Opinion
01-21-00355-CV
09-01-2022
CHARLES MASSEY, Appellant v. DISA GLOBAL SOLUTIONS, INC., DISA, INC., DISA HOLDING CORP, Appellees
On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2018-44648
Panel consists of Justices Landau, Hightower, and Rivas-Molloy.
MEMORANDUM OPINION
Veronica Rivas-Molloy Justice
Appellant Charles Massey, an equipment operator in the oil and gas industry, lost his job after his random drug test yielded a positive result for methamphetamine. Claiming his drug test had been administered improperly, Appellant sued DISA Global Solutions, Inc., the third-party administrator that coordinated his employer's drug-testing program, DISA Holding Corp., its parent company, and Disa, Inc.(collectively, "DISA") for negligence, gross negligence, violations of the Deceptive Trade Practices Act, breach of contract, negligent representation, tortious interference with prospective business relations, and breach of fiduciary duty. DISA moved for summary judgment against Massey on all claims. The trial court granted DISA's amended traditional and no-evidence motion for summary judgment and dismissed Massey's claims against DISA with prejudice. This appeal ensued.
DISA, Inc. is a d/b/a of Appellee DISA Global Solutions, Inc.
In four issues, Massey contends the trial court erred in granting summary judgment on his claims for negligence, gross negligence, violations of the Deceptive Trade Practices Act, and tortious interference with prospective business relations because he presented sufficient evidence to support his claims and the claims are not barred by the applicable statute of limitations.
Massey does not challenge the trial court's dismissal of his claims for breach of contract, negligent misrepresentation, and breach of fiduciary duty on appeal.
We affirm.
Background
A. Factual History
Turner Industries Group, LLC ("Turner") services the heavy industrial sector specializing in heavy industrial construction, pipe, module and vessel fabrication, equipment, rigging, and heavy hauling. During the relevant time, Massey worked at Turner as an equipment operator.
DISA is a third-party administrator of substance abuse programs. It contracts with employers, like Turner, to screen employees and provide workplace safety and compliance services for its clients, including employee drug and alcohol testing, employee background screening, and administration of substance abuse programs.
In 2015, DISA entered into a Master Services Agreement ("Agreement") with Turner to provide drug testing administration services in accordance with DISA's Contractors Consortium Hair Testing Substance Abuse Policy ("Substance Abuse Policy"), which Turner adopted. The Substance Abuse Policy is a standardized contractor substance abuse program intended to "promote[] a safe, drug abuse-free workplace that will reduce workplace incidents" and "standardize[] individual Owner site requirements and reduce[] the cost of repetitious substance testing of Contractor Employees."
To keep track of drug testing results, DISA provides employers with access to its online database, DISAWorks, which allows an employer to determine whether an employee is compliant with the employer's Substance Abuse Policy. DISA classifies compliant employees in its database as "active," and non-compliant employees-which includes those who receive a positive drug test result-as "inactive." Under the Substance Abuse Policy, an employee who is classified as "inactive" can regain his "active" status by completing a "return-to-duty" program. As part of that program, "inactive" employees receive counseling from an approved substance abuse rehabilitation provider.
Because Massey held a safety-sensitive position at Turner, he was subject to random drug testing under Turner's Substance Abuse Policy. On June 27, 2016, Massey was transported from a Shell job site to a Turner collection facility for drug testing. Turner collected Massey's hair specimen and sent the sample to
Psychemedics Corporation ("Psychemedics"), a certified forensic testing laboratory, for testing and analysis. A custody and control form, completed and signed by Massey and the Turner collector, accompanied the specimen. Massey's hair sample tested positive for methamphetamine. Psychemedics reported Massey's positive test to University Services for medical review. University Services, a third party, then assigned Dr. Suzanne Steele ("Dr. Steele"), a University Services Medical Review Officer ("MRO"), to interview Massey to determine whether to certify the positive test result.
