Tracie Jackson v. NAACP Houston Branch and Yolanda Smith ( in Her Official Capacity) and National Association for the Advancement of Colored People D/B/A NAACP ( 2016 )

Affirmed and Memorandum Opinion filed September 15, 2016.
In the
Fourteenth Court of Appeals
NO. 14-15-00507-CV
TRACIE JACKSON, Appellant
V.
NAACP HOUSTON BRANCH, YOLANDA SMITH (IN HER OFFICIAL
CAPACITY), AND NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE D/B/A NAACP, Appellees
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Cause No. 2013-77429
MEMORANDUM OPINION
Appellant Tracie Jackson challenges the trial court’s final summary
judgment in favor of appellees NAACP Houston Branch, Yolanda Smith (in her
official capacity), and the National Association for the Advancement of Colored
People d/b/a NAACP on all of Jackson’s causes of action. Concluding that the
trial court did not err, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The NAACP is a nonprofit association consisting of Units, which include
Branches, formed pursuant to the NAACP’s Constitutions and Bylaws for Units.
The NAACP seeks to enact and enforce state and federal laws designed to protect
the civil rights of American citizens and to secure political, social, and economic
equality. An individual can become a member of the NAACP subject to the
consent of its Board of Directors if she agrees to abide by the NAACP’s rules and
policies and the Board’s decisions, and if she pays her annual dues.
The NAACP Houston Branch is organized pursuant to the NAACP’s
Constitution and Bylaws. The Houston Branch is governed by an Executive
Committee, including a Branch President. The Executive Director is in charge of
the daily operations of the Houston Branch and reports to the Executive
Committee. The Executive Director cannot serve on the Executive Committee.
Yolanda Smith has been the Houston Branch’s Executive Director since
approximately 2000. Tracie Jackson was a member of the NAACP from
September 2010 to the end of October 2011.
In 2006, the NAACP conducted an audit of the Houston Branch covering the
years 2003 through 2005. This audit revealed accounting and recording issues,
problems with soliciting donations and grants, and related-party transactions
involving Smith’s relatives. The Houston Branch responded to this audit; while it
disagreed with certain findings, it agreed to admonish Smith.
In May 2010, Smith hired Jackson as an employment law staff attorney with
the Houston Branch. Jackson’s salary was funded by a Basic Legal Services
(BLS) grant provided by the Texas Access to Justice Foundation (TAJF).
On or about June 14, 2010, Smith informed Jackson and other staff that the
2
Houston Branch could not meet payroll. Jackson and other employees expressed
their concerns about not being paid to Smith and the Executive Committee. On or
about June 29, 2010, the Houston Branch’s Personnel Committee recommended
adopting a new policy regarding grant-funded employees. The new policy was that
such employees would be terminated at the expiration of the grant funding and
they could reapply for their positions when the grant was renewed or a new grant
was received. Jackson received a letter from Smith outlining the policy on July 30.
On August 2, 2010, Jackson called the director of grants for TAJF, Jonathan
Vickery, to inform him of the payroll concerns. When Vickery contacted Smith,
she told Vickery that Jackson was a “problem employee” and “there were morale
problems.” The Executive Committee approved the new policy on August 16,
2010.
On August 31, 2010, Jackson’s employment was terminated due to the
expiration of the BLS grant funding her salary. In November 2010, Jackson
reapplied and interviewed for the employment law staff position, but someone else
was hired instead.
On the night of May 26, 2011, there was an incident at the Houston Branch.
Certain members of the Executive Committee entered Smith’s office while she was
not there. After Smith returned, there was a heated exchange and Smith left the
building with her computer hard drive. Smith was terminated. In June 2011, the
NAACP placed Smith on paid administrative leave pending review and in July
2011 ultimately reinstated Smith as Executive Director. Also in July 2011, the
NAACP suspended the membership of the Houston Branch President and those
Executive Committee members involved in the May 26 incident.
