Court of Appeals of Texas, Dallas.

Lael Kelty COLLOP, Appellant

v.

CONTINENTAL PARTS COMPANY d/b/a Continental Parts Company, Inc. d/b/a T-K Distributors of Texas d/b/a T-K Distributors of Texas, Inc. d/b/a Padco d/b/a Padco, Inc., Appellee

No. 05-97-01199-CV.

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April 4, 2000.

Before Justices KINKEADE, O’NEILL, and POFF.¹

OPINION

POFF, J.

*1 Lael Kelty Collop appeals a judgment after a jury trial in favor of Continental Parts Company (Continental) for alleged violations of the American with Disabilities Act (ADA). In eight points of error, Collop generally contends the trial court erred in granting Continental a partial summary judgment before trial on her other claims. We affirm the trial court’s judgment.

Factual Background

Collop contends she was injured while in the course of her employment with Continental. After the injury, Collop immediately consulted a physician. Collop returned to work the same day with a wrist splint, and was terminated within hours of returning to work. Collop sued Continental for wrongful discharge under the Texas Workers Compensation Act (TWCA) and the ADA, alleging she was fired for filing a legitimate workers compensation claim. Collop also asserts Continental treated her as if she were disabled when they terminated her from employment. Continental filed a motion for summary judgment on all claims. The trial court granted a partial summary judgment in favor of Continental on Collop’s ADA claim. The TWCA claim was tried before a jury, which returned a verdict in favor of Collop. The trial court then issued a final judgment in accordance with the summary judgment and the jury verdict. Collop appeals only the ADA summary judgment.

Standard of Review

The function of a summary judgment is not to deprive a litigant of the right to a full hearing on the merits of any real issue of fact but to eliminate patently unmeritorious claims and untenable defenses. See Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952). The standards for reviewing a summary judgment are well established:

1. The movant for summary judgment has the burden of showing there is no genuine issue of material fact and it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

When reviewing a summary judgment granted on general grounds, the court considers whether any theories set forth in the motion will support the summary judgment. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993). If any theory advanced in a motion for summary judgment supports the granting of summary judgment, a court of appeals may affirm, regardless of whether the trial court specified the grounds on which it relied. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625-26 (Tex.1996).

Ada Claim

In points of error one and two, Collop contends the trial court erred in granting Continental’s motion for summary judgment on her ADA claim because she raised a fact issue as to whether: (1) Continental terminated her because they regarded her as having an impairment; and (2) Continental’s reason for terminating Collop was mere pretext for disability discrimination. The ADA defines “disability” as “(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” See Americans with Disabilities Act, 42 U.S.C.A. § 12102(2)(c) (West 1999). An individual who has an impairment that is not substantially limiting (or has no impairment at all) is “disabled” under the ADA if the individual is treated by her employer as having an impairment that substantially limits a major life activity. See Tardie v. Rehabilitation Hosp. of R. I., 168 F.3d 538, 541 (1 ^st Cir.1999); Newberry v. East Tex. State Univ., 161 F.3d 276, 279 (5 ^th Cir.1998).

*2 In their summary judgment motion, Continental asserts no issue of material fact exists regarding Collop’s ADA claim, and that Collop failed to prove a prima facie case of discrimination under the ADA. Continental presented evidence that no person at Collop’s workplace treated Collop as if she had an impairment which substantially limited a major life activity. Further, Continental presented evidence that the reason for Collop’s termination was her unsatisfactory work.

Collop contends Continental regarded her as having a substantially limiting impairment. However, Collop offered no evidence any of her supervisors, or any employee of Continental considered her limited, much less substantially limited, in her ability to work either at Continental or generally. Further, Collop’s only evidence supporting this claim consisted of her contention that her supervisor, Mason, exhibited a cold and angry demeanor when she returned from work following her visit to the doctor. After the defendants produce evidence entitling them to summary judgment, the burden shifts to the plaintiff to present evidence creating a fact issue. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). Collop has shown no evidence that any person employed at Continental treated her as disabled. Therefore, Collop failed to raise a fact issue regarding whether she is a qualified individual under the ADA. Collop never established a prima facie case of discrimination under the ADA. We overrule point of error one. In light of our disposition of point of error one, we need not address point of error two.