On July 2, 2016, Dr. Steele ("Dr. Steele") spoke to Massey over the phone to determine whether she could verify the positive result. Dr. Steele memorialized her phone interview of Massey on a Medical Review Officer Worksheet ("MRO Worksheet"). The MRO Worksheet confirms that Dr. Steele spoke to Massey on July 2, 2016 at 12:31 pm. Among other things, the MRO indicates that Dr. Steele "made an affirmative statement of verification" and advised Massey that the information "may be disclosed to your employer" and "could result in your being determined medically unqualified." The MRO Worksheet further reflects that she asked Massey, "When was the last time you used the drug?", to which Massey responded, "huh?! I never had any in my life." The MRO Worksheet also reflects that during the July 2, 2016 call, Massey confirmed to Dr. Steele that he was not taking any prescription medications or being treated for any medical issues. Based on her interview of Massey, Dr. Steele concluded that there was no medical explanation for the presence of methamphetamine in Massey's hair sample. She thus certified the positive test result.
The record reflects Dr. Steele also tried to reach Massey over the phone on July 1, 2016.
Relying on Dr. Steele's MRO Worksheet and the laboratory report stating Massey's hair sample had tested positive for the presence of methamphetamine, DISA notified Turner of the positive test result and recorded Massey's status as "inactive" on DISAWorks on July 3, 2016. Turner terminated Massey's employment two days later, on July 5, 2016.
Pursuant to the Substance Abuse Policy, Massey requested a retest of his hair specimen. The remainder of Massey's original hair specimen was forwarded to Omega Laboratories ("Omega"), another certified forensic laboratory, for reconfirmation. Omega confirmed that Massey's hair specimen was positive for methamphetamine. Massey declined to participate in the Substance Abuse Policy's return-to-duty program to regain his "active" status and an opportunity to be rehired.
On July 18, 2016, about three weeks after the failed drug test, Massey submitted a different hair sample for drug testing to Quest Diagnostics which yielded a negative test result. Under the Substance Abuse Policy, an "inactive" employee must complete the return-to-work program to regain "active" status. Because Massey did not complete the program and the Quest Diagnostic drug test did not comply with the Substance Abuse Policy, the Quest Diagnostic test did not change the results of the initial June 27, 2016 drug test or Massey's resulting termination.
B. Procedural History
On July 4, 2018, Massey sued DISA and several other defendants asserting causes of action for negligence, gross negligence, breach of contract, defamation, intentional infliction of emotional distress, breach of fiduciary duty, and violations of the Deceptive Trade Practices Act ("DTPA"), the Texas Health and Safety Code Chapter 181, and the Texas Medical Records Privacy Act stemming from the alleged improper administration of his drug test. In his second amended petition-the live pleading in this case-Massey asserted claims against DISA for negligence, gross negligence, DTPA violations, breach of contract, negligent misrepresentation, tortious interference with prospective relations and economic advantage, and breach of fiduciary duty.
Massey also named University Services, University MRO, LLC, and Psychemedics, Inc. as defendants, but later nonsuited them.
Massey dropped his claims for defamation, intentional infliction of emotional distress, and violations of the Texas Health and Safety Code Chapter 181 and Texas Medical Records Privacy Act.
DISA filed an amended traditional and no-evidence motion for summary judgment on Massey's claims. It argued the applicable statute of limitations barred Massey's negligence, gross negligence, DTPA, negligent misrepresentation, and tortious interference with prospective relations and economic advantage claims. DISA further argued that it had negated the discovery rule and Massey had presented no or insufficient evidence to support his claims. In support of its motion, DISA attached (1) Massey's deposition and exhibits, (2) the declarations and exhibits of (i) Valerie Rideaux, DISA's Drug Testing Support Manager, (ii) Melissa Liberatore, University Services MRO-A Supervisor, and (iii) Mia Hicks, a Certified Substance Abuse Program Administrator and Drug Testing Compliance Manager for DISA, (3) the affidavit and exhibits of Thomas Cairns, a Senior Scientific Advisor for Psychemedics, (4) Omega's re-testing results, (5) Massey's original and amended petitions, (6) relevant pages of Dr. Steele's and Massey's phone records, (7) isomer test results, and (8) Massey's experts' depositions.