In June 2011, the TAJF suspended the final installment of the Houston
Branch’s 2010-2011 grants based on its opinion that the Houston Branch was in
3
default of the grant agreements. In July 2011, the TAJF board of directors voted
not to fund the Houston Branch’s grant proposals for the next year.
Jackson pursued various proceedings. In November 2010, Jackson filed an
unfair labor practices charge under the National Labor Relations Act (NLRA), 29
U.S.C. § 151 et seq., with the National Labor Relations Board (NLRB). A
complaint issued against the Houston Branch in February 2011, and there was a
hearing before an administrative law judge in May 2011. On July 15, 2011, the
administrative law judge issued its finding that Jackson’s termination and the
Houston Branch’s refusal to rehire her violated section 8(a)(1) of the NLRA and
recommended back pay and reinstatement. On October 12, 2012, the NLRB
ultimately adopted the administrative law judge’s decision and recommended
order.
In July 2011, Jackson sued the NAACP, the Houston Branch, and Smith in
federal district court for: violations of the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. § 1961 et seq.; breach of fiduciary duties;
negligent retention and hiring; tortious interference with contract; and defamation.
Linda Dunson, another grant-funded attorney working at the Houston Branch who
also was terminated and not rehired, and who was one of the suspended Executive
Committee members involved in the May 26 incident, was added as a plaintiff.
The district court dismissed all of their claims with prejudice, and Jackson and
Dunson appealed. The Fifth Circuit Court of Appeals affirmed the dismissal with
regard to the RICO claims but remanded the state-law claims. See Jackson v. Nat’l
Ass’n for the Advancement of Colored People, 546 Fed. Appx. 438, 444 (5th Cir.
2013) (per curiam).
On July 9, 2011, the Houston Chronicle published an article entitled,
“NAACP suspends executive panel here.” Under a subheading entitled, “Lawsuit
4
filed July 1,” the article provided details regarding the allegations contained in
Jackson’s federal lawsuit. In the article, Smith referred to Jackson as a
“disgruntled employee.”
In January 2014, Jackson and Dunson filed suit against the Houston Branch,
Smith, and the NAACP in Harris County district court.1 Dunson settled, and the
trial court granted the parties’ agreed motion to enter a take-nothing judgment on
her claims. At the time of summary judgment, in her third amended complaint,
Jackson alleged claims against the NAACP for breach of contract, breach of
fiduciary duties, fraud, and negligent retention. Jackson alleged claims against the
Houston Branch and Smith for breach of contract, breach of fiduciary duties, fraud,
defamation per se, and failure to allow members to inspect financial records per
section 252.010 of the Texas Business Organizations Code.
The NAACP filed a motion for summary judgment and attached exhibits.2
The NAACP asserted both traditional and no-evidence grounds in its motion. With
regard to all of Jackson’s claims, the NAACP argued that: (1) they are preempted
1
In her brief, Jackson asserts that the federal district court declined to hear the state-law
claims pursuant to supplemental jurisdiction and that Dunson and she filed suit in state court
within 60 days of the district court’s dismissal.
2
The NAACP attached the following documents to its motion: a declaration by Gil Ford,
Sr., a director of Unit administration for the NAACP, dated December 30, 2014; the NAACP’s
Constitution; the NAACP’s Bylaws for Units; documents related to a 2005 audit conducted by
the Texas Workforce Commission; the NAACP’s report on the audit of the Houston Branch
dated May 15, 2006; the Houston Branch’s response to the NAACP’s 2006 audit dated
September 1, 2006; the NLRB’s October 12, 2012 order adopting the administrative law judge’s
decision; the administrative law judge’s July 15, 2011 decision and recommended order; the May
31, 2011 termination letter from the Houston Branch President to Smith; emails dated June 21
and 25, 2010 from Ford to the Houston Branch Executive Committee; the membership
suspension letters dated July 6, 2011 from the NAACP to the Houston Branch President and
other Executive Committee members; the recommendation of the NAACP hearing panel and
letter dated October 19, 2011 from the NAACP to Dunson affirming her suspension; and the
letter dated October 19, 2011 from the NAACP to Smith regarding the dismissal of a formal
complaint against her under article X of the Constitution by members of the Houston Branch.
