                                            NO. 07-02-0206-CV

                                     IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                                AT AMARILLO

                                                   PANEL E

                                              MARCH 28, 2003

                                  ______________________________


                                     DERRAL NOBLE, APPELLANT

                                                        V.

                SOUTHWESTERN PUBLIC SERVICE COMPANY, APPELLEE

                              _________________________________

                 FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                  NO. 80,007-A; HONORABLE DAVID L. GLEASON, JUDGE

                                _______________________________


Before QUINN and REAVIS, JJ. and BOYD, S.J.1


                                       MEMORANDUM OPINION2


      Derral Noble challenges a summary judgment that he take nothing against

Southwestern Public Service Company (SPS) on his disability discrimination claim under


      1
          Joh n T . Boyd, Chief Justice (Re t.), Seventh Court of A ppe als, sitting by ass ignm ent.

      2
          Tex. R. App. P. 47.4.
the Americans With Disabilities Act (ADA).3 By four issues, Noble contends the trial court

(1) abused its discretion in granting SPS’s motion for severance of the ADA claim; (2) erred

in granting summary judgment on his ADA claim because SPS failed to establish as a

matter of law that the ADA claim was barred by any applicable statute of limitations; (3)

erred in granting summary judgment that his ADA claim was barred by the doctrines of res

judicata, collateral estoppel, issue preclusion, or election; and (4) erred in granting

summary judgment on his ADA claim. Based upon the rationale expressed herein, we

affirm.


          Noble does not contend that any facts are disputed; thus, only the facts necessary

to disposition of this appeal will be discussed. Noble, an employee of SPS, suffered an on-

the-job knee injury in April 1991. Following surgery, he returned to work in September, but

because his knee problems persisted he was placed on restricted duty at his full salary.

On March 4,1992, Noble filed a notice of injury with the Texas Workforce Commission.

When SPS learned that Noble’s physician had determined that Noble had reached

maximum medical improvement and had an impairment rating of ten percent, SPS sent

Noble home to begin a six month waiting period at reduced pay before he could be eligible

for SPS’s long term disability plan.


          On April 19, 1993, Noble filed a charge of discrimination with the Equal Employment

Opportunity Commission (EEOC), and then on October 21, 1993, filed his original petition


          3
              42 U.S.C. § 12101-12213.

                                               2
in the trial court alleging claims under former article 8307c and the Texas Workers’

Compensation Act and also alleging claims of discrimination under former article 5221k of

the Texas Commission on Human Rights Act,4 but did not allege claims under the ADA.

Upon jury trial, the trial court granted SPS’s motion for instructed verdict on Noble’s 8307c

claim and the Texas disability discrimination claim. On appeal, we reversed the judgment

as to the 8307c claim, but because Noble had not exhausted his administrative remedies

applicable to his disability discrimination claim, we affirmed the judgment that he take

nothing on the Texas disability discrimination claim. Noble v. Southwestern Public Service

Company, No. 07-97-0202-CV (Tex.App.–Amarillo 1998) (not designated for publication)

1998 Tex.App. LEXIS 7997.


       After our mandate remanding the article 8307c claim to the trial court of August 18,

1999, Noble filed his second amended petition on December 19, 2000, reasserting his

section 451.001 claim and, although not raised by Noble’s existing pleadings, he asserted

a claim for disability discrimination under the ADA. In response to Noble’s amended

pleading raising a claim under the ADA, SPS filed special exceptions to the joinder of the

ADA claim with the section 451.001 claim and requested a severance. Also, in addition

to a general denial, SPS raised affirmative defenses of limitations, res judicata, and

collateral estoppel. Then, SPS filed its motion for partial summary judgment as to Noble’s

ADA claim and for severance. Presenting four grounds, SPS contended the ADA claim


       4
        Former articles 8307c and 5221k are now codified at Tex. Lab. Code Ann. §§ 451.001 and 21.051
(Vernon 1996), respectively.

