Court of Appeals of Texas, Austin.
Linda BALDWIN, Appellant
ZURICH AMERICAN INSURANCE CO., Appellee
Filed: May 10, 2016
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT, NO. D–1–GN–13–001281, HONORABLE GISELA D. TRIANA, JUDGE PRESIDING
Attorneys & Firms
Linda Baldwin, Las Vegas, NV, pro se.
Jessica M. MacCarty, Flahive, Ogden & Latson, Austin, TX, for Appellee
Before Chief Justice Field
Melissa Goodwin, Justice
*1 Linda Baldwin, acting pro se, appeals from the trial court’s order granting Zurich American Insurance Co.’s plea to the jurisdiction and dismissing Baldwin’s claims. Baldwin filed suit appealing the final decision of the Texas Department of Insurance, Division of Workers’ Compensation (DWC) denying her claims for workers’ compensation. Zurich filed a plea to the jurisdiction asserting that Baldwin’s suit was untimely and that the trial court therefore lacked subject matter jurisdiction. For the reasons that follow, we affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
Baldwin was employed as a laundry attendant in a hotel in 2006 and 2007, during which time she asserted claims for two compensable injuries, one on March 1, 2006, and the other on August 20, 2007. DWC heard both claims in a contested case hearing on June 14, 2012. See Tex. Lab.Code §§ 410.151–.169 (providing procedures for contested case hearings for disputed compensation claims not resolved by benefit review conference); see also id. §§ 410.021–.034 (providing procedures for benefit review conferences). The hearing officer found in Zurich’s favor on all issues, and Baldwin filed a request for appeal with the appeals panel. See id. § 410.202 (setting out procedure for requesting appeal with appeals panel). On September 4, 2012, the appeals panel issued notice that the hearing officer’s decision had become final as of that date. On February 21, 2013, Baldwin requested reconsideration of the decision, and on March 22, 2013, DWC notified her that the appeals panel does not have jurisdiction to reconsider a case.
On October 5, 2012, Baldwin filed suit against Zurich alleging “bad faith practices” and “breach of duty of good faith” and seeking economic damages. Zurich filed a no-evidence motion for partial summary judgment, special exceptions, and a plea to the jurisdiction, all of which the trial court granted on January 3, 2013. The trial court dismissed Baldwin’s suit in its entirety and stated in its order that the order was final and appealable. Baldwin did not appeal the order but on April 18, 2013, filed a second suit against Zurich reasserting her bad faith allegations and for the first time seeking judicial review of the appeal panel’s decision. See id. §§ 410.251–.258 (providing for judicial review of final decision of appeals panel). Zurich filed a motion for partial summary judgment as to the bad faith claims on the basis of res judicata. The trial court granted the motion “as to all claims, except for the appeal of Ms. Baldwin’s worker’s compensation claims from the Texas Department of Insurance, Division of Workers Compensation, which remains unaffected by this Order.” Zurich then filed an amended answer and plea to the jurisdiction arguing that Baldwin’s suit for judicial review was untimely and that the trial court therefore lacked subject matter jurisdiction. The trial court granted the plea and issued an order dismissing Baldwin’s claims. Baldwin then filed this appeal challenging the order of dismissal.
STANDARD OF REVIEW AND APPLICABLE LAW
*2 A suit for judicial review of a final decision by the appeals panel must be filed within 45 days after DWC mails the party the decision of the appeals panel. Id. § 410.252(a). The mailing date is considered to be the fifth day after the date the decision was filed with DWC. Id. Zurich filed a plea to the jurisdiction arguing that the trial court lacked jurisdiction because Baldwin had failed to file suit appealing the decision of the appeals panel within the statutorily required time. Whether this filing deadline is mandatory and jurisdictional, however, is unclear. Prior to 2000, Texas appellate courts uniformly interpreted this deadline to be mandatory and jurisdictional. See section 410.252(b)).
Among our sister courts, a split has emerged regarding whether the deadline is a jurisdictional requirement or merely a defensive limitations issue. See Wiley, 2014 Tex.App. LEXIS 531, at *4–7, 2014 WL 173423 (noting varying treatment given issue by appellate courts). The majority view appears to be that the deadline is a jurisdictional issue and, if suit is not timely, the trial court lacks subject matter jurisdiction. See Wiley, 2014 Tex.App. LEXIS 531, at *7, 2014 WL 173423 .
Zurich argues only that Baldwin’s petition was untimely on its face and therefore bases its jurisdictional challenge only on Baldwin’s pleadings. When a plea to the jurisdiction challenges the pleadings, we must determine if the pleader has alleged sufficient facts to affirmatively demonstrate the trial court’s jurisdiction to hear the cause. Miranda, 133 S.W.3d at 227.
*3 The appeals panel issued notice that the hearing officer’s decision and order had become final on September 4, 2012. Under Johnson, 36 S.W.3d at 921.
