COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-369-CV
KEITH D. JOHNSON APPELLANT
V.
CITY OF FORT WORTH D/B/A APPELLEE
FORT WORTH CITY POLICE
DEPARTMENT
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FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Introduction
Appellant Keith D. Johnson appeals the trial court’s decision to grant
appellee City of Fort Worth d/b/a Fort Worth City Police Department’s
traditional motion for summary judgment. We affirm.
1
… See Tex. R. App. P. 47.4.
Background Facts
The relevant, undisputed facts that form the basis of this appeal are as
follows. On November 7, 2007, Johnson filed his original petition against
appellee, alleging that appellee denied him reemployment as a police officer
because he is black. The petition asserted that Johnson had filed a charge of
discrimination with the Texas Workforce Commission (TWC) and that he had
received TWC’s letter informing him of his right to sue before filing the
petition.2 The petition further stated that it could be served on “County Judge,
B. Glen Whitley.”
After receiving no answer to the petition, while preparing to file a default
judgment motion, Johnson’s counsel determined that she had incorrectly served
Whitley. Thus, on December 26, 2007, Johnson amended his petition to
replace Whitley with Fort Worth Mayor Mike Moncrief.3 On January 8, 2008,
appellee answered the petition by asserting a general denial as well as several
2
… In part, TWC’s letter states, “This notice is to advise you of your right
to bring a private civil action in state court in the above-referenced case.
YOU HAVE SIXTY (60) DAYS FROM THE RECEIPT OF THIS NOTICE TO FILE
THIS CIVIL ACTION.”
3
… In a suit against a city, citation may be served only on the city’s
mayor, clerk, secretary, or treasurer. Tex. Civ. Prac. & Rem. Code Ann.
§ 17.024(b) (Vernon 2008); see Skaggs v. City of Keller, 880 S.W.2d 264,
266 (Tex. App.—Fort Worth 1994, writ denied). A deputy constable served
Mayor Moncrief with the amended petition on January 2, 2008.
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affirmative defenses, including that Johnson’s claim was barred by the statute
of limitations contained in section 21.254 of the labor code. See Tex. Lab.
Code Ann. § 21.254 (Vernon 2006).
In April 2008, appellee filed a motion for summary judgment on the basis
of its statute of limitations defense. In its motion, appellee admitted that
Johnson timely filed a discrimination charge with TWC and that he timely filed
his original petition after receiving the notice of his right to sue.
However, appellee contended that Johnson’s suit was nonetheless barred
because he did not serve appellee with the lawsuit until more than fifty days
after the statutory limitations period expired.
In June 2008, Johnson filed his response to appellee’s motion, asserting
that the inadvertent designation in his original petition of Whitley rather than
Mayor Moncrief as the city’s agent for service did not create a bar to his suit
by the labor code’s statute of limitations because he was still diligent in serving
Mayor Moncrief. The trial court granted appellee’s motion and dismissed all of
Johnson’s claims with prejudice. Johnson timely filed his notice of this appeal.
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Summary Judgment Standards
We must use the standards related to a traditional motion for summary
judgment under rule of civil procedure 166a(c) to determine whether appellee
rightfully prevailed on its statute of limitations affirmative defense.4 See Tex.
R. Civ. P. 166a(c); Rivera v. Countrywide Home Loans, Inc., 262 S.W.3d 834,
840 (Tex. App.—Dallas 2008, no pet.); Salahat v. Kincaid, 195 S.W.3d 342,
343 (Tex. App.—Fort Worth 2006, no pet.). In a summary judgment case, the
issue on appeal is whether the movant met the summary judgment burden by
establishing that no genuine issue of material fact exists and that the movant
is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Sw. Elec.
Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). A defendant is entitled
to summary judgment on the affirmative defense of limitations if the defendant
4
… Johnson raised two issues in his appellate brief. The first issue
regarded whether the analysis in this appeal should be based on traditional or
no-evidence summary judgment standards; the issue resembles a discussion
regarding our standard of review rather than a ground for reversal of the trial
court’s judgment. Johnson argued, appellee conceded, and we conclude that
our review of the trial court’s decision should be based on the traditional
standards set forth by rule 166a(c). See Tex. R. Civ. P. 166a(c). Because we
will review the trial court’s decision based on those standards on a de novo
basis, we overrule Johnson’s first issue to the extent that it implicitly contends
that the trial court evaluated appellee’s summary judgment motion on other
summary judgment principles. See Gray v. Nash, 259 S.W.3d 286, 289 (Tex.
App.—Fort Worth 2008, pet. denied).
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conclusively proves all the elements of the defense. Rhone-Poulenc, Inc. v.
Steel, 997 S.W.2d 217, 223 (Tex. 1999); see Tex. R. Civ. P. 166a(b), (c).
The Statute of Limitations Created by Section 21.254 of the Labor Code
and the Requirement of Due Diligence in Serving a Citation
Chapter 21 of the labor code creates a comprehensive administrative
review system for obtaining relief from unlawful employment practices.
