Gutierrez v B&B Landfill, NO. 10-12-00219-CV, (Tex. Civ. App. – Waco, April 4, 2013).
This is an employment discrimination lawsuit where the Tenth District Court of Appeals held the Plaintiff failed to timely file his petition after receiving his right-to-sue letter. The Plaintiff drove a truck for B&B Landfill until his termination. He filed a charge of discrimination but ultimately requested a right-to-sue letter from the TWC. He received his letter on October 4, 2011 and had sixty (60) days to file suit (making it December 5, 2011). Plaintiff put his petition in the USPS mail on December 5th but failed to affix proper postage. On December 9th, after return of the original envelope, Plaintiff mailed the petition with the proper postage amount. The trial court granted summary judgment for B&B holding the Plaintiff failed to timely file suit.
On appeal the court held that 1) due to the Texas Supreme Court’s holding in Morris v Aguilar, 369 S.W.3d 168, 171 (Tex. 2012), the “mailbox rule” dictated by Texas Rule of Civil Procedure 5 only applies to deadlines under the civil rules and 2) even if Rule 5 applied to such statutory deadlines, the mistaken belief a party affixed the correct postage is not “good cause” to trigger its application. As a result, the trial court properly granted B&B’s summary judgment motion.
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