DISA initially filed its Traditional and No-Evidence Motion for Summary Judgment on Massey's original claims on April 11, 2020, which the trial court denied. On February 23, 2021, after Massey filed his Second Amended Petition deleting some claims and adding others, DISA filed its Amended Traditional and No-Evidence Motion for Summary Judgment addressing the claims asserted in Massey's Second Amended Petition.
Attachment 1 to Melissa Liberatore's Declaration is Dr. Steele's MRO Worksheet.
Massey responded to DISA's amended motion for summary judgment arguing he presented sufficient evidence of the elements of each of his claims to survive summary judgment. He also argued that DISA had not established that Massey's claims were time barred. In support of his response, Massey attached (1) his declaration, (2) his experts' declarations, (3) the deposition of Brendon Conley Brown, DISA's corporate representative, (4) a copy of proposed rules to 42 C.F.R. Chapter 1, (5) a copy of DISA's Contractors Consortium Hair Testing Substance Abuse Policy, (6) DISA's Drug Test Certificate, (7) Quest's Laboratory Report, (8) a Universal Membership Application Form, (9) DISAWorks' status report for Massey, (10) a fax from DISA reflecting Massey's inactive status, and (11) the Second Amendment to the Psychemedics Distributor Agreement.
DISA filed a reply arguing that Massey had not established he filed his claims within the applicable statute of limitations and that his only evidence, a sham declaration, should be disregarded. DISA further argued that Massey had presented no evidence raising a material issue of fact on each of his claims.
Following a hearing, the trial court granted DISA's amended traditional and no-evidence motion for summary judgment and dismissed Massey's claims against DISA with prejudice. Massey filed a motion for new trial which was overruled by operation of law. This appeal followed.
The trial court subsequently entered an order denying the motion for new trial on July 1, 2021.
Discussion
In his first three issues, Massey challenges the propriety of the trial court's order granting summary judgment on his claims for negligence and gross negligence, violations of the DTPA, and tortious interference with prospective relations and economic advantage. In his fourth issue, he argues that DISA did not establish that his claims were time barred by the applicable statute of limitations. We address Massey's fourth issue first because it is dispositive.
A. Standard of Review
We review a trial court's order granting summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). When a trial court grants summary judgment without specifying the grounds for its ruling, we must uphold the trial court's judgment if any one of the theories advanced in the motion for summary judgment is meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.- Houston [1st Dist.] 2005, pet. denied).
In a traditional motion for summary judgment, the movant bears the burden to establish that no genuine issue of material fact exists and the trial court should grant judgment as a matter of law. Tex.R.Civ.P. 166a(c); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). The movant must negate at least one essential element of each of the plaintiff's causes of action or establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
In a no-evidence motion for summary judgment, the movant asserts that, after adequate time for discovery, there is no evidence to support an essential element of the nonmovant's claim on which the nonmovant would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523-24 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the nonmovant to present evidence raising a genuine issue of material fact as to each of the elements challenged in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Hahn, 321 S.W.3d at 524.
A genuine issue of material fact exists if the nonmovant produces more than a scintilla of evidence establishing the existence of the challenged elements. Beverick, 186 S.W.3d at 149. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Id. (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995)).
A defendant moving for summary judgment on the affirmative defense of limitations bears the burden to establish the elements of that defense conclusively, including when the cause of action accrued. Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 833-34 (Tex. 2018) (citing KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999)). When the plaintiff pleads the discovery rule as an exception to limitations, the defendant also bears the burden to negate the rule. Id. at 834; Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex. 1998). Defendants may do this either by establishing that the discovery rule does not apply or, if the rule applies, that summary judgment evidence negates it. Schlumberger Tech. Corp., 544 S.W.3d at 834; Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).
