                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-09-00322-CV


JOHN RELIFORD                                                        APPELLANT

                                         V.

BNSF RAILWAY COMPANY                                                   APPELLEE


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          FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1
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                                   I. Introduction

      Appellant John Reliford appeals the judgment against him and in favor of

Appellee Burlington Northern and Santa Fe Railway Company (BNSF). Reliford

contends in one issue that the trial court committed reversible error by submitting

an improper jury instruction, by omitting a separate jury instruction, and by


      1
       See Tex. R. App. P. 47.4.
submitting the first two jury questions in reverse order. Because Reliford has not

challenged each independent ground supporting the trial court’s judgment, we

will affirm.

                                  II. Background

       On November 26, 2003, Reliford filed suit pursuant to the Federal

Employers’ Liability Act (FELA)2 against BNSF, seeking damages and

contending that his exposure to toxins at a BNSF plant caused his prostate

cancer. The case proceeded to trial in early August 2009, and the jury rendered

a verdict for BNSF. In rendering its verdict, the jury found that Reliford formed a

belief that his prostate cancer was caused by exposure to substances at the

BNSF plant by March 4, 1999, and that Reliford’s prostate cancer was not

proximately caused by exposure to arsenic at the BNSF plant. The trial court

signed the final judgment on August 24, 2009, and this appeal followed.

                                   III. Discussion

       ―It is axiomatic that an appellate court cannot reverse a trial court’s judgment

absent properly assigned error.‖ Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447,

450 (Tex. 1998). When the trial court’s judgment rests upon more than one

independent ground or defense, the aggrieved party must assign error to each

ground or the judgment will be affirmed on the ground to which no complaint is




       2
        See 45 U.S.C.A. § 51 (2007).


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made. Scott v. Galusha, 890 S.W.2d 945, 948 (Tex. App.—Fort Worth 1994, writ

denied).

      Section 56 of FELA states, ―No action shall be maintained under this

chapter unless commenced within three years from the day the cause of action

accrued.‖ 45 U.S.C.A. § 56 (2007). A cause of action under FELA accrues for

limitations purposes when a claimant discovers both his injury and its underlying

cause. United States v. Kubrick, 444 U.S. 111, 121–23, 100 S. Ct. 352, 359–60

(1979); Billman v. Mo. Pac. R.R. Co., 825 S.W.2d 525, 527 (Tex. App.—Fort

Worth 1992, writ denied). ―[I]t is not necessary the claimant know the defendant

is blameworthy.‖ Billman, 825 S.W.2d at 527 (citing Kubrick, 444 U.S. at 121–23,

100 S. Ct. at 359–60).

      Here, the jury found that Reliford formed a belief that his prostate cancer

was caused by exposure to substances at the BNSF plant by March 4, 1999, but

Reliford did not file this lawsuit until November 26, 2003, more than three years

after his cause of action accrued. Therefore, because this independent ground—

statute of limitations—supports the trial court’s judgment and has not been

challenged on appeal, we affirm the trial court’s judgment. See Hong Kong Dev.

Co. v. Nguyen, 229 S.W.3d 415, 456 (Tex. App.—Houston [1st Dist.] 2007, no

pet.) (overruling issue challenging lack of evidence of waiver or estoppel because

the appellant did not challenge the evidence supporting duress, even though the

jury found that failure to obtain consent to assign a contract was excused by

waiver, estoppel, and duress).

                                    3
                                  IV. Conclusion

      Having held that Reliford has not challenged each independent ground

supporting the trial court’s judgment, we affirm the trial court’s judgment.




                                                    BILL MEIER
                                                    JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DELIVERED: January 27, 2011




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