AFFIRMED and Opinion Filed September 27, 2022
In the Court of Appeals Fifth District of Texas at Dallas No. 05-21-00900-CV
LAWANDA PEARSON, Appellant V. DUNCANVILLE SENIOR CARE, LLC, ET AL., Appellees
On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-16962
MEMORANDUM OPINION Before Justices Myers, Carlyle, and Goldstein Opinion by Justice Carlyle Lawanda Pearson appeals from a summary judgment entered in favor of
Tascosa Management, LLC and Goodlife Senior Living Management Company,
LLC (collectively, the Goodlife Parties).1 We affirm in this memorandum opinion.
See TEX. R. APP. P. 47.4.
Ms. Pearson worked as a caregiver at GoodLife Assisted Living and Memory
Care in Duncanville (GLD). At the time, Tascosa employed Ms. Pearson and
1 Ms. Pearson abandoned her appeal of the summary judgment as to Duncanville Senior Care, LLC. operated GLD, although Goodlife Senior Living later acquired Tascosa’s assets and
took over GLD’s operations.
Tascosa terminated Ms. Pearson’s employment on October 18, 2017.2
According to Ms. Pearson, Tascosa terminated her for reporting unlawful narcotics
diversion and record-keeping practices at GLD. The Goodlife Parties insist,
however, that Tascosa fired her for violating patient-privacy provisions in the federal
Health Insurance Portability and Accountability Act (HIPAA).
In any event, Ms. Pearson waited until October 17, 2019—exactly two years
after her termination—to file this lawsuit against the Goodlife Parties. In her petition,
she alleged the Goodlife Parties conspired to discharge her in violation of sections
247.068(a) and 260A.014(b) of the Texas Health and Safety Code. The clerk issued
citations for the Goodlife Parties a week later, with each citation providing for
service on the same registered agent:
REGISTERED AGENT CLIFF BOYD 402 WEST WHEATLAND ROAD DUNCANVILLE TX 751163
2 There is conflicting evidence concerning the date of Ms. Pearson’s termination. For purposes of the summary judgment at issue, we credit Ms. Pearson’s allegation that her termination occurred on October 18, 2017. 3 The record on appeal suggests the address provided in the citations does not match exactly the registered agent’s address on file with the Secretary of State: 402 Wheatland, Suite 170-B, Duncanville, TX, USA 75237.
–2– Ms. Pearson did not, however, serve those citations on Mr. Boyd. After two
unsuccessful attempts to serve him, she instead served the citations on her former
supervisor, Jannalee Freeman, whom the service returns identified as “Regional
Manager.” After the Goodlife Parties failed to answer, Ms. Pearson obtained a
default judgment in January 2020.
Soon after, the Goodlife Parties appeared and filed a motion to set aside the
default judgment, which the trial court granted. They later moved for summary
judgment, arguing: (1) the evidence refutes Ms. Pearson’s claims; and (2) Ms.
Pearson’s claims are barred by limitations. The trial court granted their motion
without specifying grounds and entered summary judgment in their favor. Ms.
Pearson timely appealed.
We review a summary judgment de novo. Trial v. Dragon, 593 S.W.3d 313,
316 (Tex. 2019). Summary judgment is proper if there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law. TEX. R. CIV.
P. 166a(c). When the trial court’s order does not specify the grounds for granting
summary judgment, we will affirm if any theory presented to the trial court and
preserved for our review is meritorious. Provident Life & Accident Co. v. Knott, 128
S.W.3d 211, 216 (Tex. 2003).
We begin with the Goodlife Parties’ assertion that Ms. Pearson’s claims are
barred by limitations. A timely filed lawsuit will not prevent limitations from
–3– running if the plaintiff does not exercise diligence in procuring service on the
defendant. Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009). If the defendant
affirmatively pleads limitations and shows service did not occur within the
limitations period, the burden shifts to the plaintiff to prove it acted diligently in
procuring service. Id.
