Opinion issued May 23, 2019




                                       In The

                                Court of Appeals
                                       For The

                           First District of Texas
                              ————————————
                               NO. 01-18-00744-CV
                             ———————————
                        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


                           MEMORANDUM OPINION

      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


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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


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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 May 31st. Which one
      is it?

      DISA’s counsel responded within the hour, explaining:

      If [the Court] doesn’t rule before the oral hearing date in May, we will
      have an oral hearing. But the submission date is April 23.

In reply, Kennedy’s counsel protested, “I don’t think you can set the MSJ for two

hearing dates.” DISA’s counsel reiterated that the motion was “set for submission

on April 23. If it’s not ruled on during the next month, we want an oral hearing.”

      DISA’s counsel explained that the court had allowed her to use this approach

in other cases. When the trial court was made aware of the parties’ dispute, however,

it informed DISA’s counsel by email on April 4th that she could “set the MSJ for
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submission or oral hearing but not both,” and asked her to let the court know which

she wanted. DISA’s counsel responded to the court, “Please se[t] it for submission.”

Kennedy’s counsel was copied on these emails.

      In an April 16, 2018 motion for continuance of the summary judgment

proceeding, Kennedy acknowledged that the motion was “set for submission hearing

for April 23, 2018.” The next day, April 17th, Kennedy filed a third amended

petition, which added a breach of fiduciary duty claim against DISA, and asked the

trial court for leave to file the late petition. DISA’s response in opposition to

Kennedy’s motion for continuance, filed April 20, 2018, confirmed that the amended

motion for summary judgment was set for submission on April 23, 2018.

      On May 18, 2018, the trial court issued orders denying Kennedy’s motion for

continuance of the summary-judgment proceeding, for leave to file a late summary-

judgment response, and his motion to compel and for discovery sanctions, and it

granted DISA’s amended motion for summary judgment.

      In his motion for new trial, Kennedy claimed confusion over the summary-

judgment motion’s submission date. Kennedy alternatively contended that the trial

court erroneously ruled before the May 31st oral hearing date and before his response

was due, claiming that he relied on the May 31st oral hearing date because the trial

court’s online calendar included that setting but not the April 23rd submission date.

The trial court denied Kennedy’s motion for new trial and his motion for rehearing.


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                                 DISCUSSION

      Kennedy claims that the trial court erred in denying his motion for new trial

on the grounds that he did not receive proper notice of the summary-judgment

submission date and, alternatively, because it ruled on DISA’s motion before his

response was due. He further contends that summary judgment is improper because

DISA’s motion failed to address the claims and allegations added in his third

amended petition.

I.    Notice of the Summary-Judgment Motion’s Submission

      Kennedy challenges the timing of the trial court’s summary-judgment ruling,

contending that he did not receive notice that would allow him to calculate the

deadline for filing a timely response. The notice provisions associated with

summary-judgment procedure under Rule 166a are strictly construed. Ready v.

Alpha Bldg. Corp., 467 S.W.3d 580, 584 (Tex. App.—Houston [1st Dist.] 2015, no

pet.). Notice of hearing for submission of a summary-judgment motion is mandatory

and essential to due process. See TEX. R. CIV. P. 166a(c); Martin v. Martin, Martin

& Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998); Ready, 467 S.W.3d at 584.

Thus, failure to provide notice of the submission date for a summary-judgment

motion constitutes error. Ready, 467 S.W.3d at 585.

      Rule 166a sets a strict filing schedule for the summary-judgment motion and

response, one that cannot be changed without the trial court’s permission. See TEX.


                                        6
R. CIV. P. 166a(c). The summary-judgment movant, “with notice to opposing

counsel,” must file and serve the motion and any supporting affidavits “at least

twenty-one days before the time specified for hearing.” Id. The nonmovant must file

and serve its written response and opposing affidavits “not later than seven days

prior to the day of hearing.” Id.

      Although Rule 166a(c) uses the hearing date as the fixed point for calculating

these filing deadlines, it does not make an oral hearing essential. Martin, 989 S.W.2d

at 359. The Texas Supreme Court explained that the rule requires notice of hearing

or submission because “[t]he hearing date determines the time for response to the

motion; without notice of hearing, the respondent cannot know when the response is

due.” Id.; see also Ready, 467 S.W.3d at 585 (observing that by hinging the deadline

to file a response on the submission date, the rule “[r]eflect[s] the reality that the

submission of a summary-judgment motion is often continued to allow further

discovery to facilitate a response”). Contrary to Kennedy’s contention, then, the

submission date is not a deadline for the court to rule; it is notice to the nonmovant

of the deadline for filing a summary-judgment response. See Martin, 989 S.W.2d at

359; Goode v. Avis Rent-a-Car, 832 S.W.2d 202, 204 (Tex. App.—Houston [1st

Dist.] 1992, writ denied) (“[T]he primary purpose of the notice required by rule

166a(c) is to allow the nonmovant to calculate the date by which he must file a

written response or opposing affidavits.”).


