No. 05-16-00903-CV.

WALTER CARTER, JR., Appellant, v. CITY OF GARLAND, Appellee.

Court of Appeals of Texas, Fifth District, Dallas.

Attorney(s) appearing for the Case

Baxter Ward Banowsky , Scott D. Levine , for City of Garland, Appellee.

R. Chris Pittard , for Walter Carter, Jr., Appellant.

Before Justices Francis, Brown, and Schenck.


Opinion by Justice MOLLY FRANCIS.

Walter Carter, Jr. appeals the trial court's take-nothing summary judgment on his race discrimination and retaliation claims against the City of Garland. In two issues, appellant asserts he raised fact issues on the merits of the claims and on the timeliness of his filing and service of the original petition, precluding summary judgment. For reasons set out below, we affirm.

Appellant has been employed by the City as a police officer since 2004. During a four-month period from May to September 2014, he applied for three positions with the City— narcotics officer, field training officer, and detective—but was not selected. Appellant filed a complaint with the Equal Employment Opportunity Commission, alleging race discrimination and retaliation, and requested a "Notice of Right to File Civil Action" from the Texas Workforce Commission Civil Rights Division. On January 21, 2015, appellant received his "right to sue" letter from the TWC, notifying him of his right to sue the City within sixty days of its receipt. Appellant filed suit against the City on March 25, 2015, alleging race discrimination and retaliation in violation of sections 21.051 and 21.055 of the Texas Labor Code.

The City filed an answer generally denying the claims and also asserting several affirmative defenses. The City subsequently filed an amended motion for summary judgment, raising several traditional and no-evidence grounds on both the merits of the claims and the timeliness of the filing and service of the petition. As one of the traditional grounds, the City asserted appellant did not timely file his lawsuit within the sixty-day period set out in section 21.254 of the labor code and attached evidence to support its assertion. The City also asserted appellant had no evidence he timely filed the lawsuit or that he timely served the suit or pursued it with due diligence. Appellant responded with evidence to some of the City's merit-based grounds; he did not, however, respond to the timeliness issue. The trial court granted the City's motion without stating a basis. This appeal ensued.

We review a trial court's ruling on summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Masterson v. Diocese of Nw. Tex., 422 S.W.3d 594, 607 (Tex. 2013); Windle v. Mary Kay, Inc., No. 05-02-00252-CV, 2003 WL 21508782, at *1 (Tex. App.-Dallas July 1, 2003, pet. denied) (mem. op.). When reviewing a traditional summary judgment, we apply well-known standards. See TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). To prevail on summary judgment, the defendant must show there is no genuine issue of material fact concerning one or more essential elements of the plaintiff's cause of action or establish each element of an affirmative defense as a matter of law. Windle, 2003 WL 21508782, at *1. Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, precluding summary judgment. Kyle v. Countrywide Home Loans, Inc., 232 S.W.3d 355, 358 (Tex. App.-Dallas 2007, pet. denied). When, as here, the trial court grants summary judgment without specifying the basis for its ruling, we affirm the judgment if any of the movant's theories are meritorious. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989); Windle, 2003 WL 21508782, at *1.

We begin with the second issue because it is dispositive of this appeal. In his second issue, appellant contends the trial court erred in granting summary judgment on the issue of appellant's failure to file his original petition within sixty days.

Section 21.254 of the labor code provides: "Within 60 days after the date a notice of the right to file a civil action is received, the complainant may bring a civil action against the respondent." TEX. LAB. CODE ANN. § 21.254 (West 2015). Although this provision is not a jurisdictional bar, it provides a sixty-day limitations period to file suit. See Windle, 2003 WL 21508782, at *2. Further, we have interpreted this sixty-day provision to require not just the filing of a lawsuit but service of process as well. Windle, 2003 WL 21508782, at *2. This sixty-day limitations period is in addition to and under certain circumstances, like here, can take precedence over section 21.256's two-year statute of limitations. Id.; Davis v. Educ. Serv. Ctr., 62 S.W.3d 890, 893 n.4 (Tex. App.-Texarkana 2001, no pet.).

The evidence attached to the City's amended motion for summary judgment included (1) deposition testimony that appellant received his "Notice of Right to File Civil Action" from the Texas Workforce Commission Civil Rights Division on January 21, 2015 and (2) appellant's original petition file-stamped March 25, 2015. This evidence established that sixty-three days elapsed between the time appellant received notice of his right to sue and when he filed suit. Consequently, we conclude the City established every element of its limitations defense as a matter of law. See Windle, 2003 WL 21508782, at *2.

Appellant argues he raised a fact issue, asserting he actually filed the petition on March 23, which would have made the petition timely.1 But appellant, in his response to the amended motion, did not present this argument. In fact, as stated previously, he did not respond to this ground at all. With the exception of challenging the legal sufficiency of a summary judgment, a non-movant is required to expressly present in his response those issues he contends avoids the movant's entitlement to summary judgment. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993) (explaining that summary judgment motions and responses or answers to those motions must stand or fall on grounds expressly presented to trial court); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex. 1979) (stating non-movant must "expressly present to the trial court any reasons seeking to avoid movant's entitlement" to summary judgment and may not later assign them as error on appeal); see also TEX. R. CIV. P. 166a(c) ("Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal."). By failing to make this argument in his response to the amended motion for summary judgment, we conclude it is waived.

In addition to waiver, there is another reason to reject appellant's argument. As evidence that he timely filed his lawsuit, appellant directs us to the Declaration Under Penalty of Perjury of Yesenia Ochoa, which was attached to his response to a previous motion for summary judgment filed by the City. The trial court denied that motion but struck Ochoa's declaration.

When a response to a motion for summary judgment explicitly incorporates evidence attached to another summary judgment response in the same file, Texas courts have concluded the trial court should consider the referenced evidence. See Galindo v. Snoddy, 415 S.W.3d 905, 914 (Tex. App.-Texarkana 2013, no pet.) (citing list of cases in support). But here, not only did appellant fail to raise the issue in his response to the amended motion, he did not present any evidence on the issue, incorporate the evidence attached to the previous filing, or ask the trial court to take judicial notice of the prior evidence. Having failed to do so, we cannot conclude the evidence was properly before the court. Moreover, even if we assumed the declaration was properly before the trial court when it considered the City's amended motion for summary judgment and appellant's response, the declaration was previously stricken by the court and appellant has not challenged that ruling on appeal.2 For the reasons set out above, we conclude the trial court did not err in granting summary judgment on appellant's race discrimination and retaliation claims and sustain the second issue.

The City filed a cross-appeal challenging the trial court's ruling on its objections to a portion of appellant's summary judgment evidence related to the merits of the claims. Our disposition of appellant's second issue makes it unnecessary to address appellant's first issue or appellee's cross-appeal. See TEX. R. APP. P. 47.1.

We affirm the trial court's judgment.


In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee City of Garland recover its costs of this appeal from appellant Walter Carter, Jr.


1. The sixtieth day fell on Sunday, March 22, 2015; consequently, appellant's petition had to be filed by March 23, 2015. See TEX. R. CIV. P. 4.
2. We note that different judges considered and ruled on the amended motion for summary judgment that is before us in this appeal and the earlier motion for summary judgment on limitations.


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