To satisfy this burden, the plaintiff must show it “acted as an ordinarily
prudent person would have acted under the same or similar circumstances and was
diligent up until the time the defendant was served.” Id. This ordinarily presents a
fact question, “determined by examining the time it took to secure citation, service,
or both, and the type of effort or lack of effort the plaintiff expended in procuring
service.” Taylor v. Hill, No. 05-15-00385-CV, 2016 WL 825722, at *2 (Tex. App.—
Dallas March 3, 2016, no pet.) (mem. op.) (quoting Proulx v. Wells, 235 S.W.3d
213, 216 (Tex. 2007) (per curiam)). The plaintiff’s evidence must show its efforts to
serve the defendant and explain every lapse in effort or period of delay. Id. If the
plaintiff’s explanation fails to raise a fact question as to its diligence, then the
defendant has no burden to show the plaintiff failed to act diligently. Id. If, however,
“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.” Id.
–4– Here, the parties agree the longest possible limitations period for Ms.
Pearson’s claims was two years from her termination. See TEX. HEALTH & SAFETY
CODE § 260A.014(h); Agar Corp., Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d
136, 142 (Tex. 2019) (noting that a derivative conspiracy claim is subject to the same
limitations period as the underlying tort). Ms. Pearson also appropriately concedes
that, because the Goodlife Parties affirmatively pleaded limitations and
demonstrated she did not serve them within the limitations period, the burden shifted
to her to show she acted diligently in procuring service. See Taylor, 2016 WL
825722, at *2.
A limited liability company (LLC) is not a person capable of accepting process
on its own behalf and must be served through an agent. Cf. Prado v. Nichols, No.
05-20-01092-CV, 2022 WL 574845, at *2 (Tex. App.—Dallas Feb. 25, 2022, no pet.)
(mem. op.). Agents authorized by statute to accept service on behalf of an LLC
include its registered agent and, depending on whether the LLC is manager- or
member-managed, any manager or member of the LLC. See TEX. BUS. ORGS. CODE
§§ 5.201(b), 5.255(3). A proper service return must show both the name of the person
who accepted service on behalf of the LLC and that the person was authorized to do
so. Cf. Prado, 2022 WL 574845, at *2.
After two failed attempts to serve the Goodlife Parties’ registered agent before
9:00 a.m. on consecutive days, Ms. Pearson chose to serve her former supervisor,
–5– Ms. Freeman. The service returns reflect that Ms. Freeman was the Goodlife Parties’
“Regional Manager,” although Ms. Freeman’s affidavit states she was the Goodlife
Parties’ “Regional Operations Officer.” The distinction is of no note in this appeal.
Ms. Pearson provided no evidence suggesting either that the Goodlife Parties
authorized Ms. Freeman to accept service on their behalf or that Ms. Freeman was a
member or manager of the LLCs as those terms are used in the business
organizations code.
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AFFIRMED and Opinion Filed September 27, 2022
In the Court of Appeals Fifth District of Texas at Dallas No. 05-21-00900-CV
LAWANDA PEARSON, Appellant V. DUNCANVILLE SENIOR CARE, LLC, ET AL., Appellees
On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-16962
MEMORANDUM OPINION Before Justices Myers, Carlyle, and Goldstein Opinion by Justice Carlyle Lawanda Pearson appeals from a summary judgment entered in favor of
Tascosa Management, LLC and Goodlife Senior Living Management Company,
LLC (collectively, the Goodlife Parties).1 We affirm in this memorandum opinion.
See TEX. R. APP. P. 47.4.
Ms. Pearson worked as a caregiver at GoodLife Assisted Living and Memory
Care in Duncanville (GLD). At the time, Tascosa employed Ms. Pearson and
1 Ms. Pearson abandoned her appeal of the summary judgment as to Duncanville Senior Care, LLC. operated GLD, although Goodlife Senior Living later acquired Tascosa’s assets and
took over GLD’s operations.
Tascosa terminated Ms. Pearson’s employment on October 18, 2017.2
According to Ms. Pearson, Tascosa terminated her for reporting unlawful narcotics
diversion and record-keeping practices at GLD. The Goodlife Parties insist,
however, that Tascosa fired her for violating patient-privacy provisions in the federal
Health Insurance Portability and Accountability Act (HIPAA).