B. Applicable Law
A plaintiff must bring claims for negligence, gross negligence, DTPA violations, and tortious interference with prospective business relations within two years of the date the claims accrue. See Tex. Civ. Prac. & Rem. Code § 16.003; Tex. Bus. & Com. Code § 17.565. Generally, a cause of action accrues (1) "when facts come into existence [that] authorize a claimant to seek a judicial remedy," (2) "when a wrongful act causes some legal injury," or (3) "whenever one person may sue another." Am. Star Energy & Minerals Corp. v. Stowers, 457 S.W.3d 427, 430 (Tex. 2015) (internal quotations omitted).
"Once a claimant learns of a wrongful injury, the statute of limitations begins to run even if the claimant does not yet know 'the specific cause of the injury; the party responsible for it; the full extent of it; or the chances of avoiding it.'" Gonzales v. Sw. Olshan Found. Repair Co., 400 S.W.3d 52, 58 (Tex. 2013) (applying law to plaintiff's DTPA claim) (quoting Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 207 (Tex. 2011)). Knowledge of the legal injury, however slight, begins accrual of the cause of action. See United Healthcare Servs., Inc. v. First Street Hosp. LP, 570 S.W.3d 323, 335 (Tex. App.-Houston [1st Dist.] 2018, pet. denied); Video Works Franchise Corp. v. Hughes & Luce, No. 05-92-01822, 1993 WL 480257, at *8 (Tex. App.-Dallas Nov. 12, 1993, no writ). That knowledge triggers the claimant's duty to exercise reasonable diligence to investigate the problem. Id. The date on which a cause of action accrues is a question of law. Knott, 128 S.W.3d at 221.
C. Analysis
In its amended motion for summary judgment, DISA argued that Massey's claims for negligence, gross negligence, violations of the DTPA, and tortious interference with prospective business relations accrued on July 2, 2016, the date Massey learned of his positive test result from Dr. Steele, the Medical Review Officer. According to DISA, Dr. Steele's contemporaneous MRO Worksheet stating she called Massey and informed him of his positive test result on July 2, 2016, conclusively establishes accrual. DISA contends that because Massey filed his original petition on July 4, 2018-more than two years after his claims accrued- his claims are time barred.
July 4, 2018 fell on a Wednesday.
In his summary judgment response, Massey argued that DISA's summary judgment evidence did not establish that Dr. Steele told him he had tested positive for drugs. He further claimed that even if Dr. Steele had, in fact, informed him of his positive test results on July 2, 2016, his claims did not accrue until July 5, 2016, when Turner terminated his employment and his harm and damages arose.
In support of its argument that Massey's claims accrued on July 2, 2016, DISA relies on the Texas Supreme Court's decision in Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572 (Tex. 2017), a case factually similar to the one before us. In that case, Rincones failed a drug test administered by DISA resulting in his termination. Following his termination, Rincones sued DISA, among others, for negligence and tortious interference with his employment contract. See id. at 578, 590. The evidence established that DISA informed Rincones that his sample had tested positive for marijuana use and that DISA had designated him as "inactive" in its database requiring him to complete certain rehabilitation requirements before returning to work. See id. at 578. Rather than completing a rehabilitation program, Rincones submitted a urine sample to a private doctor which later tested negative. See id. Rincones informed his employer and DISA of the negative results and offered them as proof that the DISA-administered test results were incorrect. See id. But DISA and the employer declined to change their position because the employer's substance abuse program did not sanction the private testing Rincones had secured. See id.