                                                 3
was barred (1) by limitations under 42 U.S.C. § 12117(a) and (b) and 42 U.S.C. § 2000e-

5(f)(1) , or (2) under §16.003 and §16.051 of the Texas Civil Practice and Remedies Code,

(3) under the doctrine of election, and (4) by res judicata, collateral estoppel, and issue

preclusion. Following a hearing, the trial court granted SPS’s motion for summary

judgment and signed a judgment dismissing the ADA claim with prejudice and severing it

into a separate proceeding. The grounds relied on are not recited in the judgment.


       Considering Noble’s issues in a logical rather than sequential order, we first consider

his fourth issue5 by which he contends the trial court erred in granting summary judgment

and his second issue by which he contends that SPS failed to establish that his ADA claim

was barred by the statute of limitations as a matter of law. In our analysis, we will utilize

the standard of review of a traditional motion for summary judgment as set out in Kimber

v. Sideris, 8 S.W.3d 672, 674 (Tex.App.--Amarillo 1999, no pet.).


       Noble contends his ADA claim filed in his December 20, 2000 pleading was timely

under the “relation-back” doctrine. In support of his argument that it was timely filed under

42 U.S.C. § 2000e-5, Noble cites Paskuly v. Marshall Field & Company, 646 F.2d 1210

(7th Cir. 1981), cert. denied, 454 U.S. 863, 102 S.Ct. 321, 70 L.Ed.2d 162 (1982). Paskuly

is not controlling here because the decision applying the “relation-back” doctrine was

based on Rule 15(c) of the Federal Rules of Civil Procedure, which is not controlling here.




       5
           See Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).

                                              4
       Noble also contends that because his disability discrimination action under the

Texas Commission on Human Rights Act was timely filed, his ADA claim is not barred, but

relates back to the first filing under section 16.068 of the Texas Civil Practice and

Remedies Code. We disagree for two reasons. In our prior opinion, we held that the trial

court did not have jurisdiction of Noble’s discrimination claim because he had not

exhausted his administrative remedies and affirmed the denial of any recovery by Noble.

A claimant seeking to recover for age discrimination in employment must exhaust

administrative remedies as a prerequisite to filing a civil action under a statute. Schroeder

v. Texas Iron Works, Inc., 813 S.W.2d 483, 488 (Tex. 1991). Noble’s claim is based

entirely on a statutory cause of action; therefore, the provisions of the statute are

mandatory and exclusive and must be followed or the action is not maintainable due to lack

of jurisdiction. Green v. Aluminum Company of America, 760 S.W.2d 378, 380 (Tex.App.--

Austin 1988, no writ). In addition, section 16.064 does not operate to “save” the application

of the relation back doctrine because it is an exception to the general limitations provision

and does not govern proceedings created by statute to enforce statutory rights. Gutierrez

v. Lee, 812 S.W.2d 388, 392 (Tex.App.--Austin 1991, writ denied).


       Moreover, the December 23, 1998 judgment of this Court severed and remanded

to the trial court Noble’s claim under section 451.001, but affirmed the judgment that Noble

take nothing on his disability discrimination action. Tex. R. App. P. 43.2 and 43.6.

Therefore, because we severed the discrimination claim from the section 451.001 claim

that was remanded, the judgment affirming denial of the disability discrimination claim

                                             5
became final. Accordingly, as of December 23, 1998, Noble did not have any “live

pleadings” asserting a disability discrimination claim pending in the trial court in cause

number 80,007-A for purposes of application of section 16.068. Issues four and two are

overruled.


         By his first issue, Noble contends the trial court erred in severing the disability

discrimination claim from his section 451.001 claim. We disagree. Under Rule 41 of the

Texas Rules of Civil Procedure a claim may be properly severed if it is part of a suit which

involves more than one cause of action. Here, the trial court having granted SPS’s motion

for partial summary judgment on the discrimination claim, severance of the claims did not

constitute an abuse of the broad discretion vested in the trial court. Cherokee Water Co.

v. Forderhause, 641 S.W.2d 522, 525 (Tex. 1982). Issue one is overruled.


         Because a summary judgment may be affirmed on appeal if any grounds presented

are meritorious, and the judgment of the trial court did not specify or state the grounds

relied on, our disposition of issues one, two, and four pretermits our consideration of issue

three.


         Accordingly, the judgment of the trial court is affirmed.