In any event, Ms. Pearson waited until October 17, 2019—exactly two years
after her termination—to file this lawsuit against the Goodlife Parties. In her petition,
she alleged the Goodlife Parties conspired to discharge her in violation of sections
247.068(a) and 260A.014(b) of the Texas Health and Safety Code. The clerk issued
citations for the Goodlife Parties a week later, with each citation providing for
service on the same registered agent:
REGISTERED AGENT CLIFF BOYD 402 WEST WHEATLAND ROAD DUNCANVILLE TX 751163
2 There is conflicting evidence concerning the date of Ms. Pearson’s termination. For purposes of the summary judgment at issue, we credit Ms. Pearson’s allegation that her termination occurred on October 18, 2017. 3 The record on appeal suggests the address provided in the citations does not match exactly the registered agent’s address on file with the Secretary of State: 402 Wheatland, Suite 170-B, Duncanville, TX, USA 75237.
–2– Ms. Pearson did not, however, serve those citations on Mr. Boyd. After two
unsuccessful attempts to serve him, she instead served the citations on her former
supervisor, Jannalee Freeman, whom the service returns identified as “Regional
Manager.” After the Goodlife Parties failed to answer, Ms. Pearson obtained a
default judgment in January 2020.
Soon after, the Goodlife Parties appeared and filed a motion to set aside the
default judgment, which the trial court granted. They later moved for summary
judgment, arguing: (1) the evidence refutes Ms. Pearson’s claims; and (2) Ms.
Pearson’s claims are barred by limitations. The trial court granted their motion
without specifying grounds and entered summary judgment in their favor. Ms.
Pearson timely appealed.
We review a summary judgment de novo. Trial v. Dragon, 593 S.W.3d 313,
316 (Tex. 2019). Summary judgment is proper if there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law. TEX. R. CIV.
P. 166a(c). When the trial court’s order does not specify the grounds for granting
summary judgment, we will affirm if any theory presented to the trial court and
preserved for our review is meritorious. Provident Life & Accident Co. v. Knott, 128
S.W.3d 211, 216 (Tex. 2003).
We begin with the Goodlife Parties’ assertion that Ms. Pearson’s claims are
barred by limitations. A timely filed lawsuit will not prevent limitations from
–3– running if the plaintiff does not exercise diligence in procuring service on the
defendant. Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009). If the defendant
affirmatively pleads limitations and shows service did not occur within the
limitations period, the burden shifts to the plaintiff to prove it acted diligently in
procuring service. Id.
To satisfy this burden, the plaintiff must show it “acted as an ordinarily
prudent person would have acted under the same or similar circumstances and was
diligent up until the time the defendant was served.” Id. This ordinarily presents a
fact question, “determined by examining the time it took to secure citation, service,
or both, and the type of effort or lack of effort the plaintiff expended in procuring
service.” Taylor v. Hill, No. 05-15-00385-CV, 2016 WL 825722, at *2 (Tex. App.—
Dallas March 3, 2016, no pet.) (mem. op.) (quoting Proulx v. Wells, 235 S.W.3d
213, 216 (Tex. 2007) (per curiam)). The plaintiff’s evidence must show its efforts to
serve the defendant and explain every lapse in effort or period of delay. Id. If the
plaintiff’s explanation fails to raise a fact question as to its diligence, then the
defendant has no burden to show the plaintiff failed to act diligently. Id. If, however,
“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.” Id.
–4– Here, the parties agree the longest possible limitations period for Ms.
Pearson’s claims was two years from her termination. See TEX. HEALTH & SAFETY
CODE § 260A.014(h); Agar Corp., Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d
136, 142 (Tex. 2019) (noting that a derivative conspiracy claim is subject to the same
limitations period as the underlying tort). Ms. Pearson also appropriately concedes
that, because the Goodlife Parties affirmatively pleaded limitations and
demonstrated she did not serve them within the limitations period, the burden shifted
to her to show she acted diligently in procuring service. See Taylor, 2016 WL
825722, at *2.
A limited liability company (LLC) is not a person capable of accepting process
on its own behalf and must be served through an agent. Cf. Prado v. Nichols, No.
05-20-01092-CV, 2022 WL 574845, at *2 (Tex. App.—Dallas Feb. 25, 2022, no pet.)
(mem. op.). Agents authorized by statute to accept service on behalf of an LLC
include its registered agent and, depending on whether the LLC is manager- or
member-managed, any manager or member of the LLC. See TEX. BUS. ORGS. CODE
§§ 5.201(b), 5.255(3). A proper service return must show both the name of the person
who accepted service on behalf of the LLC and that the person was authorized to do
so. Cf. Prado, 2022 WL 574845, at *2.