DISA moved for summary judgment on Rincones' claims arguing his claims were time barred. See id. at 591. DISA argued that Rincones' claims had accrued on the date he was placed on "inactive" status and thus the two-year statute of limitations had run on his claims. See id. Rincones responded that his claims had accrued on the date the Texas Workforce Commission issued its charge that Rincones had effectively been terminated and thus had lost his ability to regain "active" DISA status. See id. The trial court granted summary judgment in favor of DISA and Rincones appealed. See id. at 579. The appellate court reversed the trial court's order granting summary judgment to DISA and reinstated Rincones' tortious interference and negligence claims. See id. at 592-93.
On petition for review, the Texas Supreme Court stated, "We follow our rule that 'a cause of action generally accrues at the time when facts come into existence which authorize a claimant to seek a judicial remedy . . . .'" Id. at 593. The Court concluded that Rincones' claims for tortious interference with contract and negligence had accrued on the day Rincones was informed of his failed drug test and "inactive" status because "[o]n that day, he knew of the negative effects his inactive status would have on his job: he would no longer receive income or assignment from [his employer] unless he followed procedures to regain active status." Id. at 592.
Citing Rincones, DISA argued in its motion for summary judgment that Massey's claims accrued on July 2, 2016, the date he learned of his test results from Dr. Steele. In support of its motion, DISA attached Dr. Steele's MRO Worksheet, Massey's deposition transcript, and relevant pages from Dr. Steele's and Massey's phone records. DISA argues the evidence established that Dr. Steele called Massey and informed him of his positive test result on July 2, 2016, and thus his claims accrued on that date. Because Massey did not file his original petition until July 4, 2018-over two years after his claims accrued-DISA argues his claims are time barred.
Massey did not rebut the information on Dr. Steele's MRO Worksheet, nor did he deny speaking to Dr. Steele on July 2, 2016. Instead, Massey argues that DISA failed to meet its burden to establish the date his claims accrued because DISA presented no testimony from Dr. Steele establishing she told him he had tested positive for drugs. Massey claims that Dr. Steele's MRO Worksheet merely shows that Dr. Steele checked a box stating she had "made an affirmative statement of verification." He claims the MRO Worksheet does not establish that Dr. Steele told him he had tested positive for drugs.
The evidence establishes that Psychemedics reported the positive test result to University Services, who then assigned Dr. Steele to interview Massey to determine whether she could certify the positive test result. Dr. Steele's MRO Worksheet reflects that Dr. Steele called Massey on July 1 and July 2, 2016. Dr. Steele's phone records indicate that on July 1 and July 2, 2016, she made calls from her 530-968-8378 phone number to Massey at three of his phone numbers: 936-525-8244, 281-622-3860, and 936-653-3110. The MRO Worksheet further reflects that Dr. Steele spoke to Massey on July 2, 2016 at 12:31 p.m. Massey's phone records confirm that he had a seven-minute phone call with Dr. Steele on July 2, 2016, on his 936-525-8244 phone number.
Massey's phone records reflect that the seven-minute phone call was at 11:30am on July 2, 2016, while the MRO Worksheet reflects that the call was at 12:31pm. Dr. Steele's employer, University Services, is located in Philadelphia, Pennsylvania, and thus her records reflect Eastern Standard Time. Massey lived and worked in Texas. As such, his phone records reflect Central Standard Time.
Dr. Steele made contemporaneous notes on the MRO Worksheet detailing her telephonic interview of Massey on July 2, 2016. Her notes reflect that she made an "affirmative statement of verification" and told Massey that the information "may be disclosed to your employer" and "could result in your being determined medically unqualified." She also stated she informed Massey that his "continued performance of your safety-sensitive function could pose a significant safety risk." Dr. Steele also noted on the MRO Worksheet that she asked Massey, "When was the last time you used the drug?", to which Massey replied, "huh?! I never had any in my life." The MRO Worksheet also reflects that during the call, Massey confirmed to Dr. Steele that he was not taking any prescription medications or being treated for any medical issues. Dr. Steele's notes state that Massey mentioned his position as a "heavy equipment operator" and role as a deacon at his church-facts Dr. Steele would not have known had she not spoken to Massey on July 2, 2016. At his deposition, Massey confirmed that the phone number reflected on the MRO Worksheet is his and that he is a deacon at his church.
