                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-12-00219-CV

RAMIRO GUTIERREZ,
                                                           Appellant
v.

B&B LANDFILL, INC. D/B/A/
WASTE MANAGEMENT OF TEXAS, INC.,
                                                           Appellees



                              From the 40th District Court
                                  Ellis County, Texas
                                 Trial Court No. 84002


                              MEMORANDUM OPINION


       In this appeal, appellant, Ramiro Gutierrez, complains about a summary

judgment granted in favor of appellee, B&B Landfill, Inc. d/b/a Waste Management of

Texas, Inc. (“B&B”). In one issue, appellant contends that the trial court erred by

granting summary judgment when he presented sufficient evidence of “good cause” to

extend the time for filing his lawsuit under Texas Rule of Civil Procedure 5(b). See TEX.

R. CIV. P. 5(b). We affirm.
                                      I.     BACKGROUND

        Appellant, a self-identified “Mexican-American,” worked as a driver for B&B

until his termination on April 12, 2010. After his termination, appellant filed a Charge

of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) on

June 7, 2010, alleging that B&B “had committed unlawful employment practices against

the Plaintiff in violation of the Texas Commission on Human Rights Act.” The EEOC

forwarded appellant’s complaint to the Texas Workforce Commission (“TWC”) on June

9, 2010. Thereafter, the EEOC issued its “Dismissal and Notice of Rights,” finding that

it was “unable to conclude that the information obtained establishes violations of the

statutes.”

        On October 3, 2011, appellant sent a letter to the TWC requesting the issuance of

a right-to-sue letter. By a letter dated October 4, 2011, the TWC informed appellant that:

“Pursuant to Sections 21.252 and 21.254 of the Texas Labor Code, 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.” Though this letter is dated October 4, 2011, the record indicates

that the letter was faxed to appellant’s counsel on October 3, 2011 at 8:29 p.m. In any

event, appellant admits, in his appellate brief, that he received the TWC’s right-to-sue

letter on October 4, 2011.

        It is undisputed that appellant placed his original petition in the mail on

December 5, 2011.         In fact, Coriann R. Viner-Blake, an administrative assistant at

appellant’s counsel’s law firm, executed an affidavit, wherein she averred that she “took

Gutierrez v. B&B Landfill, Inc.                                                     Page 2
a United States Postal Service Express Mail envelope, containing the Plaintiff’s Original

Petition to Judy Hatch, Regus Center Manager, for weight, postage[,] and mailing.”

According to Viner-Blake, Hatch weighed the envelope, printed the postage to affix on

the envelope, and subsequently placed the envelope in the mail for pick up on

December 5, 2011.1

        However, it was later discovered that appellant failed to affix the proper amount

of postage on the envelope, which resulted in the envelope being returned to

appellant’s counsel’s law firm marked “Return to Sender” and “Postage due $3.05.”

Viner-Blake opines and appellant admits that they received the returned envelope on

December 9, 2011. After additional postage was affixed to the envelope, appellant’s

original petition was mailed for a second time on December 9, 2011. The trial court

received and filed appellant’s original petition on December 12, 2011.2

        In response to appellant’s original petition, B&B filed an answer, generally

denying the assertions made in appellant’s original petition and asserting numerous

affirmative defenses, including statute of limitations. Shortly thereafter, B&B filed a

traditional motion for summary judgment, asserting that, among other things, appellant

failed to timely file this lawsuit and serve B&B within sixty days of the TWC’s right-to-


        1In his response to B&B’s motion for summary judgment, appellant emphasizes that the express
mail envelope used was not of the “flat rate” variety, but rather one that was required to be weighed and
stamped. Appellant also notes that, despite the incorrect postage, the envelope bears the postmark of
December 5, 2011.

         2 In his brief, appellant states that he filed his original petition on November 5, 2011. This

assertion is not supported by the record, including appellant’s own summary-judgment evidence. It is
likely that this is simply a typographical error, considering appellant later states that his original petition
should be considered filed as of December 5, 2011.