5
by the NLRA and (2) they are precluded from review based on the doctrine of
judicial nonintervention. With regard to breach of contract, the NAACP argued
that there was no evidence of any breach of an enforceable contract. With regard
to breach of fiduciary duties, the NAACP contended that there was no evidence
that it owed any fiduciary duty to Jackson individually or that Jackson had a
preexisting relationship of trust and confidence with the NAACP prior to her
employment. With regard to fraud, the NAACP argued there was no evidence: of
any actionable, material misrepresentation contained in the Constitution and
Bylaws upon which Jackson could have detrimentally relied; that the NAACP
knew, or was reckless as to whether, its organizational mission and objective were
false; or that the NAACP intended Jackson to act on said falsehoods. With respect
to negligent retention, the NAACP asserted there was no evidence that it owed a
duty to Jackson with respect to Smith. The NAACP also argued that Jackson
would have to establish that Smith committed an actionable tort against Jackson
before the NAACP could be held liable for negligent retention. The NAACP
further argued that even if it did owe Jackson a duty of care as to Smith, there was
no evidence the NAACP breached its duty or that any purported breach was the
proximate cause of Jackson’s damages.
The Houston Branch and Smith also filed a motion for summary judgment
and attached exhibits.3 Like the NAACP, the Houston Branch and Smith argued
that NLRA preemption and judicial nonintervention precluded all of Jackson’s
claims. With regard to breach of contract, the Houston Branch and Smith argued
that there was no evidence of any breach of an enforceable contract. With regard
3
The Houston Branch and Smith attached the following documents to their motion: the
federal magistrate judge’s memorandum, recommendation, and order signed May 18, 2012; the
federal district court’s order of adoption signed June 8, 2012; an affidavit by Smith dated April
10, 2015; the TAJF’s Comparability Strategic Planning Committee Report dated March 18,
2008; and all the exhibits attached to the NAACP’s summary judgment motion.
6
to breach of fiduciary duties, the Houston Branch and Smith maintained that there
was no evidence that either the Houston Branch or Smith was a fiduciary to
Jackson or that any breach of any asserted fiduciary duties proximately caused
Jackson to suffer any compensable damages. With regard to fraud, the Houston
Branch and Smith contended there was no evidence that they misrepresented the
finances of the Houston Branch when hiring Jackson or that they misrepresented
the status of the grant funding Jackson’s employment. With regard to any fraud by
nondisclosure, the Houston Branch and Smith argued that there was no evidence of
a duty to disclose TAJF’s suggested salary ranges based on any confidential or
fiduciary relationship with Jackson. With respect to defamation, the Houston
Branch and Smith asserted that as a matter of law the statements at issue were
expressions of Smith’s personal opinion, not actionable false statements of fact.
They also contended that Smith’s statement that Jackson was “disgruntled” was
true. Finally, with regard to examination of books and records, the Houston
Branch and Smith argued that Jackson did not have standing as a member to assert
such a claim.