In support of his argument that his claims are not time barred, Massey points to his declaration attached to his summary judgment response, where he states: "I am 100% certain that the MRO did not tell me that I had tested positive for methamphetamine" and "I am 100% certain that the first time I learned that I had falsely tested positive for methamphetamine was on July 5th when Turner had informed me of the results." According to Massey, this evidence establishes that his claims accrued on July 5, 2016, and thus his original petition filed on July 4, 2018, was timely.
In response, DISA argues that Massey's declaration, filed after his deposition and after DISA moved for summary judgment, is a self-serving sham declaration that should be disregarded because Massey previously testified at his deposition that he could not remember whether the Medical Review Officer had called him. DISA argues that the affidavit contradicts Massey's earlier deposition testimony, and as such, the affidavit is a "sham" that cannot "create a genuine issue of fact."
1. DISA's Sham Affidavit Objection to Massey's Declaration
The sham affidavit rule is a procedural tool that permits a trial court to disregard an affidavit submitted in opposition to a motion for summary judgment when the affidavit conflicts with the affiant's prior sworn testimony and does not provide an adequate explanation for the conflict. See Lujan v. Navistar, Inc., 555 S.W.3d 79, 85 (Tex. 2018); Gauthia v. Arnold & Itkin, L.L.P., No. 01-19-00143-CV, 2020 WL 5552458, at *9 (Tex. App.-Houston [1st Dist.] Sept. 17, 2020, no pet.) (mem. op.). The sham affidavit rule may be applied when "(1) the affidavit is executed after [the affiant's] deposition and (2) there is a clear contradiction on (3) a material point (4) without explanation[.]" Cnty. of El Paso v. Aguilar, 600 S.W.3d 62, 75 (Tex. App.-El Paso 2020, no pet.). "A fact is material if its existence might affect the outcome of the suit under the governing law[.]" Fraire v. Budget Rent-A-Car of El Paso, Inc., 441 S.W.3d 523, 527 (Tex. App.-El Paso 2014, pet. denied) (quoting Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.-San Antonio 1998, pet. denied)).
"[A] court asked to disregard a conflicting affidavit must 'examine the nature and extent of the differences in the facts asserted in the documents to determine what effect a conflict should be given in a particular case.'" Gauthia, 2020 WL 5552458, at *9 (quoting Lujan, 555 S.W.3d at 88). We may reverse a trial court's refusal to consider evidence under the sham affidavit rule only if the trial court's refusal was an abuse of discretion. Lujan, 555 S.W.3d at 84.
After reviewing Massey's sworn deposition testimony and comparing it with his sworn declaration, we conclude the trial court did not abuse its discretion in disregarding Massey's declaration. At his deposition, Massey testified that he did not remember speaking to Dr. Steele or a Medical Review Officer. He testified:
Q: Did you talk to a lady by the name of Suzanne Steele?
A: I don't know no Suzanne Steele.
Q: Did you talk to someone on the phone who asked you if you were taking prescription medications?
A: I may have got that question, but I wasn't taking any kind of a medicine.
Q: Do you recall talking to someone on the telephone and them asking you if you were taking prescription medications?
A: It's possible that I got a call, but I don't, say, remember.
Q: Did anyone ask you if you were being treated for medical issues, somebody on the telephone?
A: I don't know. I don't-I don't have a reason that somebody should have called me and asked me that. I'm not saying that it didn't happen, but I don't remember.
Q: Did you speak to someone on your house phone after you took your drug test who asked you questions about whether you were taking prescription medications?
A: I don't remember.
Despite this testimony, Massey subsequently stated in his declaration that he was "100% certain that the MRO did not tell [him] that [he] had tested positive for methamphetamine."
