Plaintiff must show due diligence in securing service of citation on defendant when filing suit at the end of the limitation period. Because plaintiff failed to do so here, her claims were time-barred and the trial court properly granted summary judgment for the defendants based on the affirmative defense of limitations. More is required to show diligence than several failed efforts to serve. Unexplained delay in effecting service may be fatal to suit.
Aubrey Berry v. Nicholas Eugene Pampell and Herbert Pampell , No. 03-07-00216-CV (Tex. App. - Austin, Feb. 13, 2008)(Opinion by Justice Patterson )(statute of limitations, due diligence, auto PI)(Before Justices Patterson, Puryear and Pemberton)
Aubrey Berry v. Nicholas Eugene Pampell and Herbert Pampell
Appeal from County Court at Law No. 1 of Travis County
Disposition: Summary judgment for defendant based on limitations affirmed
FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
NO. C-1-CV-05-287454, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Aubrey Berry appeals a summary judgment in favor of appellees Nicholas Eugene Pampell and Herbert Pampell based on the affirmative defense of limitations. The trial court granted appellees' motions that Berry's claims were time barred and dismissed Berry's claims with prejudice. Although Berry timely filed suit, she did not serve either appellee until after the applicable time period had expired. Because we conclude that Berry did not exercise due diligence in effecting service as a matter of law, we affirm the trial court judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Berry filed a personal injury lawsuit on July 20, 2005, for damages allegedly arising from an automobile accident between Berry and Nicholas Pampell that occurred on July 20, 2003. Berry alleged that Nicholas Pampell, who was driving a vehicle owned by Herbert Pampell, was negligent. The Travis County Clerk issued citations for Nicholas Pampell and Herbert Pampell on July 27, 2005. Herbert Pampell was served with citation on January 11, 2006, and Nicholas Pampell was served on March 13, 2006. Both appellees answered, asserting general denials and the affirmative defense that Berry's claims were time barred by the applicable statute of limitations.
Herbert Pampell and Nicholas Pampell thereafter moved for summary judgments based on Berry's failure to file suit within the limitations period and because Berry lacked diligence in securing service after the limitations period expired. Berry responded to their motions by providing declarations from agents of a private process server and affidavits from Berry's counsel. The agent that attempted to personally serve Herbert Pampell declared that she received the citation on August 5, 2005, attempted to serve him on August 16, 2005, but was unsuccessful, stating "this is an apartment complex, needs apartment number." Berry's counsel averred to his efforts in serving the citation. He stated that, in addition to hiring the private process server, Professional Civil Process ("PCP"), he personally checked for different addresses for Herbert Pampell during the delay in service:
In addition to the searches I authorized PCP to perform, I personally checked for the Defendant's address on Web Detective and Autotrack XP, which is a private investigative web software company my firm subscribes to. I was unable to locate a different address [for] the Defendant through my periodic checks until shortly before Defendant Herbert Pampell was served with process. Defendant Herbert Pampell was served through PCP on January 11, 2006.
Berry's evidence was similar concerning service on Nicholas Pampell. The agent assigned to serve Nicholas Pampell declared that he received the citation on August 5, 2005, attempted personal service on August 16, 2005, but was unsuccessful because the address was an apartment complex and he did not have an apartment number. The agent next attempted service on January 11, 2006, stating the address was correct but that Nicholas Pampell was only there on the weekends--"The subject does reside at this address but is not at home at this time. Left delivery notice with Herbert. The subject is home on weekends." The agent attempted service on three other occasions from February 11 to March 13, 2006. On March 13, the agent, by arranging to meet with Nicholas Pampell by phone, was able to serve the citation. Nicholas Pampell provided his phone number to the agent's "call center" on March 1 and again on March 13.
Berry's counsel averred to his efforts in effecting service on Nicholas Pampell. He stated that in addition to hiring PCP, he personally checked for Nicholas Pampell's address during the delay in service:
During August 16, 2005 and January 11, 2006, in addition to the searches I authorized PCP to perform, I personally checked for the Defendant's address on Web Detective and Autotrack XP, which is a private investigative web software company my firm subscribes to. Through these additional searches, I ultimately located an updated address in Giddings, Texas, on or about January 11, 2006. After two attempts to serve Defendant in Giddings, Texas failed, PCP attempted service at 3415 Haven Brook Drive #2407, an updated address in Humble, Texas. After three additional attempts to serve Defendant, PCP completed service upon the Defendant on March 13, 2006.
After a hearing on appellees' motions for summary judgment, the trial court granted the motions, dismissing Berry's claims with prejudice. Berry's appeal followed.
ANALYSIS
In one point of error, Berry contends that the trial court erred in granting summary judgment for appellees because Berry filed her suit within the applicable statutory limitations period and exercised due diligence in effecting service. When service is after the limitations period has expired, as it was in this case, "bringing suit" within the applicable limitations period requires both filing a petition within the applicable time period and exercising due diligence in serving the defendant with citation. See Proulx v. Wells, 235 S.W.3d 213, 215 (Tex. 2007).
When a plaintiff uses due diligence in obtaining service on the defendant, the date of service relates back to the date the plaintiff filed suit and the plaintiff's suit is timely. Id. Appellees acknowledge that Berry filed suit within the applicable limitations period pursuant to the mailbox rule. See Tex. R. Civ. P. 5. Berry mailed her petition on July 20, 2005, the last day within the applicable two-year limitations period. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (West Supp. 2007). The dispute then is whether Berry lacked due diligence in effecting service after the limitations period expired. Appellees contend that Berry did not exercise due diligence in serving either appellee as a matter of law.
Under summary judgment standards, the movant must show that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). Evidence favorable to the nonmovant will be taken as true, and all reasonable inferences and any doubts are resolved in favor of the nonmovant. Nixon, 690 S.W.2d at 549. In the context of a defendant's summary judgment on the diligent-service question, when a defendant affirmatively pleads a limitations defense and shows service was effected after the limitations period expired, a plaintiff bears the burden "to explain the delay" in service. See Proulx, 235 S.W.3d at 216 (quoting Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990)). Because appellees plead limitations and showed service after the limitations period expired, the burden was on Berry to explain the delay in service to avoid summary judgment. See id.
The supreme court in Proulx explained the plaintiff's burden and the relevant inquiry:
[I]t 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. . . . the 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. . . . In assessing diligence, the relevant inquiry is whether the plaintiff acted as an ordinary prudent person would have acted under the same or similar circumstances and was diligent up until the time the defendant was served.
Id. (citations omitted).
The inquiry focuses on the length of time and the type of efforts a plaintiff undertook to obtain service. Id.; see also Carter v. MacFadyen, 93 S.W.3d 307, 313 (Tex. App.--Houston [14th Dist.] 2002, pet. denied) (due diligence determined by "looking at the time taken and the effort expended in procuring service"). When a plaintiff offers an explanation for the delay in service, a lack of diligence can be found as a matter of law if the "explanation affirmatively establishes a lack of diligence." Zacharie v. U.S. Nat'l Res., Inc., 94 S.W.3d 748, 754 (Tex. App.--San Antonio 2002, no pet.).
In this case, Berry provided an explanation for the delay in service, but we conclude that Berry's explanation "affirmatively establishes a lack of diligence" as a matter of law. See id. Reviewing the relevant factors, the length of delay was significant--nearly six months for Herbert Pampell and eight months for Nicholas Pampell. See id. ("Texas courts have consistently held that unexplained delays of five and six months in requesting issuance and service of citation constitute a lack of due diligence as a matter of law."). Berry's efforts also demonstrate a lack of diligence.
During the delay, Berry attempted service once in August 2005 on both of the appellees. The address for both appellees was correct except for missing an apartment number, and Berry does not explain why she did not pursue efforts to obtain apartment numbers for either appellee at that time. See Carter, 93 S.W.3d at 314-15 ("A flurry of ineffective activity does not constitute due diligence if easily available and more effective alternatives are ignored."). No further attempts at service were made until five months later, in January 2006. From August to January, Berry's counsel states that he conducted searches through the internet, but he does not provide specifics, such as the results, number, or type of searches, except to say that he periodically conducted searches, and he provides no explanation why additional attempts at service were not made until January.
Berry's efforts in this case are distinguishable from the plaintiff's efforts in Proulx that were found sufficient to create a fact issue on the diligent-service issue. See Proulx, 235 S.W.3d at 217.
The plaintiff in Proulx presented evidence that during the nine-month delay that it took to serve the defendant, thirty service attempts were made at five different addresses, the plaintiff hired two process servers and two investigators, and the defendant was "moving from relative to relative and doing his best to avoid service from the courts and creditors." Id. The plaintiff's evidence showed continuous investigation, repeated service attempts, and the defendant's deliberate attempts to avoid service. Id. In contrast, Berry does not contend that appellees were attempting to avoid service and fails to demonstrate continuous investigation and service attempts.
