JOHN W. KENNEDY, Appellant
DISA, INC. AND DISA GLOBAL SOLUTIONS, INC., Appellees
Appeal from the 61st District Court Harris County, Texas,
Trial Court Case No. 2015-52225
consists of Chief Justice Radack and Justices Goodman and
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
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
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.
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.
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.
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.
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."
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.
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