1 Joh n T . Boyd , Ch ief Ju stice (Re t.), Sev enth Co urt of A ppe als, sitting by ass ignm ent. 2 Tex. R. App. P. 47. 4. NO. 07-02-0206-CV

IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E MARCH 28, 2003

______________________________ DERRAL NOBLE, APPELLANT

V. SOUTHWESTERN PUBLIC SERVICE COMPANY , APPELLEE

_________________________________ FROM THE 47TH DISTRIC T COURT O F POTT ER COUNTY; NO. 80,007-A; H ONORABLE DAVI D L. GLEASON, JUDGE

_______________________________ Before QUINN and REAVIS, JJ. an d BOYD, S.J. 1 MEMORA NDUM OPIN ION 2 Derral Noble challenges a summary judgment that he take nothin g ag ainst Southwestern Public Service Company (SP S) on his disabi lity di scriminati on claim under3 42 U.S.C. § 12101-1221 3. 2

the Americans W ith Disabilities Act(ADA). 3 By four is sues, Noble contends the trial court (1) abused itsdiscretion in granti ng SPS’s moti on for severance of the ADA claim; (2) erred in gr anting summary judgment on his ADA claim beca use SPS failed to estab lish as a matter of law that t he ADA claim w as barred by

any applicable statute of li mitations; (3) erred in granting summary judgment that his ADA claim was barr ed by the doct rines of res judicata, collateral estoppel, iss ue preclusion , or electi on; and (4) er red in gr anting summary judgment on hi s ADA clai m. Based upon the r ation ale expresse d her ein, we affirm. Noble does not contend tha t any facts are disputed; thus, only the facts necessary to disposition of

this appeal wi ll be discus sed. Noble, an employee of SPS, s uffered an onthe-job knee injury in April 1991. Fo llowing surgery , he returned towork i n September, but because his kn e e pro blem s per siste d he wa s pla ced o n res trict ed du ty at h is fu ll sal ary. On March 4,1992, Noble fil ed a notice of inj ury w ith the Texas Workforce Commission. W hen SPS learned that N oble’s physician had determined that Noble had reached maximum medical improvement and ha d an impairment rating of te n perc ent, SPS sent Noble home to begin a six month waiting period at reduced pay before he could be eligible for SPS’s long term disabil ity plan. On April 19, 199 3, Noble filed a charge of disc rimination w ith the Equal Employ ment Opportunity

Commission ( EEOC), and then on October 21, 1993, filed his o riginal petition4 Former art icl es 8307c and 5221k ar e now codif ied at Tex. Lab. Code Ann. §§ 451.001 and 21.051 (V er no n 1 99 6) , re sp ec tive ly. 3 i n the trial court alleging claims under former article 8307 c and the Texas W orke rs ’ Compensation Act and also al leging c laims of discrimination under former articl e 5221k

of the Texas Commiss ion on Human Ri ghts Act, 4 but did n ot allege claims under the ADA. Upon jury

trial, the trial court gr

anted SPS’s motion for instructe d verdict on Noble’s 83 07c claim and the Texas di sability discrimination claim. On appeal, we reversed the judg ment as to the 8307c

claim, but because Noble had not exhausted hi s administrat ive remedi es applicable to his disability discrimination claim, we affirmed th e ju dgment that he take nothing on th e Te xas di sabi lity di scrim inat ion c laim . Nob le v. Southwestern Public Service Comp any, No. 07-97-0202-CV (Tex.App.–Amarillo 1998) ( notdesignated for publication) 1998 Tex.App. LEX IS 7997. After our mandate remandi ng the article 8307 c claim to the trial court of August 18, 1999, Noble filed his second amen ded petition on Decemb er 19, 2000, reasserting his section 451.001 claim and, although not r aised by N oble’s exi sting pleadings, he asserted a cla im for disability discrimination under the ADA. In response to Noble’s a mende d pleading raising a claim under the ADA, SPS fil ed special exceptions to the joinder of the ADAcla im with t he section 451.001 claim and req uested a sever ance. Also, i n additi o n to a ge nera l de nial , SPS rai sed a ffirm ativ e defe nsesof lim itations, r es judicata, a nd collateral estoppel. Then, SPS filed its moti on for partial summary judgment as to Noble ’s ADAclaim and for severance. Presenting f our grounds, SPS contended the ADA claim5 See Malooly Brothers, Inc. v. Napier, 461 S.W .2d 119, 121 (Tex. 1970 ). 4 was barred (1)