We conclude that Berry's efforts are more analogous to plaintiffs' efforts that have been found to lack diligence as a matter of law. (1) See Zacharie, 94 S.W.3d at 754-55 (lapse of time of five-and-a-half months plus counsel's inaction showed lack of due diligence as a matter of law); Carter, 93 S.W.3d at 313-15 (eight-month delay with unexplained gaps showed lack of diligence); Webster v. Thomas, 5 S.W.3d 287, 289-91 (Tex. App.--Houston [14th Dist.] 1999, no pet.) (four-month-and-ten-day delay demonstrated lack of diligence when steps taken "were not designed to procure the issuance of citation and service"); Butler v. Ross, 836 S.W.2d 833, 836 (Tex. App.--Houston [1st Dist.] 1992, no writ) (inactivity for five-and-a-half months and no service efforts between failed attempt at wrong address and proper service at correct address constituted lack of diligence); Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex. App.--Corpus Christi 1991, no writ) (request of service five months after suit filed affirmatively demonstrated lack of diligence). We overrule Berry's point of error.
CONCLUSION
Because we conclude that Berry did not exercise due diligence in effecting service on either Herbert Pampell or Nicholas Pampell as a matter of law, we affirm the trial court's judgment.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: February 13, 2008
1. The supreme court in Proulx also distinguished its facts from cases in which courts have found lack of diligence as a matter of law in effecting service, finding "no comparable periods of unexplained inaction." Proulx v. Wells, 235 S.W.3d 213, 217 (Tex. 2007) (distinguishing Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990); Webster v. Thomas, 5 S.W.3d 287, 291 (Tex. App.--Houston [14th Dist.] 1999, no pet.); Butler v. Ross, 836 S.W.2d 833, 836 (Tex. App.--Houston [1st Dist.] 1992, no writ); and Hansler v. Mainka, 807 S.W.2d 3, 5 (Tex. App.--Corpus Christi 1991, no writ)).
Showing posts with label statute of limitations. Show all posts
Showing posts with label statute of limitations. Show all posts
Sunday, February 24, 2008
Thursday, August 9, 2007
Consumer's time-barred DTPA suit dismissed as frivolous
Court of Appeals affirms dismissal of suit in which plaintiff alleged that a sandwich she bought from Jack in the Box made her sick; holds that negligence and DTPA claims were barred by two-year statute of limitations, and that trial court's dismissal of her claims as lacking an arguable basis in law was proper.
Cynthia Ulett Lynch v. Jack in the Box, No. 03-06-00444-CV (Tex.App.- Austin, Aug. 9, 2007)(Opinion by Justice Pemberton)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 146th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 217,739-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Cynthia Ulett Lynch appeals from the dismissal of her personal injury lawsuit against Jack in the Box. In a single issue on appeal, Lynch challenges the district court's finding that her suit was "frivolous and malicious because her claim has no arguable basis in law or in fact." We affirm the judgment.
BACKGROUND
On June 26, 2006, Lynch filed what she styled a "Motion for Request for Permission to File a Late Claim." In the motion, Lynch asserted various claims against Jack in the Box, including "deception," "false statements," and "product liability based on misrepresentation." Although Lynch did not explain the basis of these claims in her pleadings, in her appellate brief she explains that on May 17, 2004, she ordered a chicken sandwich from Jack in the Box but was instead given a ham and egg sandwich. Lynch alleges that she "got sick approximately eighty minutes after eating [the] sandwich."
Lynch also filed a "Motion for Request for Permission to Pay Filing Fees in Installments." In this motion, Lynch stated the following:
Applicant is filing herewith a voluntary petition.
I am unable to pay the filing fees because I have no income.
I propose to pay my filing fees on the date of settlement.
Wherefore applicant prays that she be permitted to pay the filing fees on the date of settlement. (1) The district court interpreted this motion as a statement of inability to pay costs. In accordance with chapter 13 of the Texas Civil Practice and Remedies Code, the district court then found that Lynch's suit was frivolous and malicious and had no arguable basis in law or in fact and, without a hearing, dismissed Lynch's suit without prejudice. This appeal followed.
DISCUSSION
The only issue in this case is whether the district court abused its discretion in dismissing Lynch's suit pursuant to section 13.001 of the civil practice and remedies code, which provides:
(a) A court in which an affidavit of inability to pay under Rule 145, Texas Rules of Civil Procedure, has been filed may dismiss the action on a finding that:
(1) the allegation of poverty in the affidavit is false; or
(2) the action is frivolous or malicious.
(b) In determining whether an action is frivolous or malicious, the court may consider whether:
(1) the action's realistic chance of ultimate success is slight;
(2) the claim has no arguable basis in law or in fact; or
(3) it is clear that the party cannot prove a set of facts in support of the claim.
(c) An action may be dismissed under Subsection (a) as frivolous or malicious either before or after service of process.
Tex. Civ. Prac. & Rem. Code Ann. § 13.001 (West 2002).
We must first determine if chapter 13 applies to this case. Chapter 13 only applies to lawsuits in which an affidavit of inability to pay court costs under rule of civil procedure 145 has been filed. Id. § 13.001(a).
Rule 145 provides that a "party who is unable to afford costs" must file an affidavit with the trial court. See Tex. R. Civ. P. 145(a). A "party who is unable to afford costs" is defined as a person who is presently receiving a governmental entitlement based on indigency or any other person who has no ability to pay costs. Id. Rule 145 also provides that the affidavit "must contain complete information" as to the party's identity and income, including any debts and monthly expenses. See Tex. R. Civ. P. 145(b). The affidavit shall also contain the following statements: "I am unable to pay the court costs. I verify that the statements in this affidavit are true and correct." Id. In her motion, Lynch did not verify her statements or provide complete information about her income. Thus, Lynch's motion did not comply with the affidavit requirements of rule 145.
Nonetheless, the mere fact that Lynch's statement of inability to pay costs fails to comply with rule 145 does not mean that her suit is not subject to chapter 13. In Johnson v. Texas Department of Criminal Justice, 71 S.W.3d 492 (Tex. App.--El Paso 2002, no pet.), the El Paso court of appeals faced a similar situation involving chapter 14, the counterpart to chapter 13 that applies specifically to inmate litigation. (2) Johnson sued the Texas Department of Criminal Justice, alleging that the department destroyed two pairs of his sunglasses. Id. at 492. Attached to his petition was a "declaration to pay cost," in which Johnson stated that he was able to pay court costs. Id. However, Johnson never paid the filing fees or service fees associated with his lawsuit. Id. Noting that the government code requires that the district clerk collect fees at the time the suit or action is filed, see Tex. Gov't Code Ann. § 51.317(a) (West Supp. 2006), the court reasoned that, because Johnson did not pay costs, the trial court was justified in concluding that Johnson was actually attempting to proceed in forma pauperis. Johnson, 71 S.W.3d at 493. Thus, the trial court did not abuse its discretion in applying chapter 14 of the civil practice and remedies code to Johnson's lawsuit. Id. The court explained:
Johnson's position, however, is that his suit does not fall within Chapter 14 because he never filed a declaration of inability to pay costs in the trial court. We cannot hold that simply stating an ability to pay costs, without ever paying them, exempts a prisoner from the requirements of Chapter 14. To do so would clearly thwart the legislature's intent to control the number of frivolous lawsuits being filed by prison inmates, consuming judicial resources with little offsetting benefit. Id. (citing Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.--Waco 1996, no writ)).
While chapter 14 applies only to lawsuits brought by inmates, see Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a) (West 2002), we conclude that the reasoning in Johnson can also be applied to chapter 13. The purpose of chapter 13 is to prevent abusive litigation by litigants who "lack[] an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits." Spellmon v. Sweeney, 819 S.W.2d 206, 210 (Tex. App.--Waco 1991, no writ). To hold that trial courts cannot dismiss such suits simply because the indigent litigant, who may often be proceeding pro se, did not comply with all of the procedural requirements of rule 145 would defeat the purpose of the statute and could actually reward noncompliance with rule 145 by creating an incentive for litigants to file affidavits of indigence that do not meet the rule's requirements.
Although Lynch's motion did not comply with rule 145, Lynch clearly stated that she was "unable to pay the filing fees" because she had "no income." Lynch's "proposal" to pay the filing fees "on the date of settlement" is irrelevant, as the government code requires the district clerk to collect the fees at the time the suit or action is filed. See Tex. Gov't Code Ann. § 51.317(a). On this record, we hold that the district court did not abuse its discretion in concluding that Lynch was attempting to proceed in forma pauperis and thus in applying the procedures of chapter 13 to her lawsuit.
Having determined that chapter 13 applies to Lynch's lawsuit, we must now determine whether the district court abused its discretion in dismissing Lynch's suit as frivolous and malicious. The district court stated that it was dismissing Lynch's suit because it had "no arguable basis in law or fact." See Tex. Civ. Prac. & Rem. Code Ann. § 13.001(b)(2). Because the district court dismissed Lynch's suit without a hearing on factual issues, the only possible reason for the district court's dismissal is that there was no basis in law for the suit. See Moore v. Collins, 897 S.W.2d 496, 499 (Tex. App.--Houston [1st Dist.] 1995, no writ).