Gutierrez v. B&B Landfill, Inc.                                                                         Page 3
sue letter, as was required by section 21.254 of the Texas Labor Code. See TEX. LABOR

CODE ANN. § 21.254 (West 2006).

        Appellant responded to B&B’s motion for summary judgment by arguing that

his original petition was timely filed on December 5, 2011, pursuant to the mailbox rule

outlined in Texas Rule of Civil Procedure 5. See TEX. R. CIV. P. 5. B&B filed a reply to

appellant’s response, arguing that the mailbox rule did not apply in this case because

appellant failed to affix the proper postage.

        Though a reporter’s record has not been filed in this case, the clerk’s record

indicates that the trial court conducted a hearing on B&B’s motion for summary

judgment on April 18, 2012. Apparently, the trial court asked for supplemental briefing

on the applicability of Rule 5. Both parties submitted supplemental briefing, and on

May 23, 2012, the trial court granted summary judgment in favor of B&B and dismissed

appellant’s claims with prejudice. This appeal ensued.

                                  II.   STANDARD OF REVIEW

        A trial court’s ruling on a motion to enlarge the time period to file suit pursuant

to Texas Rule of Civil Procedure 5 is reviewed for an abuse of discretion. See TEX. R.

CIV. P. 5; Neely v. Coleman Enters., Ltd., 62 S.W.3d 802, 805 (Tex. App.—Waco 2001, pet.

denied); see also Gott v. Rice Consol. Indep. Sch. Dist., No. 01-07-00051-CV, 2008 Tex. App.

LEXIS 8067, at *11 (Tex. App.—Houston [1st Dist.] Oct. 23, 2008, no pet.) (mem. op.). A

trial court abuses its discretion when it acts without reference to any guiding rules or

principles or when its action is arbitrary or unreasonable.         Carpenter v. Cimarron

Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex. 2002) (citing Downer v. Aquamarine

Gutierrez v. B&B Landfill, Inc.                                                       Page 4
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). “We will not reverse a discretionary

ruling of the trial court unless the record clearly shows that the trial court disregarded

the rights of a party.” Neely, 62 S.W.3d at 805 (citing Yowell v. Piper Aircraft Corp., 703

S.W.2d 630, 634-35 (Tex. 1986)).

        Moreover, in reviewing a grant of summary judgment, we consider the evidence

in the light most favorable to the nonmovant. Smith v. O’Donnell, 288 S.W.3d 417, 424

(Tex. 2009) (citing City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). We credit

evidence favorable to the nonmovant if reasonable jurors could, and we disregard

evidence contrary to the nonmovant unless reasonable jurors could not. See Timpte

Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). When, as here, the trial court does

not specify the grounds for its grant of summary judgment, we must affirm the

summary judgment if any of the theories presented to the court and preserved for

appeal are meritorious. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,

216 (Tex. 2003).

        To prevail on a traditional Rule 166a(c) summary-judgment motion, a movant

must prove that there is no genuine issue regarding any material fact and that it is

entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Little v. Tex. Dep’t of

Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). A defendant moving for summary

judgment must either (1) disprove at least one element of the plaintiff’s cause of action

or (2) plead and conclusively establish each essential element of an affirmative defense

to rebut the plaintiff’s cause. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). The

movant must conclusively establish its right to judgment as a matter of law. See MMP,

Gutierrez v. B&B Landfill, Inc.                                                        Page 5
Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). A matter is conclusively established if

reasonable people could not differ as to the conclusion to be drawn from the evidence.

See City of Keller, 168 S.W.3d at 816.

        If the movant meets its burden, the burden then shifts to the nonmovant to raise

a genuine issue of material fact precluding summary judgment. See Centeq Realty, Inc. v.

Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a genuine issue of material

fact if reasonable and fair-minded jurors could differ in their conclusions in light of all

of the summary judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d

754, 755 (Tex. 2007).