Jackson filed her opposition to the NAACP’s and to the Houston Branch and
Smith’s motions and attached exhibits.4 Jackson argued that the defendants did not
4
Jackson attached the following documents to her opposition: Smith’s employment
contract with the Houston Branch dated December 11, 2008; two affidavits by Dunson dated
January 6, 2011, and January 12, 2015; a letter dated June 20, 2011 to the Houston Branch from
the TAJF; an affidavit by Jackson dated January 12, 2015; copies of Dunson’s NAACP
membership cards and an NAACP membership renewal statement for Jackson; excerpts from the
May 12, 2011 hearing before the administrative law judge; a Houston Chronicle article entitled,
“NAACP suspends executive panel here,” dated July 9, 2011; an email dated April 22, 2011
from Smith to legal counsel and the Personnel Committee of the Houston Branch and an email
dated April 23, 2011 from the head of the Personnel Committee to the Houston Branch
President, forwarded to Dunson; an NAACP Chief Operating Officer memorandum dated June
26, 2006 regarding Houston Branch NAACP audit results implementation plan; complaint by
members of the Houston Branch against Smith under article X of the NAACP’s Constitution;
email dated June 25, 2011 from an Executive Committee member to Ford; notice of intent to
appeal membership suspension email dated October 31, 2011; July 20, 2010 email from Dunson
7
prove as a matter of law that all of her claims were preempted by the NLRA or
were barred by judicial nonintervention. Jackson further argued that the summary
judgment evidence established material fact questions on her claims. Specifically,
Jackson contended that the Constitution and Bylaws established the existence of
the contract between the defendants and NAACP members. Jackson argued that
the defendants owed her fiduciary duties as a member based on the Constitution
and Bylaws. Jackson further asserted that the defendants owed members a
fiduciary duty of obedience, loyalty, and care, and provided examples of the
defendants’ breaches. Jackson argued that the NAACP owed her and the public at
large a duty with regard to Smith’s negligent retention and breached that duty by
returning Smith to her position in July 2011. Jackson contended that the NAACP
had prior knowledge of Smith’s fraudulent and negligent activities, which rendered
her an unfit employee and caused the TAJF to suspend and not renew its grants.
Jackson pointed to the NAACP’s 2006 audit and to Smith’s removal of the
Houston Branch’s computer as evidence of Smith’s incompetence and to show that
Jackson’s injury of not being rehired and reinstated was foreseeable. Jackson next
asserted that there was a fact issue regarding whether Smith’s statements to
Vickery and to the Houston Chronicle implied an assertion of fact that is
objectively verifiable and that Smith’s statement to Vickery was false. Finally,
Jackson argued that Smith had a duty to disclose the TAJF grant salary
requirements.
to Smith containing “Summary of Year to Date – IOLTA/BCLS Expenditures” spreadsheet;
Houston Branch Personnel Committee June 29, 2010 meeting minutes; Executive Committee
August 16, 2010 meeting minutes; Fifth Circuit per curiam opinion issued October 8, 2013;
email exchange dated April 15, 2011 between Jackson and Smith regarding financial records
request; excerpt from document alleged to be TAJF’s grant rules and regulations; and letter from
TAJF to NAACP dated July 12, 2011 and email exchange dated July 11 and 12, 2011 between
executive director of TAJF and NAACP’s assistant general counsel. Jackson also incorporated
by reference all of the NAACP’s exhibits and Smith’s affidavit.
8
The trial court held a hearing and granted both motions for summary
judgment dismissing all of Jackson’s claims against the NAACP, the Houston
Branch, and Smith. Jackson timely appealed.
II. ANALYSIS
In her brief, Jackson raises eleven issues.5 However, these issues all
essentially reduce to what Jackson lists as her first issue—whether the trial court
erred in granting the NAACP’s and the Houston Branch and Smith’s motions for
summary judgment.
A. Standard of review
We review the trial court’s grant of summary judgment de novo. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In reviewing either a
no-evidence or traditional summary judgment motion, we must take as true all
evidence favorable to the nonmovant and draw every reasonable inference and
resolve all doubts in favor of the nonmovant. M.D. Anderson Hosp. & Tumor Inst.
v. Willrich, 28 S.W.3d 22, 23–24 (Tex. 2000) (per curiam); Mendoza v. Fiesta
Mart, Inc., 276 S.W.3d 653, 655 (Tex. App.—Houston [14th Dist.] 2008, pet.
denied).