We review dismissal under chapter 13 for abuse of discretion. Jones v. CGU Ins. Co., 78 S.W.3d 626, 628 (Tex. App.--Austin 2002, no pet.). The test for determining whether the court abused its discretion is whether it acted without reference to any guiding rules or principles and whether it acted arbitrarily and capriciously. McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995); Jones, 78 S.W.3d at 628. A trial court's clear failure to properly analyze and apply the law constitutes an abuse of discretion. McDaniel, 898 S.W.2d at 253.
Construing Lynch's pleadings liberally, she alleged possible causes of action for negligence and product liability under the DTPA. There is a two-year statute of limitations for negligence and DTPA claims. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 749-50 (Tex. 1999) (citing Tex. Bus. & Com. Code Ann. § 17.565 (West 2002) (DTPA claims); Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (West Supp. 2006) (negligence claims)). Lynch's causes of action arose on May 17, 2004, the day that she allegedly bought her sandwich from Jack in the Box and became sick. She did not file suit until June 26, 2006. Thus, because Lynch's negligence and DTPA claims were not filed within the two-year statute of limitations, they have no arguable basis in law.
Lynch's petition also referred to "fraud." Fraud is subject to a four-year statute of limitations. See Shannon v. Law-Yone, 950 S.W.2d 429, 433 (Tex. App.--Fort Worth 1997, pet. denied). Thus, this cause of action is not barred as a matter of law by the applicable limitations period. However, to state a claim for fraud, a plaintiff must allege that: (1) the defendants made a material representation that was false; (2) they knew that the representation was false or made it recklessly as a positive assertion without any knowledge of its truth; (3) they intended to induce the plaintiff to act upon the representation; and (4) the plaintiff actually and justifiably relied upon the representation and thereby suffered injury. See Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001).
These elements are entirely absent from Lynch's petition. There is no allegation about what material misrepresentations were made, whether Jack in the Box knew that they were false or made them recklessly, whether Jack in the Box intended to induce Lynch to act on the representations, or whether Lynch actually and justifiably relied upon the representations.
While pleadings are to be construed liberally, liberal construction does not mean that we imply claims that are not alleged. See Toles v. Toles, 113 S.W.3d 899, 911 (Tex. App.--Dallas 2003, no pet.). Although Lynch included the term "fraud" in her petition, her petition cannot reasonably be construed as raising that claim.
We conclude that the only causes of action that can reasonably be construed from Lynch's petition, negligence and product liability under the DTPA, are barred by the two-year statute of limitations. Therefore, we hold that the district court did not abuse its discretion in determining that Lynch's lawsuit had no arguable basis in law and thus in dismissing Lynch's suit as frivolous and malicious.
CONCLUSION
We affirm the judgment of the district court.
___________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: August 9, 2007
1. Lynch attached to her motion a letter from an elder at her church, in which the elder explains that the church is unable to provide her with financial assistance. Lynch apparently attached this letter to her motion as "evidence of hardship."
2. See Tex. Civ. Prac. & Rem. Code Ann. § 14.002 (West 2002). Prior to the enactment of chapter 14 in 1995, chapter 13 applied to lawsuits filed by both inmates and non-inmates. See Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.--Waco 1996, no writ). Chapter 13 no longer applies to inmate litigation. See Tex. Civ. Prac. & Rem. Code Ann. § 13.004 (West 2002).
Cynthia Ulett Lynch v. Jack in the Box, No. 03-06-00444-CV (Tex.App.- Austin, Aug. 9, 2007)(Opinion by Justice Pemberton)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 146th District Court of Bell County
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 217,739-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Cynthia Ulett Lynch appeals from the dismissal of her personal injury lawsuit against Jack in the Box. In a single issue on appeal, Lynch challenges the district court's finding that her suit was "frivolous and malicious because her claim has no arguable basis in law or in fact." We affirm the judgment.
BACKGROUND
On June 26, 2006, Lynch filed what she styled a "Motion for Request for Permission to File a Late Claim." In the motion, Lynch asserted various claims against Jack in the Box, including "deception," "false statements," and "product liability based on misrepresentation." Although Lynch did not explain the basis of these claims in her pleadings, in her appellate brief she explains that on May 17, 2004, she ordered a chicken sandwich from Jack in the Box but was instead given a ham and egg sandwich. Lynch alleges that she "got sick approximately eighty minutes after eating [the] sandwich."
Lynch also filed a "Motion for Request for Permission to Pay Filing Fees in Installments." In this motion, Lynch stated the following:
Applicant is filing herewith a voluntary petition.
I am unable to pay the filing fees because I have no income.
I propose to pay my filing fees on the date of settlement.
Wherefore applicant prays that she be permitted to pay the filing fees on the date of settlement. (1) The district court interpreted this motion as a statement of inability to pay costs. In accordance with chapter 13 of the Texas Civil Practice and Remedies Code, the district court then found that Lynch's suit was frivolous and malicious and had no arguable basis in law or in fact and, without a hearing, dismissed Lynch's suit without prejudice. This appeal followed.
DISCUSSION
The only issue in this case is whether the district court abused its discretion in dismissing Lynch's suit pursuant to section 13.001 of the civil practice and remedies code, which provides:
(a) A court in which an affidavit of inability to pay under Rule 145, Texas Rules of Civil Procedure, has been filed may dismiss the action on a finding that:
(1) the allegation of poverty in the affidavit is false; or
(2) the action is frivolous or malicious.
(b) In determining whether an action is frivolous or malicious, the court may consider whether:
(1) the action's realistic chance of ultimate success is slight;
(2) the claim has no arguable basis in law or in fact; or
(3) it is clear that the party cannot prove a set of facts in support of the claim.
(c) An action may be dismissed under Subsection (a) as frivolous or malicious either before or after service of process.
Tex. Civ. Prac. & Rem. Code Ann. § 13.001 (West 2002).
We must first determine if chapter 13 applies to this case. Chapter 13 only applies to lawsuits in which an affidavit of inability to pay court costs under rule of civil procedure 145 has been filed. Id. § 13.001(a).
Rule 145 provides that a "party who is unable to afford costs" must file an affidavit with the trial court. See Tex. R. Civ. P. 145(a). A "party who is unable to afford costs" is defined as a person who is presently receiving a governmental entitlement based on indigency or any other person who has no ability to pay costs. Id. Rule 145 also provides that the affidavit "must contain complete information" as to the party's identity and income, including any debts and monthly expenses. See Tex. R. Civ. P. 145(b). The affidavit shall also contain the following statements: "I am unable to pay the court costs. I verify that the statements in this affidavit are true and correct." Id. In her motion, Lynch did not verify her statements or provide complete information about her income. Thus, Lynch's motion did not comply with the affidavit requirements of rule 145.
Nonetheless, the mere fact that Lynch's statement of inability to pay costs fails to comply with rule 145 does not mean that her suit is not subject to chapter 13. In Johnson v. Texas Department of Criminal Justice, 71 S.W.3d 492 (Tex. App.--El Paso 2002, no pet.), the El Paso court of appeals faced a similar situation involving chapter 14, the counterpart to chapter 13 that applies specifically to inmate litigation. (2) Johnson sued the Texas Department of Criminal Justice, alleging that the department destroyed two pairs of his sunglasses. Id. at 492. Attached to his petition was a "declaration to pay cost," in which Johnson stated that he was able to pay court costs. Id. However, Johnson never paid the filing fees or service fees associated with his lawsuit. Id. Noting that the government code requires that the district clerk collect fees at the time the suit or action is filed, see Tex. Gov't Code Ann. § 51.317(a) (West Supp. 2006), the court reasoned that, because Johnson did not pay costs, the trial court was justified in concluding that Johnson was actually attempting to proceed in forma pauperis. Johnson, 71 S.W.3d at 493. Thus, the trial court did not abuse its discretion in applying chapter 14 of the civil practice and remedies code to Johnson's lawsuit. Id. The court explained:
Johnson's position, however, is that his suit does not fall within Chapter 14 because he never filed a declaration of inability to pay costs in the trial court. We cannot hold that simply stating an ability to pay costs, without ever paying them, exempts a prisoner from the requirements of Chapter 14. To do so would clearly thwart the legislature's intent to control the number of frivolous lawsuits being filed by prison inmates, consuming judicial resources with little offsetting benefit. Id. (citing Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.--Waco 1996, no writ)).
While chapter 14 applies only to lawsuits brought by inmates, see Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a) (West 2002), we conclude that the reasoning in Johnson can also be applied to chapter 13. The purpose of chapter 13 is to prevent abusive litigation by litigants who "lack[] an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits." Spellmon v. Sweeney, 819 S.W.2d 206, 210 (Tex. App.--Waco 1991, no writ). To hold that trial courts cannot dismiss such suits simply because the indigent litigant, who may often be proceeding pro se, did not comply with all of the procedural requirements of rule 145 would defeat the purpose of the statute and could actually reward noncompliance with rule 145 by creating an incentive for litigants to file affidavits of indigence that do not meet the rule's requirements.