Given Massey's deposition testimony that he could not remember whether he had spoken to Dr. Steele or a Medical Review Officer, it follows he would have no memory of any such call, much less "100% certainty" about the contents of the call.
Massey's declaration statement that he remembered the contents of the call with "100% certainty" contradicts Massey's earlier deposition testimony that "it is possible that I got a call" but "I don't remember" whether he spoke to a Medical Review Officer, and his further testimony that he did not "remember" if he "spoke to someone on [his] phone" who asked him questions about "whether [he] was taking prescription medications." Massey's contradictions on this point are material because they affect the determination of when Massey first learned of his positive test results and thus the date his claims accrued for purposes of limitations. See Fraire, 441 S.W.3d at 527. Massey did not explain or try to resolve the contradiction or disparity in his declaration. See Lujan, 555 S.W.3d at 86.
Given the disparity between Massey's declaration and deposition testimony on this key point and the materiality of such disparity, we conclude the trial court did not abuse its discretion in refusing to consider Massey's declaration under the sham affidavit rule. See Lujan, 555 S.W.3d at 91 (holding trial court did not abuse its discretion by disregarding affidavit, submitted by corporation's sole shareholder in support of his opposition to summary judgment in which he stated he never transferred ownership of certain trucks to corporation, as sham affidavit, where tax documents regarding shareholder's transfer of assets to corporation and corporation's tax returns contradicted shareholder's affidavit). Because the trial court did not abuse its discretion in not considering Massey's declaration, the only evidence before it on limitations consisted of Massey's and Dr. Steele's phone records indicating they spoke on July 2, 2016, and the MRO Worksheet confirming that Dr. Steele called Massey on July 2, 2016 to certify the test results, that during the call she asked Massey about the last use of "the drug," his use of prescription drugs or medical conditions, that she made an "affirmative statement of verification," and that she told Massey the information "may be disclosed to your employer" and "could result in your being determined medically unqualified." Massey's deposition testimony that he did not recall the call did not rebut the MRO Worksheet or the phone records. Thus, consistent with Rincones, we conclude Massey's claims accrued on July 2, 2016, when the MRO called him to verify the positive test result. See Rincones, 520 S.W.3d at 592.
2. Preservation of DISA's Sham Affidavit Objection
Massey argues in his reply brief that because DISA did not object to his declaration in the trial court or obtain a ruling, it waived any objection to his declaration. DISA asserts in its sur-reply that it objected to Massey's declaration and the trial court sustained its objection in its summary judgment order.
An objection that an affidavit constitutes a sham affidavit is an attack on the form of the affidavit, and not its substance. Bates v. Pecos Cnty., 546 S.W.3d 277, 285 (Tex. App.-El Paso 2017, no pet.) (noting that objection based on sham affidavit rule is attack on form of affidavit, rather than its substance, such that it must be first addressed by trial court); see also Smiley Dental-Bear Creek, P.L.L.C. v. SMS Fin. LA, L.L.C., No. 01-18-00983-CV, 2020 WL 4758472, at *4 (Tex. App.-Houston [1st Dist.] Aug. 18, 2020, no pet.) (mem. op.) (citing UT Health Sci. Ctr.-Houston. v. Carver, No. 01-16-01010-CV, 2018 WL 1473897, at *5-6 (Tex. App.-Houston [1st Dist.] Mar. 27, 2018, no pet.) (mem. op.) ("Formal defects include objections to hearsay, lack of foundation, lack of personal knowledge, sham affidavit, statement of an interested witness that is not clear, positive direct, or free from contradiction, best evidence, self-serving statements, and unsubstantiated opinions.")); Hogan v. J. Higgins Trucking, Inc., 197 S.W.3d 879, 883 (Tex. App.- Dallas 2006, no pet.) (stating objection based on sham affidavit asserts defect in form). A party must object and obtain a ruling on such an objection to preserve error for defects in form in a summary judgment affidavit. Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.-Dallas 2004, pet. denied). The granting of a summary judgment motion, without more, does not provide an implicit ruling that either sustains or overrules objections to summary judgment evidence. Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex. App.-San Antonio 2000, no pet.).