Baldwin asserts seven issues on appeal, but in none of them does she address the timeliness of her petition for judicial review.2 In her first and fifth issues, Baldwin argues that the trial court erred in granting Zurich’s plea to the jurisdiction and dismissing her claim “by improperly deciding Zurich’s plea to the jurisdiction based on a determination of the merit[s] of Ms. Baldwin’s claim rather than on the narrow issue of subject matter jurisdiction in the district court.”3 However, the merits of Baldwin’s claim concern whether she suffered compensable injuries entitling her to workers’ compensation benefits, matters the trial court did not address. The record reflects that the trial court stated that the issue before it was its jurisdiction based on timeliness of Baldwin’s petition, focused only on that issue, asked for any evidence that would extend the filing deadline, and explained to Baldwin that she could not collaterally attack the dismissal of the first suit in this suit or bootstrap the filing of this case to the filing date of the first petition.4 We overrule Baldwin’s first and fifth issues.
*4 In related arguments, Baldwin contends in her third issue that because the trial court examined the merits of her claim, it should have allowed her the opportunity to conduct discovery and present evidence and in her sixth issue that Zurich’s plea was not the proper method because it was “really a motion to dismiss on the merits.” Because the record reflects that Zurich’s plea challenged only the timeliness of Baldwin’s suit for judicial review and that the trial court did not reach the merits of the case, but instead decided the plea to the jurisdiction based only on the untimeliness of Baldwin’s suit as reflected on the face of the petition, we overrule Baldwin’s third and sixth issues.
Baldwin argues in her second issue that in granting Zurich’s plea to the jurisdiction, the trial court denied her statutory and constitutional rights to access to the courts and deprived her of “an arguable property interest in her disability benefits without due process.” However, her right to judicial review is expressly limited by the statutory deadline that she failed to meet. See Tex. Lab.Code § 410.252(a). Having failed to meet the statutory deadline, Baldwin has acquired no property interest in any disability benefits, and she identifies no other property right of which she has allegedly been denied. We overrule Baldwin’s second issue.
In her fourth issue, Baldwin contends that the trial court erred in granting Zurich’s plea to the jurisdiction and dismissing her claims without providing her an opportunity to amend her pleadings. However, the filing date of her petition affirmatively negates the existence of jurisdiction, and it was proper for the trial court to grant the plea without allowing Baldwin an opportunity to amend. See Miranda, 133 S.W.3d at 227. We overrule Baldwin’s fourth issue.
In her seventh issue, Baldwin asserts that her “appeal to the appeals panel should have been deemed timely because she attempted several times to file an appeal and was prevented from doing so not only through no fault of her own but by error of the [DWC].” However, as noted above, there is no evidence in the record that Baldwin’s appeal to the appeals panel was untimely and counsel for Zurich stated at the hearing on the plea to the jurisdiction that there was no dispute that her appeal to the panel was timely. Further, the issue before us is the timeliness of her suit for judicial review, not the timeliness of her appeal to the appeals panel. We overrule Baldwin’s seventh issue.
Having overruled Baldwin’s issues and having concluded that the trial court did not err in granting Zurich’s plea to the jurisdiction and dismissing Baldwin’s claims, we affirm the trial court’s order of dismissal.
As discussed below, Baldwin does argue that Zurich’s plea was an improper method to challenge her pleadings on the ground that it actually challenges the merits of her claim. However, Baldwin does not contend that Zurich’s plea was an improper vehicle for challenging the timeliness of her petition and, in fact, does not address the timeliness of her petition.
In her reply brief, Baldwin argues for the first time that her first petition complied with the statutory deadline and that she was entitled to equitable tolling of the deadline for her second petition. See Austin Indep. Sch. Dist. v. Lofters, No. 03–14–00071–CV, 2015 Tex.App. LEXIS 3115, at *12–13, 2015 WL 1546083 (Tex.App.–Austin Apr. 1, 2015, pet. denied) (mem.op.) (listing cases).
Further, even if we were to apply the doctrine here, on this record, we would conclude that Baldwin has not met her burden of establishing that she used diligence in filing. See Lofters, 2015 Tex.App. LEXIS 3115, at *13–14, 2015 WL 1546083 (addressing application of equitable tolling doctrine in context of statutory deadline under Texas Commission on Human Rights Act and declining to apply doctrine where plaintiff learned of facts sufficient to allow him to file suit 35 days before deadline but waited 179 more days and offered no explanation for delay).
Baldwin asserts that because the merits of her claim “involve the jurisdiction of the appeals panel to consider her administrative appeal, the trial court may have confused the merits of the question of its own jurisdiction.” She contends that the appeals panel determined that her request for appeal was untimely. However, there is no evidence in the record of any such determination, and counsel for Zurich stated at the hearing on its plea to the jurisdiction that there is no dispute that Baldwin timely filed her appeal to the panel.
In fact, the record shows that it was Baldwin who attempted a detailed discussion of the merits of her claims of compensable injuries.