See Tex. Lab. Code Ann. §§ 21.001–.107 (Vernon 2006); Tarrant County v.
Vandigriff, 71 S.W.3d 921, 924 (Tex. App.—Fort Worth 2002, pet. denied).
After following the initial procedures related to a claim against an employer
under that chapter, a plaintiff must file a civil action within sixty days of its
receipt of TWC’s notice that the plaintiff may sue. Tex. Lab. Code Ann.
§ 21.254; see Vandigriff, 71 S.W.3d at 924; Roberts v. Padre Island Brewing
Co., 28 S.W.3d 618, 621 (Tex. App.—Corpus Christi 2000, pet. denied).
When a suit under the labor code is filed within the sixty-day period, it
may be properly served outside of that period only where the plaintiff has
exercised due diligence in obtaining service. See Vandigriff, 71 S.W.3d at
924–25; Roberts, 28 S.W.3d at 621. In other words, “when a plaintiff files
suit within the limitations period, but does not serve the defendant until after
the statutory period has expired, the date of service relates back to the date of
filing only if the plaintiff continuously exercised due diligence in effecting
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service of citation upon the defendant.” Roberts, 28 S.W.3d at 621; see Proulx
v. Wells, 235 S.W.3d 213, 215 (Tex. 2007); Vandigriff, 71 S.W.3d at 924.
The existence of such diligence is “usually a question of fact.” Roberts, 28
S.W.3d at 622; see Vandigriff, 71 S.W.3d at 925 (noting, however, that if “no
excuse is offered for a delay or if the lapse of time and a plaintiff’s acts are
such as to conclusively negate diligence, lack of diligence will be found as a
matter of law”).
The standard of due diligence is based on the care that an ordinarily
prudent person would have used under the same or similar circumstances from
the date the suit was filed until the date it was served. Proulx, 235 S.W.3d at
216; James v. Gruma Corp., 129 S.W.3d 755, 759 (Tex. App.—Fort Worth
2004, pet. denied); Vandigriff, 71 S.W.3d at 925. When a defendant asserts
its limitations defense based upon service of process outside of the limitations
period, the burden shifts to the plaintiff to demonstrate that it used due
diligence. Proulx, 235 S.W.3d at 216. However, 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.” Id. It is not the period of
delay, but rather the diligence in pursuing service of process, that is the
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determinative factor. See Johnson v. City of Houston, 203 S.W.3d 7, 10 (Tex.
App.—Houston [14th Dist.] 2006, pet. denied).
The parties agree that Johnson received TWC’s right to sue letter on
September 10, 2007 and that he filed his suit on November 7, 2007, which is
within the sixty-day period provided by section 21.254. The parties also agree
that appellee was not served until January 2, 2008, more than fifty days after
the statutory period expired. Therefore, we must determine whether, as a
matter of law, Johnson was not diligent in serving appellee because he
mistakenly named and served Whitley rather than Mayor Moncrief with his
original petition. See Proulx, 235 S.W.3d at 216.
Authority indicates that the diligence analysis extends to the plaintiff’s
initial determination of who to serve with its petition. For instance, in Nabelek
v. City of Houston, the Houston (First District) Court of Appeals concluded that
a lack of diligence in service was established as a matter of law because (in
part) the plaintiff initially attempted to serve his petition on the city’s legal
counsel. No. 01-06-01097-CV, 2008 WL 5003737, at *7–9 (Tex.
App.—Houston [1st Dist.] Nov. 26, 2008, no pet.) (mem. op.). After noting
that the city’s correct agent for service is set forth by statute, the court stated
that it was “Nabelek’s responsibility to ascertain the proper person to serve, to
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request that citation be issued on that person, to ensure that service was
executed on that person, and to do so with due diligence.” Id. at *8.
Similarly, in Hoehn v. Dallas County Mental Health and Mental Retardation
Center, the Dallas Court of Appeals examined whether Hoehn was diligent in
serving her citation six months following the expiration of a two-year limitations
period when she initially incorrectly served a county judge as the purported
agent for the defendant. No. 05-94-01515-CV, 1995 WL 500271, at *2 (Tex.
App.—Dallas Aug. 16, 1995, no writ) (not designated for publication). Hoehn
argued that there was a
fact issue as to whether she used due diligence because she
believed she served MHMR on August 18, 1992, when she served
[the county judge]. Specifically, she maintain[ed] she was “under
the impression” [the county judge] was the proper party for service
of process because MHMR is listed in the phone book under “Dallas
County” and [the county judge] is the proper agent for service on
Dallas County.
Id. The court of appeals framed the issue as whether “Hoehn’s explanation that
she served the wrong person raise[d] a fact issue on due diligence.” Id. at *3.
The court then concluded that the explanation did not raise such a fact issue,
reasoning,
Under [the civil practices and remedies code], Hoehn should have
served the administrative head of MHMR. The administrative head
of MHMR was Don Gilbert. [The county judge] is not and has
never been the administrative head of MHMR. Hoehn offers no
explanation for her failure to comply or attempt to comply with the
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statute. Nor did Hoehn contact Gary W. Sibley, the attorney
representing MHMR, to ascertain the proper agent for service of
process.
