
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 OPINION (2)

	Derral Noble challenges a summary judgment that he take nothing against
Southwestern Public Service Company (SPS) on his disability discrimination claim under
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
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
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 issue (5) 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. 

	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
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.
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. (6)

	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
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
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


1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
2. Tex. R. App. P. 47.4.
3. 42 U.S.C. § 12101-12213.
4. Former articles 8307c and 5221k are now codified at Tex. Lab. Code Ann. §§ 451.001 and 21.051
(Vernon 1996), respectively.
5. See Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).
6. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.  Tex. Gov't
Code Ann. §75.002(a)(1) (Vernon Supp. 2003). 