by limitations under

42 U.S.C. § 12 117(a) and (b) and 42 U .S.C. § 2000e5(f)(1) , or (2) u nder §16.003 and §16.051 of the Texas Civ il Practi ce and Remedies C ode, (3) under the doctrine of ele ction, and (4) by res judicata, co llateral es toppel, and iss ue preclusion. Following a hearing, the trial court granted SPS’s motio n for s ummary judgment

and signed a judgment dismissing the ADA claim with prejudice and severing it into a separate proceeding. The grounds r elied on are not

recited in the judgment. Considering Noble’s i ssues in a l ogical r at her tha n sequential order, we first consi der his fourth issue 5 by whi ch he contends the tr ial court erred in gr anting summary

judgment and his second i ssue by w hich he contends thatSPS failed to establish that his ADA claim was barred by

the stat ute o f lim itat ions as a m atte r of l aw. In our a nalys is, we will ut ilize the standard of rev iew

of a traditional motion for summary judg ment as set out i n Kimber v. Sideris, 8 S.W .3d 672, 674 (Tex.App. --Amarillo 1999, no pet.). Noble contends his A DA claim filed in his December 20, 2000 plea ding was timely under the “relati on-back” doct rine. In support of his argument th at it was timely filed under 42 U.S.C. § 2000e-5, Noble cites Paskuly v. Marshall Field & Co mpany, 646 F. 2d 1210 (7th Cir. 1981) , cert. denied, 454 U.S. 863, 102 S.Ct. 321, 70 L. Ed.2d 162 (1982). Paskuly i s not controlling here because the decision apply ing the “r elation-back”doctrine w as based on Rule 15(c ) of the Federal Rules of Civ il Procedur e, which i s not control ling here.5

Noble also co ntends th at because his d isability discrimin ation action under the Texas Commission on Human Rig hts Act was timely filed, his ADA cl aim is not bar red, but relates back to the firs t filing under section 16.068 of theTexas Civ il Practi ce and Remedies Code. We disagree for two reasons. In our prior opinion, we held that the trial court did not have jurisdict ion of Noble’s d iscrimina tion c laim because he had not exhausted his administ rative r emedies and affirmed the denial of any recovery by Noble. Aclaimant seeking to recover for age discrimination in em ployment must exhaust adm inist rative remedies as a p rerequis ite to filing a civil action under a statute. Schroed er v. Texas Iron Works, Inc., 813 S.W.2d 483, 488 (Tex. 1 991). Noble’ s claim is based entirelyon a st atutory cause of action; the refore, the provisions of the statute are mandatory and exclus ive and must be followed or the action is not maintainable du e to lack of jurisdiction. Green v. Aluminum Company ofAmerica, 760 S.W .2d 378, 380 (Tex.App. -- Austin 1988, no writ). In addition, s ection 16.064 does not operate to “ save” the a pplication of the relation back doctrine becau se it is an ex ception to thegeneral l imitations pr ovision and does not govern proceedings created by

statute to enforce statutor y rig hts. Gutierr

ez v. Lee, 812 S.W.2d 388, 392 (Tex .App.--Austi n 1991, wri t denied). Moreover , the December 23, 1998 judgment of thi s Court severed and remanded to the trial court Noble’s claim under section 451.00 1, but affirme d the judgment that Noble take nothing on hi s disabili ty discrimination acti on. Tex. R. App. P. 43. 2 and 43.6. Therefore, because we severed the discrimin ation cl aim from the section 451.001 claim thatwas remanded, the judgment affirmi ng de nial of the disability discrimination claim6

became final. Accor

dingly , as of December 23, 1998, N oble did not have any “li ve pleadings” asserting a disabilit y discrimination claim pending in the trial court in cause number 80,007-A for purpos es of application of sec tion 16.068. Issues four and two are overrule d. By his first issue, Noble contends the trial cou rt erre d in s evering the disabili ty discriminat ion claim from h i s s e c t i o n 4 5 1

. 0 0 1 c l a i m . We disagree. Under Rule 41 of the Texas Rules of Civ il Procedur e a claim may

be properly

severed if itis part of a suit which involves more than one cause of action. Here, the tr ial court hav ing gra nted SPS’s motion for partial summar

y judgment on the discri mination clai m, severanceof the claims di d not constitute an abuse of

the broad disc retion ves ted in the tri al court. C herokee Water Co. v. Forderhause, 641 S.W.2d 522, 525 (Tex. 1982) . Issue one is overrul ed. Because a summary judgment may be aff irmed on appeal ifany grounds pr

esented are meritorious, and the judgmen t of the tri al court di d not specify or state the g rounds relied on, our dispos ition of issuesone, two, and four pretermits our considerati on of issue three. Accordingl y, the judg ment of the trial court is affirmed. Don H. Reavis Justice Quinn, J., concu rring.****** John T. Boyd , Chi ef Just ice (Ret. ), Seventh Court of Appeals, sitti ng by assignment. Tex. G ov ’t Co de A nn. § 75.0 02(a )(1) (V erno n Su pp. 2 003 ). 7 NO. 07-02-0206-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL E MARCH 28, 2003