....
We conclude Hoehn’s explanation that she served the wrong
party does not raise a fact issue on due diligence. The Texas Civil
Practices and Remedies Code makes clear the correct agent for
service on MHMR would be Don Gilbert, the administrative head of
MHMR. Hoehn’s mistake, in the face of an explicit statute, and her
failure to learn of her mistake for five months is not consistent with
due diligence.
Id. (citation omitted); see also Leal v. City of Rosenberg, No. 07-00-00140-CV,
2001 W L 476511, at *4 (Tex. App.—Amarillo May 7, 2001, no pet.) (not
designated for publication) (stating that “[r]equesting service upon the wrong
individual is not ordinary prudence in securing service”); cf. Sibley v. Kaiser
Found. Health Plan of Tex., 998 S.W.2d 399, 405–06 (Tex. App.—Texarkana
1999, no pet.) (holding that though the plaintiff initially attempted to serve the
wrong party in a suit under section 21.254 of the labor code, he was
nonetheless diligent in serving the suit on the correct party after limitations
expired because “any confusion was caused by [the defendant’s] use of
multiple names for its various organizations and the apparent inability of its
registered agent to provide information that would permit a party to pinpoint
[its] actual name”).
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We believe that these persuasive decisions stand for the proposition that
the matter of diligence in service beyond the expiration of a limitations period
applies to the plaintiff’s initial determination of who to serve. See also James,
129 S.W.3d at 759 (stating that the duty of diligence in service begins on the
“date suit is filed”). We agree with that concept, and we therefore conclude
and hold that Johnson was required to be diligent in his initial designation of
appellee’s service agent.
Johnson has not cited any summary judgment evidence indicating that he
was diligent in his initial designation of Whitley as appellee’s service agent by
making reasonable (though ultimately faulty) efforts to determine the correct
service agent. Instead, he has merely characterized his naming of Whitley as
appellee’s agent for service in his initial petition as an “inadvertent mistake.”
Further, Johnson’s counsel’s affidavit (attached to Johnson’s summary
judgment response) affirmatively demonstrates a lack of diligence in the initial
determination of appellee’s proper agent for service. It states,
The time frame for an answer came and went with no answer filed
by [appellee]. I then had my staff call to see how long the Citation
of Service had been filed in preparation of filing a Motion for
Default Judgment. In the process of looking at the service that
had been obtained, I noted that it had been served on the County
Judge and the Plaintiff had sued the City. I immediately checked
as to who would obtain service for the City. I amended [the
petition] and once again made arrangements to have a process
server serve the citation . . . . [Emphasis added.]
10
This explanation demonstrates that Johnson’s counsel waited until after her
discovery that the petition had been improperly served, and therefore after the
statutory limitations period had expired, to investigate appellee’s proper agent
for service. As noted above, appellee’s correct agent in this regard is
specifically set forth by a statute; this statute could have been followed with
reasonable diligence. See Tex. Civ. Prac. & Rem. Code Ann. § 17.024(b).
Under these circumstances, we cannot conclude that Johnson met his burden
to raise any material fact issue demonstrating his due diligence in serving
appellee correctly. See Proulx, 235 S.W.3d at 216.
Johnson also contends that appellee suffered no prejudice from being
served with the petition just over fifty days after the limitations period expired.
First, Johnson has cited no authority indicating that prejudice is relevant to a
statute of limitations defense when the correct defendant is sued but it is
improperly served. 5 Second, though approximately fifty days may be a short
amount of time relative to the delays of service in the cases cited above, it is
still almost the full length of the statutory limitations period created by section
5
… When a plaintiff mistakenly sues the wrong party, limitations is tolled
when the proper defendant had notice of the suit and is not prejudiced by the
mistake. See Maher v. Herrman, 69 S.W.3d 332, 338 (Tex. App.—Fort Worth
2002, pet. denied). Here, Johnson did not sue the wrong party; he served the
wrong agent.
11
21.254. See Tex. Lab. Code Ann. § 21.254; see also Windle v. Mary Kay,
Inc., No. 05-02-00252-CV, 2003 WL 21508782, at *1–3 (Tex. App.—Dallas
July 1, 2003, pet. denied) (mem. op.) (affirming the trial court’s decision to
grant the defendant’s summary judgment motion under the statute of
limitations in section 21.254 when service of the citation was less than forty
days late); Roberts, 28 S.W.3d at 621–22 (determining that a seventy-six day
delay in service of a claim filed under section 21.254 provided a sufficient
ground for dismissal under the statute of limitations).
For all of these reasons, we hold that Johnson’s service of his petition on
appellee does not relate back to the day he originally filed it, that appellee
established its statute of limitations defense as a matter of law, and that the
trial court therefore properly granted appellee’s summary judgment motion.
Thus, we overrule Johnson’s second issue.
Conclusion
Having overruled both of Johnson’s issues, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
JUSTICE
PANEL: LIVINGSTON, MCCOY and MEIER, JJ.
DELIVERED: March 26, 2009
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