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      Kennedy further claims that he was entitled to rely exclusively on the court’s

online calendar—which continued to show the May 31st oral hearing setting but did

not show the April 23rd submission date—as the basis for calculating the deadline

to file his response.1 The rules of civil procedure, however, hold the movant

responsible for serving the other parties with notice of hearing and submission

dates—not the trial court. See TEX. R. CIV. P. 21(b), 166a(c). If Kennedy decided to

ignore DISA’s notice, he did so at his own peril.

      The parties’ email exchange with the trial court unequivocally shows that

DISA chose the April 23rd submission date and waived the later oral hearing setting.

That submission date complies with the April 25, 2018 dispositive-motion deadline

agreed to by the parties and incorporated into the governing docket-control order;

the oral hearing date does not. And, because DISA chose to retain the same

submission date contained in its original notice of submission, DISA was not

required to serve an amended notice of submission.

      The record shows that Kennedy received proper notice of the summary-

judgment motion’s April 23rd submission date, and the trial court ruled on the

motion after that date. We therefore hold that the trial court did not err in ruling on

the motion when it did.


1
      Kennedy does not address whether the trial court’s online calendar included
      submission settings, which do not require the judge to be in the courtroom at a
      specific time, or only oral hearing settings, which do.
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II.   Challenge to the Merits of the Summary-Judgment Ruling

      Finally, Kennedy claims that DISA’s motion for summary judgment does not

support the judgment because it does not address the breach of fiduciary duty claim

that Kennedy first included in his third amended petition, filed on April 17, 2018.

DISA’s hybrid motion for summary judgment expressly challenges each of the

causes of action asserted in Kennedy’s second amended petition on no-evidence

grounds. A trial court must grant a no-evidence motion for summary judgment if the

movant identifies one or more elements of a claim or defense for which the

nonmovant would have the burden of proof at trial and the nonmovant produces no

admissible evidence raising a genuine issue of material fact as to each challenged

element. See TEX. R. CIV. P. 166a(i); Lockett v. HB Zachry Co., 285 S.W.3d 63, 67

(Tex. App.—Houston [1st Dist.] 2009, no pet.). Because Kennedy filed no response

to DISA’s summary-judgment motion, the no-evidence grounds are dispositive of

his challenge.

      Kennedy’s contention wrongly assumes that he timely filed his third amended

petition, even though he moved for leave to file it out of time. A plaintiff timely files

an amended pleading if he does so seven days before trial. TEX. R. CIV. P. 63; see

also Sosa v. Cent. Power & Light, 909 S.W.2d 893, 895 (Tex. 1995) (per curiam)

(under rule 63, leave not required for plaintiff to amend if amended petition filed

“seven days or more before the date of trial” (internal quotation marks omitted)). For


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purposes of rule 63, “[a] summary judgment proceeding is a trial.” Goswami v.

Metro. Sav. & Loan Ass’n, 751 S.W.2d 487, 490 (Tex. 1988); see Wheeler v. Yettie

Kersting Mem’l Hosp., 761 S.W.2d 785, 787 (Tex. App.—Houston [1st Dist.] 1988,

writ denied).

      Kennedy had until April 16, 2017 to timely file the amended pleading, but he

did not file it until the next day. An appellate court presumes that the trial court

granted leave to file an amended pleading when its order states that all pleadings

were considered, the record does not indicate that an amended pleading was not

considered, and the opposing party does not show surprise. See Goswami, 751

S.W.2d at 490; see also Cont’l Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 276 (Tex.

1996).

      The record contains no ruling on Kennedy’s motion for leave. The trial court’s

summary-judgment order states that it “considered the motion, all responses, and

arguments of counsel,” but it does not mention pleadings. Accordingly, we cannot

presume that the trial court granted Kennedy leave to file his third amended petition.

See Markovsky v. Kirby Tower, L.P., No. 01-13-00516-CV, 2015 WL 8942528, at

*5 (Tex. App.—Houston [1st Dist.] Dec. 15, 2015, no pet.) (mem. op.) (declaring

that the summary-judgment order must affirmatively state or show that the trial court

considered the late-filed pleading “to support a presumption that leave to file the




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answer was granted”). Because DISA’s motion addressed Kennedy’s live pleadings,

we hold that the trial court did not err in granting summary judgment.

                                 CONCLUSION

      We affirm the trial court’s judgment.




                                              Gordon Goodman
                                              Justice

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




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