A no-evidence motion for summary judgment is essentially a motion for a
5
Jackson presents the following issues: (1) the trial court committed error in granting the
NAACP’s and the Houston Branch and Smith’s motions for summary judgment pursuant to rule
166a(c) and 166a(i); (2) Jackson presented sufficient evidence to warrant judicial intervention in
this case; (3) Jackson presented sufficient evidence to show that her Texas causes of action are
not preempted; and she presented sufficient evidence to establish material questions of fact that
(4) the Constitution and Bylaws created a contract with members, (5) the Constitution and
Bylaws created an informal fiduciary duty owed to members, (6) all the defendants breached
their fiduciary duties to members, (7) the Houston Branch and Smith defamed Jackson, (8) the
NAACP negligently retained Smith causing harm to Jackson, (9) the Houston Branch and Smith
committed fraud by nondisclosure causing Jackson harm, (10) the Houston Branch and Smith
failed to allow Jackson to inspect the books and documents of the Houston Branch, and (11) the
NAACP unlawfully expelled Houston Branch officers from the membership.
9
pretrial directed verdict. See Tex. R. Civ. P. 166a(i); Timpte Indus., Inc. v. Gish,
286 S.W.3d 306, 310 (Tex. 2009). After an adequate time for discovery, a party
without the burden of proof may, without presenting evidence, seek summary
judgment on the ground that there is no evidence to support one or more essential
elements of the nonmovant’s claim or defense. Tex. R. Civ. P. 166a(i). The
nonmovant is required to present evidence raising a genuine issue of material fact
supporting each element contested in the motion. Id.; Timpte Indus., 286 S.W.3d
at 310.
The party moving for a traditional summary judgment has the burden to
show that no material fact issue exists and that it is entitled to summary judgment
as a matter of law. Tex. R. Civ. P. 166a(c); Willrich, 28 S.W.3d at 23. To be
entitled to traditional summary judgment, a defendant must conclusively negate at
least one essential element of each of the plaintiff’s causes of action or
conclusively establish each element of an affirmative defense. Am. Tobacco Co.,
Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). Evidence is conclusive only if
reasonable people could not differ in their conclusions. City of Keller v. Wilson,
168 S.W.3d 802, 816 (Tex. 2005). Once the defendant produces sufficient
evidence to establish the right to summary judgment, the burden shifts to the
plaintiff to come forward with competent controverting evidence raising a genuine
issue of material fact. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.
1995).
Where, as here, a summary judgment fails to specify the grounds upon
which the trial court relied for its ruling, we must affirm the judgment if any of the
grounds advanced is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.
1989); Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 127 (Tex. App.—
Houston [14th Dist.] 1994, no writ). Also, “when there are multiple grounds for
10
summary judgment and the order does not specify the ground on which the
summary judgment was granted, the appealing party must negate all grounds on
appeal.” State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex. 1993);
see Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). When a
particular summary judgment ground goes unchallenged, we presume the validity
of that ground and affirm the judgment. Wilkinson v. USAA Fed. Sav. Bank Trust
Servs., No. 14-13-00111-CV, 2014 WL 3002400, at *5 (Tex. App.—Houston [14th
Dist.] July 1, 2014, pet. denied) (mem. op.); PAS, Inc. v. Engel, 350 S.W.3d 602,
608 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
We usually address no-evidence grounds first, but need not review them if
we conclude we must affirm the ruling on traditional grounds. McCoy v.
FemPartners, Inc., 484 S.W.3d 201, 205 (Tex. App.—Houston [14th Dist.] 2015,
no pet.).
B. Breach-of-contract claims against the NAACP, the Houston Branch, and
Smith
To recover for breach of contract, a plaintiff must show: (1) the existence of
a valid contract, (2) the plaintiff performed or tendered performance, (3) the
defendant breached the contract, and (4) the plaintiff suffered damages as a result
of the defendant’s breach. Aguiar v. Segal, 167 S.W.3d 443, 450 (Tex. App.—
Houston [14th Dist.] 2005, pet. denied).
