                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH


                                  NO. 2-07-266-CV


TEXAS COMPTROLLER OF                                                APPELLANT
PUBLIC ACCOUNTS

                                           V.

WESLEY LANDSFELD                                                      APPELLEE

                                       ------------

           FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

                                       ------------

                          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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