Procedural Issues

In points of error three through five, Collop contends the trial court erred in granting Continental’s motion for summary judgment because: (1) Continental did not properly file its motion and supporting brief within the proper time limitations; and (2) Continental’s objections and reply to Collop’s affidavit were not properly filed. Continental filed its motion for summary judgment on July 12, 1996 and its brief in support on July 30, 1996. The hearing was held on August 13, 1996. Continental met the requirement of filing the motion twenty-one days before the time specified for the hearing. See Tex.R. Civ P. 166a(c).

Continental moved for summary judgment on the ADA claim on the following grounds: (1) Collop was not disabled within the meaning of the ADA; (2) Collop was not discriminated against under the ADA; and (3) Collop failed to prove a prima facie case under the ADA. As summary judgment proof, Continental presented in their motion: (1) Collop’s oral deposition; (2) Collop’s response to Continental’s interrogatories; (3) Collop’s supplemental response to Continental’s first set of interrogatories; and 4) the affidavit of David Mason, Jr. Continental’s motion contained all theories supporting the summary judgment. See S.S., 858 S.W.2d at 380. Continental’s brief in support of the motion simply added discussion on further case law in support of the motion, and did not include any new ground for judgment. Therefore, the brief did not have to comply with the twenty-one day notice requirement. See Tex.R. Civ. P. 166a. We overrule points of error three and four.

*3 In point of error five, Collop contends the trial court erred in granting Continental’s motion for summary judgment because Continental’s objections and reply to Collop’s affidavit were filed in violation of the proper time limitations. There is no deadline in rule 166a of the Texas Rules of Civil Procedure for a movant’s reply to the response. See Knapp v. Eppright, 783 S.W.2d 293, 296 (Tex.App.-Houston [14 ^th Dist.] 1989, no writ) (court considered movant’s reply filed three days before hearing). We overrule point of error five.

In point of error six, Collop contends the trial court erred in granting Continental’s motion for summary judgment because Continental’s summary judgment attempted to circumvent the Texas special exception procedure. Collop argues Continental’s summary judgment motion claimed Collop failed to state a cause of action or included surplus elements in her petition. There is nothing in the record to indicate the trial court granted Continental’s motion for summary judgment based solely on Collop’s pleadings failing to state a cause of action or including surplus elements in her claims. When the trial court does not specify the grounds upon which it grants summary judgment, we affirm the trial court’s judgment if any of the movant’s grounds support the summary judgment. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Texas Stadium Corp. v. Savings of Am., 933 S.W.2d 616, 618 (Tex.App.-Dallas 1996, writ denied). As discussed previously, the trial court did not err in granting the summary judgment on the grounds that Collop did not qualify as disabled under the ADA. We overrule point of error six.

Evidentiary Issues

In points of error seven and eight, Collop contends the trial court erred in granting Continental’s motion for summary judgment because Continental’s motion contained improper evidence in the form of an affidavit from Continental’s attorney Michael E. Robinson and Collop’s supervisor David Mason, Jr. Collop never obtained a ruling on her objections to the affidavits. To avoid waiver of a formal defect, a party must object or except in the trial court, bring the objection or exception to the trial court’s attention, and secure a ruling. See Tex.R.App. P. 33.1; McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 n. 7 (Tex.1993) (addressing former rule 52(a)) (party asserting exceptions must obtain ruling at or prior to hearing on motion for summary judgment); Giese v. NCNB Tex. Forney Banking Ctr., 881 S.W.2d 776, 782 (Tex.App.-Dallas 1994, no writ). Collop waived her objections to any defects by failing to secure a ruling from the trial court on the objections. Therefore, the affidavits remain a part of the summary judgment evidence. See Utilities Pipeline Co. v. American Petrofina Mktg., 760 S.W.2d 719, 723 (Tex.App.-Dallas 1988, no writ) (unless an order sustaining the objection is reduced to writing, signed, and entered of record, the objected-to evidence remains part of the summary judgment evidence). We overrule points of error seven and eight.

*4 The judgment of the trial court is affirmed.

	Footnotes
1		The Honorable H. Bryan Poff, Jr., Retired Justice, Court of Appeals, Seventh District of Texas at Amarillo, sitting by assignment.