In their motions for summary judgment, the NAACP and the Houston
Branch and Smith focused their no-evidence attack on the breach element of
Jackson’s contract claim. However, both in her opposition and on appeal, Jackson
does not address or present evidence of breach and instead only argues that
evidence of language contained in the NAACP’s Constitution and Bylaws shows
those documents established a contract with members. By failing to present any
11
evidence of breach in the trial court or any argument or authority related to such
element on appeal, Jackson did not meet her summary judgment burden and has
waived her contract claims. See Tex. R. Civ. P. 166a(i); McMahan v. Greenwood,
108 S.W.3d 467, 485 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).
Therefore, the trial court did not err in granting summary judgment on Jackson’s
breach-of-contract claims.
C. Breach-of-fiduciary-duty claims against the NAACP, the Houston Branch,
and Smith
The elements of a claim for breach of fiduciary duty are: (1) a fiduciary
relationship between the plaintiff and defendant, (2) a breach by the defendant of
his fiduciary duty to the plaintiff, and (3) an injury to the plaintiff or benefit to the
defendant as a result of the defendant’s breach. Lundy v. Masson, 260 S.W.3d 482,
501 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). The term “fiduciary”
applies to a person who occupies a position of peculiar confidence towards
another. See Lee v. Hasson, 286 S.W.3d 1, 14 (Tex. App,—Houston [14th Dist.]
2007, pet. denied). In certain formal relationships, such as attorney-client,
partnership, or trustee relationships, a fiduciary duty arises as a matter of law.
Meyer v. Cathey, 167 S.W.3d 327, 330–31 (Tex. 2005) (per curiam); Ins. Co. of N.
Am. v. Morris, 981 S.W.2d 667, 674 (Tex. 1998). An informal fiduciary duty may
arise from “a moral, social, domestic or purely personal relationship of trust and
confidence.” Meyer, 167 S.W.3d at 331; see Thigpen v. Locke, 363 S.W.2d 247,
253 (Tex. 1962).
However, an informal fiduciary relationship will not be created lightly.
Meyer, 167 S.W.3d at 331; Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d
171, 177 (Tex. 1997). “It is well settled that ‘not every relationship involving a
high degree of trust and confidence rises to the stature of a fiduciary relationship.’”
12
Meyer, 167 S.W.3d at 330 (quoting Schlumberger Tech., 959 S.W.2d at 176–77).
An informal fiduciary relationship exists where influence has been acquired and
abused, and confidence has been reposed and betrayed. See Lee, 286 S.W.3d at 14;
Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 638 (Tex. App.—
Houston [1st Dist.] 2002, pet. denied). A party claiming the existence of an
informal fiduciary relationship must have been accustomed to being guided by the
judgment or advice of the other. Thigpen, 363 S.W.2d at 253; see also Lee, 286
S.W.3d at 14 (citations omitted). The existence of an informal fiduciary
relationship depends on the “actualities” of the particular relationship. Thigpen,
363 S.W.2d at 253.
When the underlying facts are undisputed, determining whether a fiduciary
duty existed is a question of law. Meyer, 167 S.W.3d at 330. Texas appellate
courts generally uphold the granting of no-evidence summary judgment regarding
the nonexistence of informal fiduciary relationships when the undisputed evidence
shows nothing more than a party’s subjective trust of the other. See, e.g., Garcia v.
Vera, 342 S.W.3d 721, 723–24 (Tex. App.—El Paso 2011, no pet.); Jones v.
Blume, 196 S.W.3d 440, 449 (Tex. App.—Dallas 2006, pet. denied); Prime Prods.,
Inc., 97 S.W.3d at 638.