Although Lynch's motion did not comply with rule 145, Lynch clearly stated that she was "unable to pay the filing fees" because she had "no income." Lynch's "proposal" to pay the filing fees "on the date of settlement" is irrelevant, as the government code requires the district clerk to collect the fees at the time the suit or action is filed. See Tex. Gov't Code Ann. § 51.317(a). On this record, we hold that the district court did not abuse its discretion in concluding that Lynch was attempting to proceed in forma pauperis and thus in applying the procedures of chapter 13 to her lawsuit.
Having determined that chapter 13 applies to Lynch's lawsuit, we must now determine whether the district court abused its discretion in dismissing Lynch's suit as frivolous and malicious. The district court stated that it was dismissing Lynch's suit because it had "no arguable basis in law or fact." See Tex. Civ. Prac. & Rem. Code Ann. § 13.001(b)(2). Because the district court dismissed Lynch's suit without a hearing on factual issues, the only possible reason for the district court's dismissal is that there was no basis in law for the suit. See Moore v. Collins, 897 S.W.2d 496, 499 (Tex. App.--Houston [1st Dist.] 1995, no writ).
We review dismissal under chapter 13 for abuse of discretion. Jones v. CGU Ins. Co., 78 S.W.3d 626, 628 (Tex. App.--Austin 2002, no pet.). The test for determining whether the court abused its discretion is whether it acted without reference to any guiding rules or principles and whether it acted arbitrarily and capriciously. McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995); Jones, 78 S.W.3d at 628. A trial court's clear failure to properly analyze and apply the law constitutes an abuse of discretion. McDaniel, 898 S.W.2d at 253.
Construing Lynch's pleadings liberally, she alleged possible causes of action for negligence and product liability under the DTPA. There is a two-year statute of limitations for negligence and DTPA claims. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 749-50 (Tex. 1999) (citing Tex. Bus. & Com. Code Ann. § 17.565 (West 2002) (DTPA claims); Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (West Supp. 2006) (negligence claims)). Lynch's causes of action arose on May 17, 2004, the day that she allegedly bought her sandwich from Jack in the Box and became sick. She did not file suit until June 26, 2006. Thus, because Lynch's negligence and DTPA claims were not filed within the two-year statute of limitations, they have no arguable basis in law.
Lynch's petition also referred to "fraud." Fraud is subject to a four-year statute of limitations. See Shannon v. Law-Yone, 950 S.W.2d 429, 433 (Tex. App.--Fort Worth 1997, pet. denied). Thus, this cause of action is not barred as a matter of law by the applicable limitations period. However, to state a claim for fraud, a plaintiff must allege that: (1) the defendants made a material representation that was false; (2) they knew that the representation was false or made it recklessly as a positive assertion without any knowledge of its truth; (3) they intended to induce the plaintiff to act upon the representation; and (4) the plaintiff actually and justifiably relied upon the representation and thereby suffered injury. See Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001).
These elements are entirely absent from Lynch's petition. There is no allegation about what material misrepresentations were made, whether Jack in the Box knew that they were false or made them recklessly, whether Jack in the Box intended to induce Lynch to act on the representations, or whether Lynch actually and justifiably relied upon the representations.
While pleadings are to be construed liberally, liberal construction does not mean that we imply claims that are not alleged. See Toles v. Toles, 113 S.W.3d 899, 911 (Tex. App.--Dallas 2003, no pet.). Although Lynch included the term "fraud" in her petition, her petition cannot reasonably be construed as raising that claim.
We conclude that the only causes of action that can reasonably be construed from Lynch's petition, negligence and product liability under the DTPA, are barred by the two-year statute of limitations. Therefore, we hold that the district court did not abuse its discretion in determining that Lynch's lawsuit had no arguable basis in law and thus in dismissing Lynch's suit as frivolous and malicious.
CONCLUSION
We affirm the judgment of the district court.
___________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: August 9, 2007
1. Lynch attached to her motion a letter from an elder at her church, in which the elder explains that the church is unable to provide her with financial assistance. Lynch apparently attached this letter to her motion as "evidence of hardship."
2. See Tex. Civ. Prac. & Rem. Code Ann. § 14.002 (West 2002). Prior to the enactment of chapter 14 in 1995, chapter 13 applied to lawsuits filed by both inmates and non-inmates. See Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App.--Waco 1996, no writ). Chapter 13 no longer applies to inmate litigation. See Tex. Civ. Prac. & Rem. Code Ann. § 13.004 (West 2002).
Wednesday, August 1, 2007
Professor's age discrimination complaint filed too late
Robert J. Klebe v. University of Texas System, University of Texas Health Science Center at San Antonio, and Brian Herman, No. 03-05-00527-CV (Tex.App.- Austin, Jul. 31, 2007)(Opinion by Chief Justice Law
Appeal from 353rd District Court of Travis County - Affirmed
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. GN403520, HONORABLE PETER M. LOWRY, JUDGE PRESIDING
MEMORANDUM OPINION BY JUSTICE KEN LAW
Robert Klebe brings this interlocutory appeal in his age discrimination suit against the University of Texas System, the University of Texas Health Science Center, and Brian Herman, former Chair of the Department of Cellular and Structural Biology at the Health Science Center. The trial court granted appellees' plea to the jurisdiction and dismissed Klebe's suit. In two issues, Klebe complains that the trial court erred in finding that his complaint was filed too late and in finding that sovereign immunity barred his federal complaint from being brought in state court. We affirm the trial court's judgment.
Background
Klebe was a tenured faculty member in the Department of Cellular and Structural Biology at the University of Texas Health Science Center at San Antonio, a component institution of the University of Texas System. Klebe's immediate supervisor at all relevant times was Brian Herman, Chair of the Department of Cellular and Structural Biology.
Sometime in 1998, Herman notified tenured faculty members who were engaged in research that, under departmental policy, they needed to secure outside funding for part of their salaries. On June 20, 2003, Herman sent Klebe a letter informing Klebe that his salary would be reduced by 25% effective September 1, 2003. The letter included the exact reduction in annual and monthly pay. It also discussed the reason for the reduction as Klebe's failure to raise adequate outside funding and was accompanied by Klebe's faculty evaluations for the past four years. On September 1, 2003, his salary was reduced by 25%.
On January 29, 2004, Klebe filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging age discrimination as the motivating factor for his salary reduction. Klebe listed September 1, 2003, the effective date of the reduction, as the date on which the discriminatory act occurred. This complaint was filed 220 days after Herman's notification letter to Klebe about the pay decision, and 151 days after the reduction went into effect. The EEOC issued a notice of right to sue on August 24, 2004, and Klebe filed his original petition on October 22, 2004.
Klebe's original petition claimed age discrimination under the Texas Labor Code. See Tex. Lab. Code Ann. §§ 21.001-.556 (West 2006). Klebe alleged that the salary reduction was being used to fund salaries for younger faculty because of a budgetary freeze on funds to hire new faculty and that he "had no duty to work as a fundraiser." Appellees filed a plea to the jurisdiction alleging that Klebe's complaint was untimely filed because it was filed over 180 days after Herman had informed Klebe of the decision to reduce his salary. Klebe filed a first and then a second amended petition adding a claim under the federal Age Discrimination in Employment Act (ADEA). See 20 U.S.C.A. §§ 621-634 (West 1999 & Supp. 2007). He argued that the ADEA claim granted him 300 days to file both the state and federal complaints with the EEOC.
Accordingly, he asserts that both claims were timely filed whether the limitations period began when Herman informed him of the reduction on June 20, or when the reduction went into effect on September 1.
On August 2, 2005, the trial court sustained appellees' plea to the jurisdiction and dismissed Klebe's claims under the Texas Labor Code and the ADEA. Klebe timely filed a notice of appeal from the order on August 5, 2005.
Discussion
Standard of review
A challenge to the trial court's subject matter jurisdiction may be asserted in a plea to the jurisdiction. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Orders sustaining a plea to the jurisdiction are reviewed de novo. Sweeny v. Jefferson, 212 S.W.3d 556, 561 (Tex. App.--Austin 2006, no pet.). We do not weigh the merits of the claim but consider only the plaintiff's pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). A plaintiff must allege facts affirmatively demonstrating the trial court's jurisdiction to hear the case. Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). We construe the pleadings liberally in the plaintiff's favor and look to the pleader's intent. Miranda, 133 S.W.3d at 226. We accept all plaintiff's allegations as true and consider only the evidence pertinent to the jurisdictional inquiry. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).
If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Brown, 80 S.W.3d at 555. On the other hand, when a plaintiff fails to plead facts sufficient to establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Id. If a plaintiff has been provided a reasonable opportunity to amend and the amended pleadings still do not allege facts sufficient to invoke jurisdiction, then the trial court should dismiss the plaintiff's action with prejudice. See Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004).
