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Kennedy v. Disa, Inc.

Court of Appeals of Texas, First District

May 23, 2019

JOHN W. KENNEDY, Appellant
v.
DISA, INC. AND DISA GLOBAL SOLUTIONS, INC., Appellees

          On Appeal from the 61st District Court Harris County, Texas, Trial Court Case No. 2015-52225

          Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

          MEMORANDUM OPINION

          Gordon Goodman Justice.

         John Kennedy sued the third-party administrator of his employer's drug-testing program for negligence and under other theories after the administrator informed the employer of a positive drug test result that retesting showed to be false.

         On appeal, Kennedy contends that the trial court erred and violated his due process rights by granting summary judgment in favor of DISA, Inc. and DISA Global Solutions, Inc. and denying his motions for post-judgment relief, because he did not receive proper notice of the hearing date. Kennedy also contends that summary judgment is improper because DISA's motion failed to address the new claims and allegations raised in his third amended petition. Finding no error, we affirm.

         BACKGROUND

         Kennedy submitted to periodic drug testing as a condition of his employment as a service equipment operator with Air Liquide. In 2013, a drug-testing laboratory initially reported that his urine tested positive for the presence of an illegal substance. Based on the reported result, DISA listed Kennedy's work eligibility status as "inactive" on its database, which notified other industry employers that his drug-test results made him unemployable. Air Liquide terminated Kennedy's employment, and Kennedy requested re-analysis of the urine sample. This time, the sample tested negative for the illegal substance. Kennedy returned to work and Air Liquide gave him back pay for the lost workdays.

         In September 2015, Kennedy sued DISA for gross negligence, intentional infliction of emotional distress, breach of contract, and fraud. DISA initially moved for traditional and no-evidence summary judgment in January 2017 and set the motion for submission on February 20, 2017. After learning that Kennedy would seek a continuance, DISA agreed to withdraw its motion from the trial court's submission docket and reset it after entry of the new docket-control order, which would extend the dispositive-motion deadline.

         On February 28, 2017, the trial court granted Kennedy's motion for continuance of the trial setting and signed a revised docket-control order. Three weeks later, the parties moved for continuance again, asking the trial court to postpone the trial setting until November 2017 and requesting new docket deadlines. The trial court granted the continuance and, on April 11, 2017, signed a new docket-control order.

         Before the parties could complete discovery, Hurricane Harvey struck the Houston area, creating further complications and delay. On September 28, the parties jointly moved to continue the trial setting and for entry of a new docket-control order. Kennedy also requested a continuance of DISA's motion for summary judgment. The trial court granted the trial continuance, vacated the prior docket-control order, and signed a new docket-control order in early October 2017.

         In January 2018-more than two years after Kennedy filed his original petition-the parties made their final request for extension of the docket-control deadlines and continuance of the trial date. The trial court granted the request and adopted the jointly proposed dispositive-motion deadline of April 25, 2018. The court's docket-control order declares that dispositive motions "[m]ust be heard by oral hearing or submission. If subject to an interlocutory appeal, dispositive motions or pleas must be heard by this date. Rule 166a(i) motions may not be heard before this date."

         On April 4, 2018, DISA filed an amended motion for summary judgment raising both traditional and no-evidence grounds. At the same time, it filed a notice setting the motion "for hearing by submission" to the court on April 23, 2018 as well as an amended notice setting the motion for oral hearing on May 31, 2018.

         Kennedy's counsel sent an email to DISA's counsel asking for clarification about the two notices:

There were two different hearing dates submitted for your MSJ. One by submission April 23, and one for oral hearing for ...

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