                                            Don H. Reavis
                                              Justice


Quinn, J., concurring.


                                               6
                                         NO. 07-02-0206-CV

                                   IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                            AT AMARILLO

                                                PANEL E

                                      MARCH 28, 2003
                              ______________________________

                                          DERRAL NOBLE,

                                                                          Appellant

                                                    v.

                      SOUTHWESTERN PUBLIC SERVICE COMPANY,

                                                           Appellee
                              _______________________________

                 FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                   NO. 80,007-A; HON. DAVID L. GLEASON, PRESIDING
                           _______________________________

                                     Concurring Opinion
                              _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.******

        I concur in the majority opinion and add the following.

        First, to the extent Derral Noble asserts on appeal that his American with Disabilities

Act (ADA) claim relates back to his retaliation claim arising under §451.001 of the Texas

        ******
             John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t
Co de A nn. §75.0 02(a )(1) (V erno n Su pp. 2003 ).

                                                     7
Labor Code (or Noble’s “TWCA” claim), the ground was not urged below. Rather, and in

response to the motion for summary judgment, he argued that “the ADA and TCHR [Texas

Commission on Human Rights] claim both [were] derived from the same set of facts and

occurrences.” Nothing was said of its relationship to the claim founded on §451.001 of the

Labor Code. Consequently, his having failed to assert to the trial court that the ADA claim

related back to the TWCA claim now prevents him from urging that contention on appeal.

See TEX . R. CIV. P. 166a(c) (stating that issues not presented to the trial court by written

motion, answer, or response shall not be considered on appeal as grounds for reversal).

       Second, a defendant moving for summary judgment on the basis of limitations has

the burden to prove the defense as a matter of law. KPMG Peat Marwick v. Harrison

County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). Once it does that and to

avoid summary judgment, the plaintiff, in turn, must “adduce some . . . proof raising a fact

issue in avoidance of the statute of limitations.” Id. Here, Noble does not dispute that his

ADA claim was filed outside the time periods mandated by applicable statutes of limitation.

Instead, he seeks to avoid application of those statutes by invoking §16.068 of the Texas

Civil Practice and Remedies Code. GAccording to §16.068, “[i]f a filed pleading relates to

a cause of action . . . that is not subject to a plea of limitation when the pleading is filed,

a subsequent amendment . . . to the pleading that changes the facts or grounds of liability

. . . is not subject to a plea of limitation unless the amendment . . . is wholly based on a

new, distinct, or different transaction or occurrence.” TEX . CIV. PRAC . & REM . CODE ANN .

§16.068 (Vernon 1997). In other words, if the Plaintiff alleges a cause of action within the


                                              8
statute of limitations then amends his petition to aver one outside limitations, the new

cause will nonetheless be deemed timely unless it is based on a new, distinct, or different

transaction or occurrence. Given this, the fact that he invokes §16.068 to avoid the

defense of limitations, and the teachings of KPMG Peat Marwick, it was incumbent upon

Noble to present some competent evidence sufficient to raise a question of fact on each

element of §16.068. This he did not do. For instance, rather than provide evidence

illustrating that his ADA claim was not based on a wholly new or distinct transaction, he

simply alleged and concluded in his response to summary judgment that it arose from the

same facts, transactions, or occurrences which gave rise to his other causes of action.

Such unsworn conclusory statements contained in a response to a motion for summary

judgment are not competent summary judgment evidence. Texas Division - Tranter, Inc.

v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (holding that conclusory statements are not

competent summary judgment evidence); Elam v. Yale Clinic, 783 S.W.2d 638, 642 (Tex.

App.—Houston [14th Dist.] 1989, no writ) (holding that unsworn statements are not

competent summary judgment evidence). Nor do they raise material issues of fact. Dubois

v. Harris County, 866 S.W.2d 787, 790 (Tex. App.—Houston [14th Dist.] 1993, no writ)

(holding that fact issues must be raised by competent summary judgment evidence). Thus,

Noble did not satisfy his burden to present some evidence sufficient to raise a fact issue

in avoidance of limitations, as required by KPMG Peat Marwick.



                                                 Brian Quinn
                                                    Justice

                                            9
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