Texas Labor Code complaint
Texas law prohibits age discrimination in employment. Tex. Lab. Code Ann. § 21.051 (West 2006). Aggrieved parties must file a complaint with the Civil Rights Division of the Texas Workforce Commission (1) no later than 180 days after the alleged unlawful employment practice occurred. Id. §§ 21.0015, 21.202. Failure to file a timely complaint with the commission deprives the trial court of subject-matter jurisdiction. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 486 (Tex. 1991) (citing Green v. Aluminum Co. of Am., 760 S.W.2d 378, 380 (Tex. App.--Austin 1988, no writ)). (2) Because one purpose of the Commission on Human Rights Act is to harmonize Texas law with federal laws addressing discrimination, federal case law may be cited as authority. Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996).
Klebe contends that he had 300 days, not 180, to file his labor code complaint because he was also filing a claim under federal law. He argues that filing both complaints with the Equal Employment Opportunity Commission gave him the 300 day timetable for both. (3) Federal and state courts have consistently rejected this contention. See Pope v. MCI Telecomm. Corp., 937 F.2d 258, 264 (5th Cir. 1991) (holding that state law claims are governed by state, not federal, limitations periods); DeMoranville v. Specialty Retailers, Inc., 909 S.W.2d 90, 92 (Tex. App.--Houston [14th Dist.] 1995), rev'd on other grounds, 933 S.W.2d 490 (Tex. 1996) (holding that "[a]lthough the Age Discrimination in Employment Act . . . has extended the time for filing to 300 days, the Texas time period is not affected."). Klebe's labor code claim was governed by the 180 day state law limitation period. Tex. Lab. Code Ann. § 21.202.
The limitation period begins when the employee is informed of the allegedly discriminatory employment decision, not when that decision "comes to fruition." Specialty Retailers, Inc., 933 S.W.2d at 490. Determining when the employer informs the employee is based on an objective standard, focusing on when the employee knew, or reasonably should have known, that the adverse employment decision had been made. Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th Cir. 1988).
The Texas Supreme Court has held a complaint untimely filed when the employee was informed of the adverse employment decision over a year before filing her complaint. Specialty Retailers, 933 S.W.2d 490 (Tex. 1996). In Specialty Retailers, the employee was told she would be fired if her medical leave lasted longer than one year. Id. at 492. After one year of medical leave she was fired and filed her complaint. Id. The Texas Supreme Court held that the unlawful practice was the decision to fire her because of the duration of her disability; actual termination a year later was merely a result of that decision. Id. at 493. Because she was informed of the policy more than 180 days before filing her complaint, it was untimely filed and deprived the trial court of jurisdiction. Id.
In this case, Herman's June 20 letter to Klebe was very specific concerning the adverse employment action. The letter informed Klebe of the percentage reduction and also translated that reduction into dollars and cents. The letter gave a specific implementation date and a specific reason for the reduction. At this point, Klebe knew or should have known that an adverse employment decision had been made. (4)
However, Klebe makes general assertions that there was no authority to reduce his salary and that the Regent's Rules concerning the timing of any changes in employment contracts were not followed. The State asserts that appropriate policies were followed. Although not cited in the briefs, this Court has a recent case discussing the authority to make a decision as that might impact notice. Texas Parks & Wildlife Department v. Dearing involved an adverse job reclassification. 150 S.W.3d 452, 458-59 (Tex. App.--Austin 2004, pet. denied). In Dearing, state law prohibited the employer from reclassifying jobs if reclassification would result in lowered pay. Id. at 458. In anticipation of new legislative authority to make such reclassifications, the employer held group meetings with employees to discuss the employer's plans to reclassify certain positions. Id. About a month later the state legislature granted authority to make such reclassifications, which the employer did. Id.
An employee who alleged that his job was reclassified based on improper age considerations filed a complaint with the Texas Commission on Human Rights less than 180 days after the reclassifications went into effect. Id. The employer claimed the complaint was untimely because the limitations period started when the employee was informed of the possible reclassifications at the group meetings, which were held more than 180 days before the complaint was filed. Id.
This Court disagreed for two reasons. First, this court found that the alleged notice at the meetings was equivocal. Id. at 459. It was a fact question whether the employee should have reasonably known that the decision had been made to reclassify his job at that time. Id. Second, this court found that the employee could not have been "informed" of the decision at the meetings because at that time state law prohibited the employer from making the decision at all. Id. Distinguishing Specialty Retailers, we noted that it "concerned an employer's established company policy and unequivocal communication to the employee that the policy would be enforced as to her." Id. In contrast, Dearing concerned equivocal communication of "an employer's decision to take future action based on new legislation giving it authority for the first time to do so." Id.
Klebe has not brought himself within Dearing's ambit. Klebe asserted, in a general sense, that his employer did not have the authority to change his job conditions, based in part on his contention that his "contract" consisted in party of having a lower pay than the private sector but security in his job conditions. He also claimed that the Regent's Rules were not followed with regard to the timing of the change. However, none of Klebe's claims involve the same kind of legislative prohibition as was at issue in Dearing. Even accepting Klebe's pleadings as true and construing them liberally in his favor, the best they can show is that his employers may not have strictly followed internal procedures. They do not show that his employers were prohibited by state law from reducing his pay the same way state law prohibited the Dearing employer.
As of the June 20, 2003 letter, Klebe knew or reasonably should have known that appellees had decided to reduce his pay. Thus, he was informed of the alleged unlawful employment decision and the limitation period started on that date. Because he filed his complaint on January 29, 2004, over 180 days after the June 20, 2003 letter, his complaint was untimely and deprived the trial court of subject-matter jurisdiction to hear his claim. He had numerous opportunities to amend his pleadings to present facts sufficient to invoke the trial court's jurisdiction and failed to do so. (5) Accordingly, we affirm the trial court's order granting appellees' plea to the jurisdiction and dismissing Klebe's state law claim.
ADEA claim
The Eleventh Amendment bars state court suits for damages against the State for violation of federal law. Alden v. Maine, 527 U.S. 706, 712 (1999). The bar may be lifted by Congressional abrogation or state waiver. Id. at 755-756. The ADEA does not abrogate Eleventh Amendment immunity because the ADEA could not be enacted pursuant to section five of the Fourteenth Amendment. Kimel v. Florida, 528 U.S. 62, 83-84 (2000). A state may waive its Eleventh Amendment immunity if the state voluntarily invokes federal court jurisdiction or makes a "clear declaration" that it intends to submit itself to federal court jurisdiction. Meyers ex rel. Benzig v. Texas, 410 F.3d 236, 241 (5th Cir. 2005). The "clear declaration" to which Meyers refers is some type of statutory declaration of the State's intent to be bound. Sullivan v. University of Tex. Health Science Ctr., 217 Fed. Appx. 391, 2007 U.S. App. LEXIS 3190 (5th Cir. 2007). A "clear declaration" is made only when stated by "the most express language or by such overwhelming implication from the text as will leave no room for any other reasonable construction." Edelman v. Jordan, 415 U.S. 651, 673 (1974).
Therefore, Klebe must show that Texas has waived its sovereign immunity for suits under the ADEA. He offers no legislative pronouncement that expressly authorizes such a suit. Rather, he claims that there is an implied waiver in the Texas Commission on Human Rights Act (the Act) for all age discrimination claims, including the ADEA.
The Act provides a limited waiver of sovereign immunity when a governmental unit has committed employment discrimination on the basis of race, color, disability, religion, sex, national origin, or age. Tex. Lab. Code Ann. § 21.002 (8)(D) (defining "employer" to include political subdivision of state or county, municipality, state agency), § 21.051 (outlining circumstances under which "employer" commits unlawful employment practice); Texas Dep't of Criminal Justice v. Cooke, 149 S.W.3d 700, 704 (Tex. App.--Austin 2004, no pet.). However, the "complainant" who is authorized to bring such a suit, Tex. Lab. Code Ann. § 21.254, is defined as "an individual who brings an action or proceeding under this chapter." Id. § 21.002 (4) (emphasis added). Therefore, the plain language of the act appears to limit its waiver to suits brought under the Texas Act, not the ADEA. Accordingly, Klebe has not shown the kind of "express language" or "overwhelming implication" required to establish a waiver of Eleventh Amendment immunity. We overrule his second issue.
Conclusion
We have found Klebe's state law claim barred by untimely filing of the administrative complaint and his ADEA claim barred by state sovereign immunity. Therefore, we affirm in its entirety the trial court's judgment granting appellee's first amended plea to the jurisdiction and dismissing appellant's claims under the Texas Labor Code and the Age Discrimination in Employment Act.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: July 31, 2007
1. Such complaints were formerly filed with the Texas Commission on Human Rights. See Tex. Lab. Code Ann. § 21.0015 (West 2006) (transferring responsibility to Texas Workforce Commission).
2. In Texas Department of Protective & Regulatory Services v. Lynn, this Court discussed the continued viability of cases holding that the 180 day filing requirement implicated the trial court's subject-matter jurisdiction in light of recent cases expressing reluctance to characterize statutory elements or prerequisites as jurisdictional. No. 03-04-00635-CV, 2005 Tex. App. LEXIS 6682, at *14 (Tex. App.--Austin Aug. 19, 2005, pet. denied) (mem. op.) (discussing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-77 (Tex. 2000), and its progeny). Lynn distinguished the statutory requirements in those cases from the Commission on Human Rights Act's administrative process, which the supreme court has squarely held to be an exhaustion of remedies requirement. Id. (citing Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485-88 (Tex. 1991)). Failure to exhaust administrative remedies remains truly a jurisdictional requirement. Id.
