to this case, our supreme court has recently
considered a case concerning the alleged absence of diligence in serving the
defendant with process, wherein suit was filed May 2, 2003, and service was
effectuated January 26, 2004, an interim period of more than eight months and
three weeks. Proulx, 235 S.W.3d at 214. In that case, the court of appeals
held that limitations barred the plaintiff’s suit due to an absence of diligence in
serving the defendant with process as a matter of law. Id. The supreme court
reviewed several previous cases that established such absence of due diligence:
Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (holding that plaintiff had
failed to exercise due diligence as a matter of law because he provided no
explanation for delays in service for three periods totaling thirty-eight months);
Webster v. Thomas, 5 S.W.3d 287, 291 (Tex. App.—Houston [14th Dist.]
1999, no pet.) (holding no due diligence as a matter of law when evidence
showed plaintiff’s actions over four months were not designed to procure the
issuance and service of citation); Butler v. Ross, 836 S.W.2d 833, 836 (Tex.
App.—Houston [1st Dist.] 1992, no writ) (holding five-and-a-half months of
inactivity and no service efforts between failed attempts at the wrong address
and proper service at the correct address constituted a lack of due diligence);
Hansler v. Manika, 807 S.W.2d 3, 5 (Tex. App.—Corpus Christi 1991, no writ)
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(stating that request for service five months after suit was filed affirmatively
demonstrated lack of due diligence). Proulx, 235 S.W.3d at 217. The supreme
court went on to hold that there was no comparable period of unexplained
inaction and therefore a lack of diligence had not been conclusively established.
Id.
VII. Analysis
Bearing in mind that only in rare instances does an excuse offered by the
plaintiff for the failure to procure timely service negate the exercise of due
diligence as a matter of law, and after reviewing the cases cited in the parties’
briefing and other relevant case law on the issue of due diligence as discussed
in this opinion, and considering the burden-shifting analysis set forth in Proulx,
we hold that the TCPA has not conclusively shown that the explanations for the
delays in question were insufficient as a matter of law. Therefore, we hold
that, as in most cases of this type, a fact question exists as to whether due
diligence was used by Landsfeld in effecting service on the TCPA. We overrule
TCPA’s first issue.
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VIII. Conclusion
Having overruled the TCPA’s first issue, which is dispositive, we do not
reach the TCPA’s second issue. T EX. R. A PP. P. 47.1. The trial court’s order
denying the TCPA’s plea to the jurisdiction is affirmed.
BOB MCCOY
JUSTICE
PANEL B: DAUPHINOT, GARDNER, and MCCOY, JJ.
DELIVERED: March 6, 2008
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