______________________________

DERRAL NOBL E, Appellant v. SOUTHW ESTERN PUBLIC SE RVICE COMP ANY, Appellee

_____________________ __________ FROM THE 47 TH DISTRIC T COURT O F POTT ER COUNTY; NO. 80,007-A; HON. DAVID L. GLEASON, PRES IDING

_______________________________

Concurring Opinion

_______________________________ Before QUINN and REAVIS, JJ., an d BOYD, S.J. ****** I concur in t he majority

opinion and add thefollowing

. First, to the extent Derral Noble as serts on appeal that his Ameri can with D isabiliti es Act (ADA)claim relates back to his retaliatio n claim aris ing under §451. 001 of the Texas8

Labor Code (or Noble’s “TW CA” cl aim) , the groun d was n ot ur ged b elow. Rather, and in response to the motion for summary judgment, he argued th at “the ADAand TCHR [Texas Commission on Human Rights] claim both [were ] derived from the same set of facts and occurrences. ” Nothing w as said of its r

elationship to

the claim founded on §451.001 of the Labor Code. Consequentl y, his hav ing failed to assert to thetrial court that the ADA claim related back to the TW CA claim now prevents him from urging that contention o n appeal. See T EX . R. C IV . P. 166a(c) (stating that i ssues not pres ented to the tri al court by writte n motion, answer, or response s hall not be considered on appeal as grounds for reversal). Second, a defendant movi ng for summary judgment on the basis of limitationshas the burden to prove the defense as a matter of law. KPMG Pea t Marwick v . Harrison County Housing Fi

n. Corp. , 988 S.W.2d 746, 748 (Tex. 1999). Once it doe s t hat and to avoid summary judgment, the pl aintiff, in turn, mus t “adduce some . . . proof raisi ng a fact issue in avoidance of the statute of limi tations.” Id. Here, Noble does not dispute that his ADAclaim wa s filed outside thetime periods mandated by appli cable statutes of limitation. Instead, he seeks to av oid applicati on of

those statutes by invoking §16.068 of theTexas Civil Practice and Remedies Code. GAccording to §16.068, “[i ]f a filed pleading r elates to a cause of action . . . that is not subject to a pl ea of

limita tion when th e pleading i s filed, a subsequent amendment

. . . to the pleading that changes the facts

or groundsof liability

. . . is not subject to a plea of lim itation u nless the amendment . . . is w holly base d on a new, dis tinct, or

different transa ction or occurrence.” T EX . C IV . P RAC . & R EM . C ODE A NN . §16.068 (Vernon 1997 ). I n oth er w ords , if t he Pl aint iff

alleges a cause of action w ithin the9

statute of limitations then amends his peti tion to aver one outside li mitations, the new cause will nonetheless be deemed timely unless it is based on a new, dist inct, or di fferent transaction or occurr

ence. Given this, the fact t hat he invokes §16.068 to avoid the defense of li mita tion s, a nd th e tea chi ngsof KPMG Peat Marwick , it wasincumbent upon Noble to pres ent some competent ev idence sufficient toraise a question of fact on each elementof §16.068. This he di d not do. For i nstance, r ather than provide evidence illustrat ing that his ADA claim was no t based on a w holly new or distinc

t transaction , he simplyalleged and concluded in his response to summary j udgment that it arose from the same facts, transactions, or occurrence s w hich gav e rise to hi s other causesof action. Such unsworn conclusory statements contai ned in a respons e to a m otion for summary judgment are notcompetent summary judgment ev idence. Texas Division - Tranter, Inc. v. Carroz za, 876 S.W .2d 3 12, 3 14 (T ex. 1994) (holdi ng that concl usory sta tements are not competent

summary judgment evidence); Elam v. Yale Clini c, 783 S.W .2d 6 38, 6 42 (T ex. App.—Houston [14 th Dist.] 1989, no writ) (holding that unsworn st atements are not competent

summary judg ment evidence) . Nor do they raise materi al issuesof fact. Dubois v. Harris Cou nty, 866 S. W.2d 787, 790 (Tex. App.—Houston [14 th Dist.] 1993, no writ) (holding that fact issuesmust be raised by competent summa ry judgment evidence). Thus, Noble did not s atisfy his burden to present some evidence sufficient to raise a fact i ssue in avo idan ce oflimit atio ns, a s requ ired by KPMG Peat Marwick

.
Brian Quinn Justice10