3. Because Texas is a deferral state, if an employee wishes to pursue a federal claim such as the ADEA, the time limit for filing that complaint with the EEOC is 300 days. This allows relevant state agencies to address the allegations first. See Stanley Stores, Inc. v. Chavana, 909 S.W.2d 554, 557 (Tex. App.--Corpus Christi 1995, writ denied). For the purposes of argument, appellees concede that appellant's ADEA claim was timely filed.
4. Klebe's pleadings contended that the very decision to impose a fund raising requirement, which occurred in 1998, was an act of age discrimination in that it was more difficult for older professors to secure grant funding than for younger professors.
5. Klebe had multiple opportunities to do so: he amended his pleadings twice and filed a reply and a post-submission brief in opposition to the plea to the jurisdiction.
Appeal from 353rd District Court of Travis County - Affirmed
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. GN403520, HONORABLE PETER M. LOWRY, JUDGE PRESIDING
MEMORANDUM OPINION BY JUSTICE KEN LAW
Robert Klebe brings this interlocutory appeal in his age discrimination suit against the University of Texas System, the University of Texas Health Science Center, and Brian Herman, former Chair of the Department of Cellular and Structural Biology at the Health Science Center. The trial court granted appellees' plea to the jurisdiction and dismissed Klebe's suit. In two issues, Klebe complains that the trial court erred in finding that his complaint was filed too late and in finding that sovereign immunity barred his federal complaint from being brought in state court. We affirm the trial court's judgment.
Background
Klebe was a tenured faculty member in the Department of Cellular and Structural Biology at the University of Texas Health Science Center at San Antonio, a component institution of the University of Texas System. Klebe's immediate supervisor at all relevant times was Brian Herman, Chair of the Department of Cellular and Structural Biology.
Sometime in 1998, Herman notified tenured faculty members who were engaged in research that, under departmental policy, they needed to secure outside funding for part of their salaries. On June 20, 2003, Herman sent Klebe a letter informing Klebe that his salary would be reduced by 25% effective September 1, 2003. The letter included the exact reduction in annual and monthly pay. It also discussed the reason for the reduction as Klebe's failure to raise adequate outside funding and was accompanied by Klebe's faculty evaluations for the past four years. On September 1, 2003, his salary was reduced by 25%.
On January 29, 2004, Klebe filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging age discrimination as the motivating factor for his salary reduction. Klebe listed September 1, 2003, the effective date of the reduction, as the date on which the discriminatory act occurred. This complaint was filed 220 days after Herman's notification letter to Klebe about the pay decision, and 151 days after the reduction went into effect. The EEOC issued a notice of right to sue on August 24, 2004, and Klebe filed his original petition on October 22, 2004.
Klebe's original petition claimed age discrimination under the Texas Labor Code. See Tex. Lab. Code Ann. §§ 21.001-.556 (West 2006). Klebe alleged that the salary reduction was being used to fund salaries for younger faculty because of a budgetary freeze on funds to hire new faculty and that he "had no duty to work as a fundraiser." Appellees filed a plea to the jurisdiction alleging that Klebe's complaint was untimely filed because it was filed over 180 days after Herman had informed Klebe of the decision to reduce his salary. Klebe filed a first and then a second amended petition adding a claim under the federal Age Discrimination in Employment Act (ADEA). See 20 U.S.C.A. §§ 621-634 (West 1999 & Supp. 2007). He argued that the ADEA claim granted him 300 days to file both the state and federal complaints with the EEOC.
Accordingly, he asserts that both claims were timely filed whether the limitations period began when Herman informed him of the reduction on June 20, or when the reduction went into effect on September 1.
On August 2, 2005, the trial court sustained appellees' plea to the jurisdiction and dismissed Klebe's claims under the Texas Labor Code and the ADEA. Klebe timely filed a notice of appeal from the order on August 5, 2005.
Discussion
Standard of review
A challenge to the trial court's subject matter jurisdiction may be asserted in a plea to the jurisdiction. Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Orders sustaining a plea to the jurisdiction are reviewed de novo. Sweeny v. Jefferson, 212 S.W.3d 556, 561 (Tex. App.--Austin 2006, no pet.). We do not weigh the merits of the claim but consider only the plaintiff's pleadings and the evidence pertinent to the jurisdictional inquiry. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). A plaintiff must allege facts affirmatively demonstrating the trial court's jurisdiction to hear the case. Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). We construe the pleadings liberally in the plaintiff's favor and look to the pleader's intent. Miranda, 133 S.W.3d at 226. We accept all plaintiff's allegations as true and consider only the evidence pertinent to the jurisdictional inquiry. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).
If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Brown, 80 S.W.3d at 555. On the other hand, when a plaintiff fails to plead facts sufficient to establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Id. If a plaintiff has been provided a reasonable opportunity to amend and the amended pleadings still do not allege facts sufficient to invoke jurisdiction, then the trial court should dismiss the plaintiff's action with prejudice. See Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004).
Texas Labor Code complaint
Texas law prohibits age discrimination in employment. Tex. Lab. Code Ann. § 21.051 (West 2006). Aggrieved parties must file a complaint with the Civil Rights Division of the Texas Workforce Commission (1) no later than 180 days after the alleged unlawful employment practice occurred. Id. §§ 21.0015, 21.202. Failure to file a timely complaint with the commission deprives the trial court of subject-matter jurisdiction. Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 486 (Tex. 1991) (citing Green v. Aluminum Co. of Am., 760 S.W.2d 378, 380 (Tex. App.--Austin 1988, no writ)). (2) Because one purpose of the Commission on Human Rights Act is to harmonize Texas law with federal laws addressing discrimination, federal case law may be cited as authority. Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 492 (Tex. 1996).
Klebe contends that he had 300 days, not 180, to file his labor code complaint because he was also filing a claim under federal law. He argues that filing both complaints with the Equal Employment Opportunity Commission gave him the 300 day timetable for both. (3) Federal and state courts have consistently rejected this contention. See Pope v. MCI Telecomm. Corp., 937 F.2d 258, 264 (5th Cir. 1991) (holding that state law claims are governed by state, not federal, limitations periods); DeMoranville v. Specialty Retailers, Inc., 909 S.W.2d 90, 92 (Tex. App.--Houston [14th Dist.] 1995), rev'd on other grounds, 933 S.W.2d 490 (Tex. 1996) (holding that "[a]lthough the Age Discrimination in Employment Act . . . has extended the time for filing to 300 days, the Texas time period is not affected."). Klebe's labor code claim was governed by the 180 day state law limitation period. Tex. Lab. Code Ann. § 21.202.
The limitation period begins when the employee is informed of the allegedly discriminatory employment decision, not when that decision "comes to fruition." Specialty Retailers, Inc., 933 S.W.2d at 490. Determining when the employer informs the employee is based on an objective standard, focusing on when the employee knew, or reasonably should have known, that the adverse employment decision had been made. Clark v. Resistoflex Co., 854 F.2d 762, 765 (5th Cir. 1988).
The Texas Supreme Court has held a complaint untimely filed when the employee was informed of the adverse employment decision over a year before filing her complaint. Specialty Retailers, 933 S.W.2d 490 (Tex. 1996). In Specialty Retailers, the employee was told she would be fired if her medical leave lasted longer than one year. Id. at 492. After one year of medical leave she was fired and filed her complaint. Id. The Texas Supreme Court held that the unlawful practice was the decision to fire her because of the duration of her disability; actual termination a year later was merely a result of that decision. Id. at 493. Because she was informed of the policy more than 180 days before filing her complaint, it was untimely filed and deprived the trial court of jurisdiction. Id.
In this case, Herman's June 20 letter to Klebe was very specific concerning the adverse employment action. The letter informed Klebe of the percentage reduction and also translated that reduction into dollars and cents. The letter gave a specific implementation date and a specific reason for the reduction. At this point, Klebe knew or should have known that an adverse employment decision had been made. (4)
However, Klebe makes general assertions that there was no authority to reduce his salary and that the Regent's Rules concerning the timing of any changes in employment contracts were not followed. The State asserts that appropriate policies were followed. Although not cited in the briefs, this Court has a recent case discussing the authority to make a decision as that might impact notice. Texas Parks & Wildlife Department v. Dearing involved an adverse job reclassification. 150 S.W.3d 452, 458-59 (Tex. App.--Austin 2004, pet. denied). In Dearing, state law prohibited the employer from reclassifying jobs if reclassification would result in lowered pay. Id. at 458. In anticipation of new legislative authority to make such reclassifications, the employer held group meetings with employees to discuss the employer's plans to reclassify certain positions. Id. About a month later the state legislature granted authority to make such reclassifications, which the employer did. Id.
An employee who alleged that his job was reclassified based on improper age considerations filed a complaint with the Texas Commission on Human Rights less than 180 days after the reclassifications went into effect. Id. The employer claimed the complaint was untimely because the limitations period started when the employee was informed of the possible reclassifications at the group meetings, which were held more than 180 days before the complaint was filed. Id.
