Date: 08-10-2017

Case Style: Debra Herron v. D&S Community Services

Case Number: 06-17-00015-CV

Judge: Bailey C. Moseley

Court: Texas Court of Appeals, Sixth District on appeal from the County Court at Law No. 2 of Gregg County

Plaintiff's Attorney: Sten Langsjoen

Defendant's Attorney: Karen D. Smith

Description: Following two failed efforts to serve her former employer, D&S Community Services (D&S), with a wrongful termination and retaliatory discharge lawsuit, Debra Herron was successful in serving D&S with process 246 days after she received notice from the Equal Employment Opportunity Commission (EEOC) of her right to file a lawsuit. D&S answered the lawsuit, and it affirmatively alleged that the statute of limitations barred Herron’s claims. D&S thereafter filed a motion for summary judgment based on its statute of limitations defense, which motion was granted by the trial court. Herron appeals, claiming the trial court erred in applying a ninety-day limitations period to her claim. Because we conclude that Herron’s claims are barred by limitations, we affirm the judgment of the trial court.
I. Background
Herron, a fifty-one-year-old, African-American woman, was employed by D&S as a facility home manager. In September 2014, Herron’s employment was suspended pending an investigation of alleged misconduct based on Herron’s statement in a company meeting alleging theft by company managers. Herron’s employment was thereafter terminated by D&S on October 26, 2014.
Following the termination of her employment, Herron filed a complaint with the EEOC. On May 21, 2015, the EEOC mailed Herron a Dismissal and Notice of Rights (Right-to-Sue
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Letter).1 On June 16, 2015, Herron filed her original petition in the County Court at Law No. 2 of Gregg County, alleging causes of action against D&S for wrongful termination, workplace retaliation, and discriminatory conduct. Service of process was attempted on D&S by certified mail in care of Dave Tennison, 1002 Cheryl Dr. Circle #B, Longview, Texas 75604 on June 17, 2015. Citation was returned unclaimed on July 21, 2015. On November 4, 2015, Herron filed her first amended original petition. On November 5, 2015, Herron attempted to serve the amended petition and citation by certified mail on D&S by serving D&S Community Services, C/O Mickey D. Atkins, 1122 S. Capital of TX Hwy #350, Austin, TX 78746. On November 17, 2015, citation was returned and marked “unable to forward.”2 On January 22, 2016, Herron again requested issuance of citation, and although the citation was prepared, it was not served. On February 2, 2016, service of process issued for the third time, this time via personal service. Citation was issued to “D&S Community Services BY SERVIING REGISTERED AGENT MICKEY D ATKINS 1122 S CAPITAL OF TEXAS HIGHWAY SUITE 350 AUSTIN TX 78746.” The process server was successful in effectuating service on D&S on February 17, 2016.
1The Right-to-Sue Letter stated:
Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will be lost. (The time limit for filing suit based on a claim under state law may be different).
2The mailing envelope was stamped
RETURN TO SENDER
NOT DELIVERABLE AS ADDRESSED
UNABLE TO FORWARD.
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D&S asserted the statute of limitations as a bar to Herron’s claims in its answer and filed a motion for summary judgment on October 3, 2016, claiming that because Herron failed to serve D&S within the ninety-day time period set out in the Right-to-Sue Letter and failed to diligently pursue service after filing her suit, her claims were barred by the statute of limitations.3 On November 18, 2016, the trial court entered a take-nothing judgment in favor of D&S, stating that the court “considered the Motion for Summary Judgment, the applicable legal authorities, and the arguments of counsel” and finding “that the Motion for Summary Judgment should be GRANTED.” Herron’s claims were dismissed with prejudice. On appeal, Herron contends that the claims in her first amended petition were governed by the two-year statute of limitations rather than by the ninety-day limitation period as stated in the Right-to-Sue Letter.
II. Standard of Review
A traditional motion for summary judgment is granted only when the movant establishes that there are no genuine issues of material fact and it is entitled to judgment as a matter of law. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). “A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense.” Friddle v. Fisher, 378 S.W.3d 475, 483 (Tex. App.—Texarkana 2012, pet. denied) (quoting KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp.,
3Evidently, the summary judgment hearing was scheduled for November 14, 2016. The trial court’s docket sheet reflects that the hearing took place on that date and that D&S was entitled to judgment on its affirmative defense of limitations. Although Herron had not filed an answer to the summary judgment motion prior to the hearing date, she filed a motion for continuance of the hearing on November 14, 2016, explaining that although counsel received notice of the November 14 hearing, he mistakenly believed the hearing was set for November 24, 2016. Counsel further explained that he was to begin a jury trial on November 14. The November 14 docket sheet indicates that after the summary judgment hearing, the trial court realized that Herron had filed a motion for continuance and that the motion was not taken up at the time of the hearing.
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988 S.W.2d 746, 748 (Tex. 1999)). “[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.’” Proulx v. Wells, 235 S.W.3d 213, 216 (Tex. 2007) (per curiam) ([A] timely filed suit will not interrupt the running of limitations unless the plaintiff exercises due diligence in the issuance and service of citation.” Id. at 215).
We review de novo the grant or denial of a motion for summary judgment “to determine whether a party’s right to prevail is established as a matter of law.” Lamar Corp. v. City of Longview, 270 S.W.3d 609, 613 (Tex. App.—Texarkana 2008, no pet.); see Nash v. Beckett, 365 S.W.3d 131, 136 (Tex. App.—Texarkana 2012, pet. denied) (citing Mann, 289 S.W.3d at 848). In our review, we deem as true all evidence which is favorable to the non-movant, indulge every reasonable inference to be drawn from the evidence, and resolve any doubts in the non-movant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