After two failed attempts to serve the Goodlife Parties’ registered agent before
9:00 a.m. on consecutive days, Ms. Pearson chose to serve her former supervisor,
–5– Ms. Freeman. The service returns reflect that Ms. Freeman was the Goodlife Parties’
“Regional Manager,” although Ms. Freeman’s affidavit states she was the Goodlife
Parties’ “Regional Operations Officer.” The distinction is of no note in this appeal.
Ms. Pearson provided no evidence suggesting either that the Goodlife Parties
authorized Ms. Freeman to accept service on their behalf or that Ms. Freeman was a
member or manager of the LLCs as those terms are used in the business
organizations code.
In her response to the summary-judgment motion, Ms. Pearson merely
provided the following statement concerning her efforts to serve the Goodlife
Parties:
In terms of service the defendants’ game play was the cause of any delay, which Plaintiff contends was insignificant delay in any event. If the defendants’ registered agent for service of process in fact maintained a physical presence at the office identified as the registered address, then it was unmarked. Declaration of Pearson. Nonetheless, process was served on [the Goodlife Parties] in less than two weeks.
In the declaration attached to her response, Ms. Pearson stated: “I visited the office
building where the defendants claimed was their registered address. If their
registered agent in fact maintained a physical presence at the office, then it was
unmarked as no such office number existed at the address.”
Ms. Pearson has not addressed, either in the trial court or on appeal, the
Goodlife Parties’ arguments that the November 2019 service on Ms. Freeman was
defective. Instead, Ms. Pearson contends for the first time on appeal that, although
–6– service was “arguably defective,” any defect in service is irrelevant to the issue of
whether she acted diligently in seeking to procure that service. Thus, she argues, she
had “no responsibility to cure alleged service defects, no obligation to explain how
defective service demonstrated diligence, and no duty to explain the alleged failure
to properly serve” the Goodlife Parties. We disagree.
As Ms. Pearson acknowledges, she had the burden of demonstrating her
diligence in serving the Goodlife Parties after limitations expired. Although we agree
that a defect in service does not necessarily reflect a lack of diligence by the plaintiff,
Ms. Pearson nevertheless failed to explain how her efforts were reasonably
calculated to lead to valid service on the Goodlife Parties.
Ms. Pearson’s only explanation for failing to properly serve the Goodlife
Parties through an authorized agent is that she could not find their registered agent
at their registered address. But the law provides a clear and simple path for obtaining
valid service in those circumstances. Under the business organizations code, if an
entity “does not maintain a registered agent,” or if “the registered agent of the entity
cannot with reasonable diligence be found at the registered office of the entity,” then
the secretary of state will act as an agent “for purposes of service of process.” See
TEX. BUS. ORGS. CODE § 5.251(1). An ordinarily prudent person under these
circumstances would serve the Goodlife Parties through the secretary of state.
–7– Instead, Ms. Pearson chose to serve her former supervisor, Ms. Freeman,
without providing any evidence suggesting a reasonable basis for believing Ms.
Freeman had authority to accept service on the Goodlife Parties’ behalf. And having
served Ms. Freeman, Ms. Pearson made no other efforts to serve the Goodlife Parties
in the months before their voluntary appearance. On this record, because she did not
identify a reasonable basis for believing service upon Ms. Freeman was sufficient,
we conclude Ms. Pearson’s explanation failed to raise a genuine fact issue as to her
diligence in procuring service on the Goodlife Parties after limitations expired. The
trial court thus did not err by granting summary judgment on limitations grounds,
and we need not reach the merits of the parties’ remaining arguments.
We affirm the trial court’s judgment.
/Cory L. Carlyle/ CORY L. CARLYLE 210900f.p05 JUSTICE
–8– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
LAWANDA PEARSON, Appellant On Appeal from the 162nd Judicial District Court, Dallas County, Texas No. 05-21-00900-CV V. Trial Court Cause No. DC-19-16962. Opinion delivered by Justice Carlyle. DUNCANVILLE SENIOR CARE, Justices Myers and Goldstein LLC, ET AL., Appellees participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellees DUNCANVILLE SENIOR CARE, LLC, TASCOSA MANAGEMENT, LLC, and GOODLIFE SENIOR LIVING MANAGEMENT COMPANY, LLC recover their costs of this appeal from appellant LAWANDA PEARSON.
Judgment entered this 27th day of September, 2022.
–9–