                                         III.   ANALYSIS

        In his sole issue on appeal, appellant argues that the trial court erred in granting

B&B’s summary-judgment motion.            Specifically, appellant alleges that he provided

evidence that his original petition was timely filed under Rule 5 and that he showed

“good cause” for enlarging the applicable limitations period because of circumstances

beyond his control.

        Section 21.254 of the Texas Labor Code provides that a civil action alleging

employment discrimination must be filed “[w]ithin 60 days after the date a notice of the

right to file a civil action is received.” TEX. LABOR CODE ANN. § 21.254. Here, it is

undisputed that appellant did not file his original petition within sixty days of TWC’s

October 4, 2011 right-to-sue letter. Apparently, the sixty-day deadline occurred on

December 3, 2011, which was a Saturday. Texas Rule of Civil Procedure 4 states, among

other things, that: “The last day of the period so computed is to be included, unless it is

Gutierrez v. B&B Landfill, Inc.                                                       Page 6
a Saturday, Sunday[,] or legal holiday, in which event the period runs until the end of

the next day which is not a Saturday, Sunday[,] or legal holiday.” TEX. R. CIV. P. 4.

Therefore, applying Rule 4, appellant’s original petition was not due until the following

Monday, December 5, 2011. See id.

        Appellant’s summary-judgment evidence demonstrates that he attempted to

mail his original petition in an envelope postmarked December 5, 2011. However, the

envelope was returned to appellant due to insufficient postage on December 9, 2011.

Appellant re-sent the envelope with the appropriate amount of postage on December 9,

2011, and his original petition was eventually marked as filed on December 12, 2011.

        On appeal, appellant’s argument is two-fold:            (1) the filing date should

correspond with his first attempt to mail the envelope on December 5, 2011; and (2) in

the alternative, the fact that the envelope was not affixed with sufficient postage

demonstrates a situation outside of his control and constitutes “good cause” to enlarge

the filing deadline under Rule 5. B&B counters that Rule 5 only applies to deadlines

imposed by the Texas Rules of Civil Procedure or court orders, not statutes like Section

21.254 with strict deadlines. B&B further argues that appellant’s reliance on the mailbox

rule in this case in unfounded because he caused his original petition to not be timely

filed by failing to affix sufficient postage to the envelope.

        Rule 5, entitled “Enlargement of Time,” provides the following:

               When by these rules or by a notice given thereunder or by order of
        court an act is required or allowed to be done at or within a specified time,
        the court for cause shown may, at any time in its discretion (a) with or
        without motion or notice, order the period enlarged if application therefor
        is made before the expiration of the period originally prescribed or as

Gutierrez v. B&B Landfill, Inc.                                                         Page 7
        extended by a previous order; or (b) upon motion permit the act to be
        done after the expiration of the specified period where good cause is
        shown for the failure to act. The court may not enlarge the period for
        taking any action under the rule relating to new trials except as stated in
        these rules.

               If any document is sent to the proper clerk by first-class United
        States mail in an envelope or wrapper properly addressed and stamped
        and is deposited in the mail on or before the last day for filing same, the
        same, if received by the clerk not more than ten days tardily, shall be filed
        by the clerk and be deemed filed in time. A legible postmark by the
        United States Postal Service shall be prima facie evidence of the date of
        mailing.

TEX. R. CIV. P. 5.

        Texas courts have held that Rule 5 does not enlarge the time in which to file a

pleading, but instead defines when it is “deemed filed in time.” Milam v. Miller, 891

S.W.2d 1, 2 (Tex. App.—Amarillo 1994, writ ref’d) (citing Danesh v. Houston Health

Clubs, Inc., 859 S.W.2d 535, 536-37 (Tex. App.—Houston [1st Dist.] 1993, writ ref’d)).

Therefore, the United States Post Office acts as a branch of the court clerk’s office for

purposes of filing pleadings only when the provisions of Rule 5 are satisfied.             Id.