III. Analysis
For the first time on appeal, Herron argues that the trial court erred in granting summary judgment because it should have applied the two-year statute of limitations applicable to Sabine Pilot4 claims, rather than the statutorily imposed ninety-day limitations period applicable to EEOC claims in which the claimant has received a right-to-sue letter from that agency. See 42 U.S.C.A. § 2000e-5(f)(1) (West, Westlaw through P.L. 115-43 Aug. 7, 2017) (Title VII claims must be brought within ninety days of receiving right-to-sue letter); Baldwin v. Northrop Grumman Info.
4Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733 (Tex. 1985). We merely recite Herron’s argument and do not opine on the statute of limitations applicable to “Sabine Pilot claims.”
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Tech., No. 03-09-00654-CV, 2011 WL 182880, at *1 (Tex. App.—Austin Jan. 21, 2011, no pet.) (mem. op.).5
“To preserve an argument against the granting of a motion for summary judgment for appellate review, the non-movant must expressly present that argument to the trial court within its written response to the motion.” Estate of Jobe v. Berry, 428 S.W.3d 888, 909 n.12 (Tex. App.—Texarkana 2014, no pet.) (quoting Robin Singh Educ. Servs., Inc. v. Test Masters Educ. Servs., Inc., 401 S.W.3d 95, 98 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (citing Priddy v. Rawson, 282 S.W.3d 588, 597 (Tex. App.—Houston [14th Dist.] 2009, pet. denied)); see TEX. R. CIV. P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”).
Herron did not file a summary judgment response in the trial court. Thus, Herron failed to preserve her alternative limitations issue for appellate review. Nevertheless, “A traditional motion for summary judgment must stand on its own merits, and the nonmovant may argue on appeal that the movant’s summary judgment proof is insufficient as a matter of law, even if the nonmovant filed no response to the motion.” Galindo v. Snoddy, 415 S.W.3d 905, 909 (Tex. App.—Texarkana 2013, no pet.) (citing M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam)).
Here, however, Herron does not clearly contend that D&S’s summary judgment proof is insufficient as a matter of law with respect to her failure to comply with the ninety-day statute of
5Herron’s petition makes specific reference to the administrative relief sought through the EEOC. The Right-to-Sue Letter is attached to the petition.
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limitations. Herron apparently maintains only that the trial court applied the wrong statute of limitations, an argument not presented to the trial court. Herron generally contends, though, that “[a] nonmovant need not answer or respond to a motion for summary judgment to contend on appeal that the grounds expressly presented by the movant’s motion are insufficient as a matter of law to support summary judgment.” Turner v. Church of Jesus Christ of Latter-Day Saints, 18 S.W.3d 877, 886 (Tex. App.—Dallas 2000, pet. denied).6 In the interests of justice and because a traditional summary judgment must stand on its own merits, we review the judgment here to determine whether it was appropriately granted based on the application of the ninety-day statute of limitations. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam).
D&S complains that it was not served with process within the ninety-day limitations period. A proper calculation of the commencement of the limitations period requires proof of the date on which Herron received her Right-to-Sue Letter. See 42 U.S.C.A. § 2000e-5(f)(1). The record reflects that the Right-to-Sue Letter was mailed to Herron on May 21, 2015. A copy of the letter was attached to Herron’s original petition filed on June 16, 2015. Because the record does not contain evidence of the precise date on which Herron received the letter and because it is clear that Herron received the letter no later than June 16, 2015, we will indulge every reasonable inference in her favor and presume that she received the letter on that date. Using June 16, 2015, as a starting point, D&S was required to prove that it was not served with process on or before
6Our sister court also recognized that, in this situation, “the nonmovant may not raise any other issues as grounds for reversal.” Turner, 18 S.W.3d at 886 (citing TEX. R. CIV. P. 166a(c)).
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September 14, 2015. See Proulx, 235 S.W.3d at 216. The summary judgment evidence reflects that D&S was served on February 17, 2016. D&S, therefore, established that it was not served within the limitations period.
Because D&S pled limitations and proved service occurred after the statute of limitations expired, the burden of proof shifted to Herron to “present evidence regarding the efforts that were made to serve [D&S], and to explain every lapse in effort or period of delay.” Id. “Diligence is determined by whether the plaintiff acted as an ordinarily prudent person would under the same or similar circumstance and whether the plaintiff acted diligently up until the time the defendant was served.” Waggoner v. Sims, 401 S.W.3d 402, 404 (Tex. App.—Texarkana 2013, no pet.) (citing Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009); Proulx, 235 S.W.3d at 216). Moreover, “An unexplained delay in effecting service constitutes a lack of diligence as a matter of law,” Id., and “when one or more lapses between service efforts are unexplained or patently unreasonable,” such lapses “demonstrate a lack of due diligence as a matter of law,” Proulx, 235 S.W.3d at 216.
While the question of diligence in effecting service is generally a fact question, no such question was raised in this case. Because Herron did not file a response to the motion for summary judgment, she failed to carry her burden to explain the delay. We find no explanation for the delay in the summary judgment evidence. Herron has not shown that she exercised due diligence in procuring issuance and service of citation. See id. Consequently, summary judgment in favor of D&S was proper.

Outcome: We affirm the trial court’s judgment.

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