This Court disagreed for two reasons. First, this court found that the alleged notice at the meetings was equivocal. Id. at 459. It was a fact question whether the employee should have reasonably known that the decision had been made to reclassify his job at that time. Id. Second, this court found that the employee could not have been "informed" of the decision at the meetings because at that time state law prohibited the employer from making the decision at all. Id. Distinguishing Specialty Retailers, we noted that it "concerned an employer's established company policy and unequivocal communication to the employee that the policy would be enforced as to her." Id. In contrast, Dearing concerned equivocal communication of "an employer's decision to take future action based on new legislation giving it authority for the first time to do so." Id.
Klebe has not brought himself within Dearing's ambit. Klebe asserted, in a general sense, that his employer did not have the authority to change his job conditions, based in part on his contention that his "contract" consisted in party of having a lower pay than the private sector but security in his job conditions. He also claimed that the Regent's Rules were not followed with regard to the timing of the change. However, none of Klebe's claims involve the same kind of legislative prohibition as was at issue in Dearing. Even accepting Klebe's pleadings as true and construing them liberally in his favor, the best they can show is that his employers may not have strictly followed internal procedures. They do not show that his employers were prohibited by state law from reducing his pay the same way state law prohibited the Dearing employer.
As of the June 20, 2003 letter, Klebe knew or reasonably should have known that appellees had decided to reduce his pay. Thus, he was informed of the alleged unlawful employment decision and the limitation period started on that date. Because he filed his complaint on January 29, 2004, over 180 days after the June 20, 2003 letter, his complaint was untimely and deprived the trial court of subject-matter jurisdiction to hear his claim. He had numerous opportunities to amend his pleadings to present facts sufficient to invoke the trial court's jurisdiction and failed to do so. (5) Accordingly, we affirm the trial court's order granting appellees' plea to the jurisdiction and dismissing Klebe's state law claim.
ADEA claim
The Eleventh Amendment bars state court suits for damages against the State for violation of federal law. Alden v. Maine, 527 U.S. 706, 712 (1999). The bar may be lifted by Congressional abrogation or state waiver. Id. at 755-756. The ADEA does not abrogate Eleventh Amendment immunity because the ADEA could not be enacted pursuant to section five of the Fourteenth Amendment. Kimel v. Florida, 528 U.S. 62, 83-84 (2000). A state may waive its Eleventh Amendment immunity if the state voluntarily invokes federal court jurisdiction or makes a "clear declaration" that it intends to submit itself to federal court jurisdiction. Meyers ex rel. Benzig v. Texas, 410 F.3d 236, 241 (5th Cir. 2005). The "clear declaration" to which Meyers refers is some type of statutory declaration of the State's intent to be bound. Sullivan v. University of Tex. Health Science Ctr., 217 Fed. Appx. 391, 2007 U.S. App. LEXIS 3190 (5th Cir. 2007). A "clear declaration" is made only when stated by "the most express language or by such overwhelming implication from the text as will leave no room for any other reasonable construction." Edelman v. Jordan, 415 U.S. 651, 673 (1974).
Therefore, Klebe must show that Texas has waived its sovereign immunity for suits under the ADEA. He offers no legislative pronouncement that expressly authorizes such a suit. Rather, he claims that there is an implied waiver in the Texas Commission on Human Rights Act (the Act) for all age discrimination claims, including the ADEA.
The Act provides a limited waiver of sovereign immunity when a governmental unit has committed employment discrimination on the basis of race, color, disability, religion, sex, national origin, or age. Tex. Lab. Code Ann. § 21.002 (8)(D) (defining "employer" to include political subdivision of state or county, municipality, state agency), § 21.051 (outlining circumstances under which "employer" commits unlawful employment practice); Texas Dep't of Criminal Justice v. Cooke, 149 S.W.3d 700, 704 (Tex. App.--Austin 2004, no pet.). However, the "complainant" who is authorized to bring such a suit, Tex. Lab. Code Ann. § 21.254, is defined as "an individual who brings an action or proceeding under this chapter." Id. § 21.002 (4) (emphasis added). Therefore, the plain language of the act appears to limit its waiver to suits brought under the Texas Act, not the ADEA. Accordingly, Klebe has not shown the kind of "express language" or "overwhelming implication" required to establish a waiver of Eleventh Amendment immunity. We overrule his second issue.
Conclusion
We have found Klebe's state law claim barred by untimely filing of the administrative complaint and his ADEA claim barred by state sovereign immunity. Therefore, we affirm in its entirety the trial court's judgment granting appellee's first amended plea to the jurisdiction and dismissing appellant's claims under the Texas Labor Code and the Age Discrimination in Employment Act.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices Pemberton and Waldrop
Affirmed
Filed: July 31, 2007
1. Such complaints were formerly filed with the Texas Commission on Human Rights. See Tex. Lab. Code Ann. § 21.0015 (West 2006) (transferring responsibility to Texas Workforce Commission).
2. In Texas Department of Protective & Regulatory Services v. Lynn, this Court discussed the continued viability of cases holding that the 180 day filing requirement implicated the trial court's subject-matter jurisdiction in light of recent cases expressing reluctance to characterize statutory elements or prerequisites as jurisdictional. No. 03-04-00635-CV, 2005 Tex. App. LEXIS 6682, at *14 (Tex. App.--Austin Aug. 19, 2005, pet. denied) (mem. op.) (discussing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76-77 (Tex. 2000), and its progeny). Lynn distinguished the statutory requirements in those cases from the Commission on Human Rights Act's administrative process, which the supreme court has squarely held to be an exhaustion of remedies requirement. Id. (citing Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485-88 (Tex. 1991)). Failure to exhaust administrative remedies remains truly a jurisdictional requirement. Id.
3. Because Texas is a deferral state, if an employee wishes to pursue a federal claim such as the ADEA, the time limit for filing that complaint with the EEOC is 300 days. This allows relevant state agencies to address the allegations first. See Stanley Stores, Inc. v. Chavana, 909 S.W.2d 554, 557 (Tex. App.--Corpus Christi 1995, writ denied). For the purposes of argument, appellees concede that appellant's ADEA claim was timely filed.
4. Klebe's pleadings contended that the very decision to impose a fund raising requirement, which occurred in 1998, was an act of age discrimination in that it was more difficult for older professors to secure grant funding than for younger professors.
5. Klebe had multiple opportunities to do so: he amended his pleadings twice and filed a reply and a post-submission brief in opposition to the plea to the jurisdiction.
Tuesday, July 10, 2007
Statute of Limitations Defense Was Waived By Failure to Plead It
Winkle v. Vallejo (Tex.App.- Austin, July 10, 2007)(Patterson)(op. on r'hrg)(restricted appeal, default judgment, statute of limitations defense)
AFFIRMED ON REHEARING: Opinion by Justice Patterson
Before Justices Patterson, Pemberton and Waldrop
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 04-1104-C277, HONORABLE KEN ANDERSON, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N BY PATTERSON
Upon consideration of appellant's motion for rehearing, we deny the motion; however, we withdraw our opinion and judgment of June 12, 2007, and substitute the following.
This is a restricted appeal from the trial court's entry of a default judgment in favor of appellees Blanca Vallejo and Juan R. Vallejo. Barry S. Winkle appeals, contending that the lawsuit was barred by the statute of limitations and that the trial court abused its discretion in holding the trial four days earlier than the date on which the trial was noticed. For the reasons that follow, we affirm the judgment.
A restricted appeal is available to a party who did not participate, either in person or through counsel, in a proceeding that resulted in a judgment against the party. Tex. R. App. P. 30. It constitutes a direct attack on a default judgment. Id.; General Elec. Co. v. Falcon Ridge Apartments Joint Venture, 811 S.W.2d 942, 943 (Tex. 1991).
A party filing a restricted appeal must demonstrate that (1) he appealed within six months after the judgment was rendered, (2) he was a party to the suit, (3) he did not participate in the actual trial of the case, and (4) error appears on the face of the record. See Tex. R. App. P. 30; Quaestor Invs., Inc. v. Chiapas, 997 S.W.2d 226, 227 (Tex. 1999). The face of the record includes all papers on file in the appeal, including the clerk's record and any reporter's record. DSC Fin. Corp. v. Moffitt, 815 S.W.2d 551, 551 (Tex. 1991). Otherwise, a restricted appeal affords an appellant the same scope of review as an ordinary appeal. Norman Commc'ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997).
In 1999, the Vallejos offered their home for sale after they fell behind in paying their property taxes. In exchange for the Vallejos placing their home in trust with Bentley Capital LLC, Winkle, a licensed real estate agent, offered to pay their back taxes and mortgage payments, rent the house for two years, and then sell the house. Winkle immediately began renting the home to James and Leah Benton, but convinced them he was selling the home. (1) When the Vallejos attempted to buy another home in 2003, they discovered that the mortgage on their former home was still in their name and that Winkle had ceased to make the mortgage payments as agreed.