However, the Texas Supreme Court has recently stated that: “By its own terms, Rule 5

only applies to deadlines in the Rules of Civil Procedure.” Morris v. Aguilar, 369 S.W.3d

168, 171 (Tex. 2012). The filing deadline in this case corresponds to Section 21.254 of the

Texas Labor Code, not any provision of the Rules of Civil Procedure. Thus, in light of

the Morris decision, Rule 5 is inapplicable in this case. See id.

        However, even if we were to conclude that Rule 5 applied in this case, we cannot

say that appellant has raised a material fact issue regarding the application of the “good

cause” standard of Rule 5 to consider the December 12, 2011 filing timely. See TEX. R.

Gutierrez v. B&B Landfill, Inc.                                                         Page 8
CIV. P. 5. The summary-judgment evidence showed that appellant failed to ensure that

sufficient postage was affixed to the envelope containing his original petition sent on

December 5, 2011—an act that was squarely within appellant’s control. See id. (stating

that a document will be deemed filed on the date the item is deposited in the mail if it

“is sent to the proper clerk by first-class United States mail in an envelope or wrapper

properly addressed and stamped”) (emphasis added); Wesco Distrib., Inc. v. Westport Group,

Inc., 150 S.W.3d 553, 561 (Tex. App.—Austin 2004, no pet.) (“[I]nsufficient postage

meant ineffective notice.”); Ex parte Bates, 65 S.W.3d 133, 135 (Tex. App.—Amarillo 2001,

no pet.) (refusing to apply the mailbox rule absent proof of sufficient postage); Arnold v.

Shuck, 24 S.W.3d 470, 472-73 (Tex. App.—Texarkana 2000, pet. denied) (holding that the

mailbox rule is not satisfied when a party has failed to demonstrate that proper postage

was affixed); see also Vaughn v. Garcia, No. 04-08-00491-CV, 2009 Tex. App. LEXIS 5405,

at **4-5 (Tex. App.—San Antonio July 15, 2009, pet denied) (mem. op.) (“However,

under Rule 5 of the Texas Rules of Civil Procedure, the mailbox rule only applies when

a document is sent to the proper clerk by first-class United States mail in an envelope or

wrapper properly addressed and stamped. Consequently, because Vaughn’s envelope

was not properly stamped when he mailed his initial claim, the mailbox rule does not

apply. Due to the untimeliness of this claim, the trial court did not abuse its discretion

in dismissing Vaughn’s claims . . . and refusing to hear his various motions.” (internal

citations & quotations omitted)).        The summary-judgment evidence does not

demonstrate that the United States Postal Service was responsible for the postage error

in this case. And it was not until several days after the limitations period expired—on

Gutierrez v. B&B Landfill, Inc.                                                      Page 9
December 9, 2011—that appellant affixed sufficient postage to the envelope. As such,

we do not find appellant’s assertion that his failure to timely file his original petition

was due to circumstances outside of his control to be persuasive.

        Based on the foregoing, we conclude that B&B’s summary-judgment evidence

establishes, as a matter of law, its statute of limitations defense that appellant did not

timely file his original petition. See id.; see also Cathey, 900 S.W.2d at 341; MMP, Ltd., 710

S.W.2d at 60. Accordingly, we cannot conclude that the trial court abused its discretion

in declining to apply Rule 5 in this matter. See Neely, 62 S.W.3d at 805; see also Gott, 2008

Tex. App. LEXIS 8067, at *11. We also cannot conclude that the trial court erred in

granting summary judgment in favor of B&B. See Smith, 288 S.W.3d at 424; City of

Keller, 168 S.W.3d at 824; see also Knott, 128 S.W.3d at 216.        As such, we overrule

appellant’s sole issue on appeal.

                                      IV.    CONCLUSION

        Having overruled appellant’s sole issue on appeal, we affirm the judgment of the

trial court.



                                                  AL SCOGGINS
                                                  Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed April 4, 2013
[CV06]



Gutierrez v. B&B Landfill, Inc.                                                        Page 10
