RAYMOND YARBROUGH v. AMERICAN CONTRACTORS INSURANCE GROUP (2011)

MEMORANDUM OPINION

Opinion By Justice O'Neill

Appellant Raymond Yarbrough appeals an order dismissing his claims against American Contractors Insurance Group (ACIG) for want of jurisdiction.   In two issues, Yarbrough asserts the trial court erred in granting ACIG's plea to the jurisdiction and dismissing his suit.   For the following reasons, we affirm the trial court's order.

The issue presented in this appeal is whether Yarbrough's suit seeking judicial review of a final decision of the Texas Department of Insurance, Division of Workers' Compensation following a contested case hearing was timely filed.  Section 410.052(a) of the Labor Code requires a party seeking judicial review to file suit no later than the forty fifth day after the date on which the division mailed the party the decision of the appeals panel.   Tex. Lab.Code Ann. § 410.252(a) (West Supp.2010).   Moreover, the proper defendant must be sued within the forty-five day deadline.  Johnson v. UPS, 36 S.W.3d 918, 921 (Tex.App.—Dallas 2001, pet. denied);  State Office of Risk Mgmnt v. Herrera, 288 S.W.3d 543, 549 (Tex.App.—Amarillo 2009, no pet.).   The forty-five day filing requirement is not a traditional statute of limitations, but a mandatory jurisdictional requirement.  Johnson, 36 S.W.3d at 921.

Here, Yarbrough filed suit against “ACIG/Novapro Risk Solutions” within the forty-five day deadline and served Novapro's registered agent.  “ACIG/Novapro Risk Solutions” is a nonexistant legal entity.   Novapro is ACIG's third-party administrator of workers' compensation benefits and is not a proper defendant.   See Four Bluff Indep.   Sch. Dist. v. Bass, 133 S.W.3d 272, 273 (Tex.2004).

After limitations expired, Yarbrough amended his petition effectively nonsuiting ACIG/Novapro Risk Solutions and naming ACIG as the defendant and requesting service on its registered agent.   ACIG filed an answer and plea to the jurisdiction asserting the suit was untimely under section 410.252(a).   Tex. Lab.Code Ann. § 410.252(a) (West Supp.2010);  Johnson, 36 S.W.3d at 920.   Yarbrough did not file a response to the plea to the jurisdiction.   Following a hearing on the plea, the trial court dismissed the suit.

Whether a court has subject-matter jurisdiction is a question of law reviewed de novo.  Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004);  City of Weston v. Gaudette, 287 S.W.3d 832, 835 (Tex.App.—Dallas 2009, no pet.).   The claimant has the burden to allege facts affirmatively demonstrating the trial court's jurisdiction.  Id. When reviewing a plea to the jurisdiction, we consider the facts alleged in the petition and, to the extent relevant to the jurisdictional issue, any evidence submitted by the parties to the trial court.  Blue, 34 S.W.3d at 555.   If a plaintiff pleads facts that affirmatively demonstrate an absence of jurisdiction and the defect is incurable, then the cause is properly dismissed.  Peek, 779 S.W.2d at 804–05.

Here, the plea to the jurisdiction was directed at Yarbrough's pleadings.   These pleadings, on their face, show the suit against ACIG was untimely.   Specifically, Yarbrough did not sue the correct entity within the forty-five day deadline.   On appeal, Yarbrough asserts only that the limitations period should have been tolled under some theory of misidentification/misnomer and/or use of an assumed name.   However, Yarbrough did not plead any tolling doctrines or provisions.   Nor did Yarbrough file a response to ACIG's plea to the jurisdiction.   Further, although there was a hearing on the plea to the jurisdiction, it appears that the hearing was not evidentiary and no reporter's record was requested or filed.   The trial court makes its determination of jurisdiction based upon what is presented in the pleading and at the hearing.   Roskey v. Continental Cas. Co., 190 S.W.3d 875, 879 (Tex.App.—Dallas 2006, pet. denied).   We conclude the tolling issue was not before the trial court.   Because Yarbrough filed suit against ACIG outside the jurisdictional limitations period, we conclude the trial court properly dismissed his suit.   We affirm the trial court's judgment.

100562F.P05

MICHAEL J. O'NEILL JUSTICE