In its summary judgment reply, DISA argued that "[t]he statute of limitations on Plaintiff's negligence, gross negligence, DTPA, negligent misrepresentation, and tortious interference claims began to run on July 2, 2016, the date the MRO called and told him his test result was positive. The Massey Declaration is a sham and does not create a genuine issue of material fact to dispute this, and DISA objects to it." At the summary judgment hearing, DISA's counsel again objected to Massey's declaration as a sham arguing it contradicted his prior deposition testimony and should be disregarded. DISA thus objected to Massey's declaration.
To preserve error, DISA was also required to obtain a ruling on its objection. Brown, 145 S.W.3d at 751. In support of its assertion that it did so, DISA points to the following language in the trial court's April 1, 2021 order: "The Court, having reviewed DISA's Motion and evidence in support thereof, and any timely-filed response and timely-filed exhibits in support thereof, is of the opinion that DISA's Motion, and all relief requested therein, should be, and hereby is GRANTED in all respects." Although the trial court granted summary judgment, it did not explicitly rule on DISA's objection to Massey's declaration as a sham. Nor did it implicitly rule on the objection by granting the motion. See Well Solutions, 32 S.W.3d at 317 (noting granting of summary judgment alone does not provide implicit ruling that sustains or overrules objections to summary judgment evidence). The trial court's summary judgment order is thus insufficient to preserve error.
After the trial court granted summary judgment in favor of DISA, however, Massey filed a motion for new trial reasserting his argument that DISA had not met its burden to prove his claims were untimely under the applicable statute of limitations. In support of his argument, Massey again offered his declaration and pointed to the statement in his declaration, attached to his motion, that "[he] was 100% certain that the MRO did not tell [him] that he had tested positive for methamphetamine." In its response to Massey's motion, DISA re-urged its sham affidavit objection to Massey's declaration and requested that the court disregard the declaration. During the hearing on Massey's motion for new trial, Massey's counsel also addressed DSI's objection to Massey's declaration arguing the objection should be overruled. After Massey's motion for new trial was initially overruled by operation of law, the trial court denied the motion by written order on July 1, 2021, while it still had plenary power. DISA's renewed sham affidavit objection and the trial court's ruling denying Massey's motion for new trial, including its argument that DISA's sham affidavit objection should be overruled, was sufficient to preserve DISA's objection to Massey's declaration for appellate review. See Tex.R.App.P. 33.1(b); Lissiak v. SW Loan 00, L.P., 499 S.W.3d 481, 488 (Tex. App.-Tyler 2016, no pet.) (concluding defendant adequately preserved for appellate review evidentiary objections to summary judgment affidavits, although summary judgment order did not address defendant's specific objections and stated only that "[a]ll other relief not expressly granted is denied," where defendant filed motion for new trial re-urging objections and motion was denied by operation of law); see also Cooper v. Tex. Dep't of Crim. Justice, No. 12-17-00182-CV, 2018 WL 1940395, at *2 (Tex. App.- Tyler Apr. 25, 2018, no pet.) (mem. op.) (holding although plaintiff did not obtain ruling on his objection that TDCJ presented sham affidavit, he preserved objection where he reasserted his sham affidavit argument in his motion to reconsider which was overruled by operation of law).
We conclude that Massey's claims for negligence, gross negligence, violations of the DTPA, and tortious interference with prospective business relations are barred because he did not file them until July 4, 2018, more than two years after his claims accrued on July 2, 2016. The trial court did not err by granting summary judgment in favor of DISA on Massey's claims. We overrule Massey's fourth issue.
Because we hold the trial court properly granted summary judgment on limitation grounds, we need not address Massey's first through third issues.
Conclusion
We affirm the trial court's judgment.