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holding that section 21.254 does not establish a jurisdictional bar; instead, it merely affects a plaintiff's right to maintain suit under the TCHRA
Summary of this case from Mission Cons. v. GarciaOpinion
No. 05-02-00252-CV.
Opinion Filed July 1, 2003.
Appeal from the County Court at Law No. 4, Dallas County, Texas, Trial Court Cause No. 01-08290-D.
AFFIRMED.
Before Justices MORRIS, MOSELEY, and FRANCIS.
MEMORANDUM OPINION
Kimberly Windle sued her employer, Mary Kay, Inc. ("Mary Kay"), asserting claims of sexual discrimination, retaliation, and sexual harassment under the Texas Commission on Human Rights Act ("TCHRA"). Mary Kay responded by filing a motion for summary judgment, alleging Windle failed to serve Mary Kay, with due diligence, within the 60-day limitations period established by section 21.254 of the TCHRA. The trial court granted Mary Kay's motion. Windle appeals and in four issues generally challenges the trial court's grant of summary judgment in favor of Mary Kay. The background of this case and the evidence adduced at trial are well-known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. Rs. App. P. 47.2(a), 47.4. For the following reasons, we affirm.
We review a trial court's ruling on a motion for summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Foreness v. Hexamer, 971 S.W.2d 525, 527 (Tex.App.-Dallas 1997, pet. denied). When reviewing a traditional summary judgment, we apply well-known standards. See Tex.R.Civ.P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). To prevail on summary judgment, the defendant must show there is no genuine issue of material fact concerning one or more essential elements of the plaintiff's cause of action or establish each element of an affirmative defense as a matter of law. Bowles v. Yeganeh, 84 S.W.3d 252, 254 (Tex.App.-Dallas 2002, no pet.). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Where, as here, the trial court grants summary judgment without specifying the basis for its ruling, we affirm the judgment if any of the movant's theories are meritorious. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989).
All of Windle's issues center on how section 21.254 affects her right to maintain a suit in this case. Section 21.254 provides: "Within 60 days after the date a notice of the right to file a civil action is received, the complainant may bring a civil action against the respondent." Tex. Lab. Code Ann. § 21.254 (Vernon 1996). Here, the relevant facts are not in dispute. Windle received her "right to sue" notice on June 26, 2001 and filed suit on August 3, 2001. The clerk issued citation on the same day as Windle filed suit. Nevertheless, Windle did not serve Mary Kay until October 2, 2001. Pursuant to section 21.254, Windle was required to both file this suit and serve Mary Kay by August 25, 2001. See 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); see also Tex. Lab. Code Ann. § 21.254.
We agree with Windle, as does Mary Kay, that section 21.254 does not establish a jurisdictional bar. However, section 21.254 still affects Windle's right to maintain a suit under the TCHRA. See Lottinger v. Shell Oil Co., 143 F. Supp.2d 743, 753 (S.D.Tex. 2001) (interpreting TCHRA); cf. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-77 (Tex. 2000) (holding section 71.031 of the civil practice and remedies code is not a jurisdictional bar but affects a plaintiff's right to maintain a suit). To maintain a suit under the TCHRA, a plaintiff must not only file a suit but must also serve the defendant within sixty days from receiving a "right to sue" notice. Davis, 62 S.W.3d at 893; Roberts, 28 S.W.3d at 621. Section 21.254's 60-day limitations period is in addition to and under certain circumstances, like here, can take precedence over section 21.256's two-year statute of limitations. See Davis, 62 S.W.3d at 893 n. 4; see also Tex. Lab. Code Ann. § 21.256.
If service of citation occurs outside but the date of filing was inside the 60-day limitations period, the date of service can only relate back to the date of filing if the plaintiff exercised due diligence in effectuating service upon the defendant. Roberts, 28 S.W.3d at 621. Generally, whether a plaintiff exercised due diligence in effectuating service is a question of fact; however, if no excuse is offered for the delay or if the lapse of time and the plaintiff's actions conclusively negate diligence, a court may conclude the lack of due diligence as a matter of law. Tarrant County v. Vandigriff, 71 S.W.3d 921, 925 (Tex.App.-Fort Worth 2002, pet. denied). When a plaintiff does not act with the diligence that an ordinary prudent person would have used under the same or similar circumstances, her actions conclusively negate due diligence. See id.
Because Windle did not serve Mary Kay until October 2, we conclude Mary Kay has established every element of its limitations defense as a matter of law. See Roberts, 28 S.W.3d at 621. We now determine whether Windle presented any evidence raising a genuine issue of material fact on whether she used due diligence in serving Mary Kay, thereby precluding summary judgment.
The only evidence presented concerning whether Windle acted with due diligence is an affidavit by her counsel. He stated, "During the [thirteen] week period from July 1, 2001 through September 2001, I was involved in substantial other litigation in both federal and state court, such that my ability to manage my existing caseload was impeded. Due to my status as a solo practitioner and the fact that I had no one else to whom to delegate work, I was unable to complete service of process on Mary Kay before September 27, 2001." Despite Windle counsel's statement, he did not need to effectuate service of process personally. He could have, as he evidentially did, hired a private process server to serve Mary Kay.
We conclude the affidavit does not raise an issue of material fact as to whether Windle used due diligence in serving Mary Kay. The affidavit offers reasons why Mary Kay was not served in a timely manner. However, it contains no factual statements showing that, nevertheless, Windle used due diligence to serve Mary Kay. By failing to state what efforts counsel made to effectuate service, counsel's affidavit, along with the lapse of time, conclusively negates due diligence. See Vandigriff, 71 S.W.3d at 925. Consequently, Windle failed to present any evidence raising a genuine issue of fact exists; thus, we conclude Mary Kay's limitation defense is meritorious. See Roberts, 28 S.W.3d at 622.
Having concluded Mary Kay's limitation defense is meritorious, we resolve all of Windle's issues against her and affirm the trial court's summary judgment. See Rogers, 772 S.W.2d at 79; see also Tex.R.Civ.P. 166a(c).