The mortgage company eventually foreclosed on their home.
The Vallejos sued Winkle for deceptive trade practices, fraud, and breach of contract. Citation was served on Winkle in state prison on January 20, 2005. By his answer, February 10, 2005, Winkle sought the appointment of an attorney or, in the alternative, a continuance. Trial was scheduled for September 26, 2005. Winkle was served with notice of the trial date on August 2, 2005. A trial was held on September 26, 2005. Winkle did not attend or participate in the trial. The trial court rendered judgment in favor of the Vallejos. This appeal followed.
Winkle first asserts that the four-year statute of limitations for the conveyance of real estate and fraud or the two-year statute of limitations for deceptive trade practices bars the Vallejos' lawsuit because they did not file the lawsuit until November 2004. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004(1), (4) (West 2002) (conveyance of real estate and fraud); Tex. Bus. & Com. Code Ann. § 17.565 (West 2002) (deceptive trade practices). Limitations, however, is an affirmative defense that is waived if not pleaded. G.R.A.V.I.T.Y. Enters. v. Reece Supply Co., 177 S.W.3d 537, 544 (Tex. App.--Dallas 2005, no pet.); see Tex. R. Civ. P. 94 (listing statute of limitations as affirmative defense that party "shall set forth affirmatively"); Frazier v. Havens, 102 S.W.3d 406, 411 (Tex. App.--Houston [14th Dist.] 2003, no pet.) ("A party waives the affirmative defense of statute of limitations if it is not pleaded or tried by consent.").
Here, Winkle did not plead a limitations defense at any point in the proceedings. Accordingly, we conclude that Winkle has waived any limitations defense, and the trial court did not err in entering a default judgment. See Reece Supply Co., 177 S.W.3d at 544 (holding that limitations defense was waived because, once party's pleading was struck, "it had no pleading asserting the affirmative defense of limitations"); Phifer v. Nacogdoches County Cent. Appraisal Dist., 45 S.W.3d 159, 173 (Tex. App.--Tyler 2000, pet. denied) (rejecting appellant's argument that trial court erred in allowing appellee to recover on claim that was barred by statute of limitations, since appellant had failed to plead limitations defense). We overrule Winkle's first issue.
In his second issue, Winkle complains that the trial occurred on September 22, four days earlier than the notice date of September 26, 2005. Winkle contends that the trial court abused its discretion in changing the date of the hearing without informing Winkle. The original judgment was signed on September 26, 2005. The reporter's record reflects that the hearing occurred on September 26; the docket sheet shows that the hearing occurred on September 26.
Any confusion as to the date of the hearing appears to arise from a handwritten entry on the original judgment that a hearing was held on September 22. Winkle appears to attribute this error to deceit on the part of the Vallejos' counsel. This error appears to be a clerical error; there is no showing that any proceeding occurred on September 22 or any date other than the date for which the trial was properly noticed. The record does not reflect that the trial judge abused his discretion. We overrule Winkle's second issue.
Having overruled Winkle's issues on appeal, we affirm the trial court's judgment.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed on Motion for Rehearing
Filed: July 10, 2007
1. The Bentons also sued Winkle. See Winkle v. Benton, No. 03-05-00684-CV, 2006 Tex. App. LEXIS 8450 (Tex. App.--Austin 2006, no pet.) (mem. op.).
AFFIRMED ON REHEARING: Opinion by Justice Patterson
Before Justices Patterson, Pemberton and Waldrop
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 04-1104-C277, HONORABLE KEN ANDERSON, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N BY PATTERSON
Upon consideration of appellant's motion for rehearing, we deny the motion; however, we withdraw our opinion and judgment of June 12, 2007, and substitute the following.
This is a restricted appeal from the trial court's entry of a default judgment in favor of appellees Blanca Vallejo and Juan R. Vallejo. Barry S. Winkle appeals, contending that the lawsuit was barred by the statute of limitations and that the trial court abused its discretion in holding the trial four days earlier than the date on which the trial was noticed. For the reasons that follow, we affirm the judgment.
A restricted appeal is available to a party who did not participate, either in person or through counsel, in a proceeding that resulted in a judgment against the party. Tex. R. App. P. 30. It constitutes a direct attack on a default judgment. Id.; General Elec. Co. v. Falcon Ridge Apartments Joint Venture, 811 S.W.2d 942, 943 (Tex. 1991).
A party filing a restricted appeal must demonstrate that (1) he appealed within six months after the judgment was rendered, (2) he was a party to the suit, (3) he did not participate in the actual trial of the case, and (4) error appears on the face of the record. See Tex. R. App. P. 30; Quaestor Invs., Inc. v. Chiapas, 997 S.W.2d 226, 227 (Tex. 1999). The face of the record includes all papers on file in the appeal, including the clerk's record and any reporter's record. DSC Fin. Corp. v. Moffitt, 815 S.W.2d 551, 551 (Tex. 1991). Otherwise, a restricted appeal affords an appellant the same scope of review as an ordinary appeal. Norman Commc'ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997).
In 1999, the Vallejos offered their home for sale after they fell behind in paying their property taxes. In exchange for the Vallejos placing their home in trust with Bentley Capital LLC, Winkle, a licensed real estate agent, offered to pay their back taxes and mortgage payments, rent the house for two years, and then sell the house. Winkle immediately began renting the home to James and Leah Benton, but convinced them he was selling the home. (1) When the Vallejos attempted to buy another home in 2003, they discovered that the mortgage on their former home was still in their name and that Winkle had ceased to make the mortgage payments as agreed.
The mortgage company eventually foreclosed on their home.
The Vallejos sued Winkle for deceptive trade practices, fraud, and breach of contract. Citation was served on Winkle in state prison on January 20, 2005. By his answer, February 10, 2005, Winkle sought the appointment of an attorney or, in the alternative, a continuance. Trial was scheduled for September 26, 2005. Winkle was served with notice of the trial date on August 2, 2005. A trial was held on September 26, 2005. Winkle did not attend or participate in the trial. The trial court rendered judgment in favor of the Vallejos. This appeal followed.
Winkle first asserts that the four-year statute of limitations for the conveyance of real estate and fraud or the two-year statute of limitations for deceptive trade practices bars the Vallejos' lawsuit because they did not file the lawsuit until November 2004. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004(1), (4) (West 2002) (conveyance of real estate and fraud); Tex. Bus. & Com. Code Ann. § 17.565 (West 2002) (deceptive trade practices). Limitations, however, is an affirmative defense that is waived if not pleaded. G.R.A.V.I.T.Y. Enters. v. Reece Supply Co., 177 S.W.3d 537, 544 (Tex. App.--Dallas 2005, no pet.); see Tex. R. Civ. P. 94 (listing statute of limitations as affirmative defense that party "shall set forth affirmatively"); Frazier v. Havens, 102 S.W.3d 406, 411 (Tex. App.--Houston [14th Dist.] 2003, no pet.) ("A party waives the affirmative defense of statute of limitations if it is not pleaded or tried by consent.").
Here, Winkle did not plead a limitations defense at any point in the proceedings. Accordingly, we conclude that Winkle has waived any limitations defense, and the trial court did not err in entering a default judgment. See Reece Supply Co., 177 S.W.3d at 544 (holding that limitations defense was waived because, once party's pleading was struck, "it had no pleading asserting the affirmative defense of limitations"); Phifer v. Nacogdoches County Cent. Appraisal Dist., 45 S.W.3d 159, 173 (Tex. App.--Tyler 2000, pet. denied) (rejecting appellant's argument that trial court erred in allowing appellee to recover on claim that was barred by statute of limitations, since appellant had failed to plead limitations defense). We overrule Winkle's first issue.
In his second issue, Winkle complains that the trial occurred on September 22, four days earlier than the notice date of September 26, 2005. Winkle contends that the trial court abused its discretion in changing the date of the hearing without informing Winkle. The original judgment was signed on September 26, 2005. The reporter's record reflects that the hearing occurred on September 26; the docket sheet shows that the hearing occurred on September 26.
Any confusion as to the date of the hearing appears to arise from a handwritten entry on the original judgment that a hearing was held on September 22. Winkle appears to attribute this error to deceit on the part of the Vallejos' counsel. This error appears to be a clerical error; there is no showing that any proceeding occurred on September 22 or any date other than the date for which the trial was properly noticed. The record does not reflect that the trial judge abused his discretion. We overrule Winkle's second issue.
Having overruled Winkle's issues on appeal, we affirm the trial court's judgment.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed on Motion for Rehearing
Filed: July 10, 2007
1. The Bentons also sued Winkle. See Winkle v. Benton, No. 03-05-00684-CV, 2006 Tex. App. LEXIS 8450 (Tex. App.--Austin 2006, no pet.) (mem. op.).
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Case cite and link to docket: Winkle v. Vallejo, No. 03-06-00133-CV (Tex.App.- Austin, Jul. 10, 2007)(Patterson)(opinion on motion for rehearing)
Full case style: Barry S. Winkle v. Blanca Vallejo and Juan R. Vallejo
Appeal from 277th District Court of Williamson County
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