In their motions for summary judgment, the NAACP, the Houston Branch,
and Smith argued there was no evidence of the existence of the type of relationship
between Jackson and any of them that would give rise to any fiduciary duty.6 In
her opposition and on appeal, Jackson argues that the Constitution, Bylaws,
mission, and purpose of the NAACP establish an informal fiduciary relationship
among the NAACP, the Branches, Smith, and members such as Jackson. Jackson
6
In addition, the Houston Branch and Smith further argued there was no evidence that
any breach of any fiduciary duty proximately caused Jackson to suffer compensable damages.
13
contends that members rely on the Constitution and decisions of the NAACP
officers and trust that those decisions will be carried out for the best interests of the
association. Jackson points to language in the Bylaws stating that Smith as
Executive Director is responsible to the membership and to language in her
employment contract with the Houston Branch establishing her duties to
administer grants and financial policies and describing circumstances resulting in
her termination.
Considering this evidence in the light most favorable to Jackson, it merely
shows generalities regarding the relationships at issue. Jackson failed to submit
any evidence “regarding the actualities” establishing the peculiar trust, influence,
or confidence at issue in her alleged fiduciary relationships with the NAACP, the
Houston Branch, or Smith. See Garcia, 342 S.W.3d at 724 (affirming no-evidence
summary judgment on lack of fiduciary duty where plaintiff provided no examples
of evidence of closeness of relationship, amount of time spent together, any
engagement in prior business or financial transactions together, or previous
reliance on the other party for advice). We conclude that the relationship between
Jackson and the NAACP, the Houston Branch, or Smith based on membership in
the association does not present the type of extraordinary trust-based or
confidential relationship sufficient to give rise to informal fiduciary duties.
Jackson also contends that the NAACP, the Houston Branch, and Smith
breached their formal duties of care, loyalty, and obedience to Jackson as corporate
fiduciaries. Jackson cites Gearhart Industries, Inc. v. Smith International, Inc.,
741 F.2d 707, 719 (5th Cir. 1984), for the proposition that a corporate officer or
board member owes the duty to exercise reasonable care when making decisions as
a steward of the organization. Assuming without deciding solely for purposes of
our analysis that formal fiduciary duties apply in the context of nonprofit
14
associations like the NAACP, such duties generally run to the organization, not to
individual members or even to a majority of the members. See id. at 721–22
(“[T]he directors’ duties of loyalty and care run to the corporation, not to
individual shareholders or even to a majority of the shareholders.”); Hoggett v.
Brown, 971 S.W.2d 472, 488 (Tex. App.—Houston [14th Dist.] 1997, pet. denied)
(“A director’s fiduciary duty runs only to the corporation, not to individual
shareholders or even to a majority of the shareholders.” (citing Gearhart Indus.,
741 F.2d at 721)). Even if Jackson as an individual member could be owed such
formal fiduciary duties, it is an organization’s individual directors who owe such
duties with regard to their directorial actions, not the NAACP or the Houston
Branch as entities. See Somers ex rel. EGL, Inc. v. Crane, 295 S.W.3d 5, 11 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied) (noting that “right to proceed” on
breach-of-fiduciary-duty claim is “against an officer or former officer of a
corporation”). Moreover, considered in the light most favorable to Jackson, the
summary judgment record does not reflect that Smith was ever an officer or board
member of the NAACP or the Houston Branch. See Priddy v. Rawson, 282
S.W.3d 588, 599–600 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). And
“we find no evidence otherwise demonstrating the existence of a formal
relationship upon which to base a fiduciary duty.” See id. at 600.
We conclude there is no evidence that the NAACP, the Houston Branch, or
Smith owed Jackson any fiduciary duty, whether based on an informal or formal
relationship. Therefore, the trial court did not err in granting summary judgment
on Jackson’s breach-of-fiduciary-duty claims.
D. Fraud claims against the NAACP, the Houston Branch, and Smith
The elements of fraud are: (1) that a material representation was made; (2)
the representation was false; (3) when the representation was made, the speaker
15
knew it was false or made it recklessly without any knowledge of the truth and as a
positive assertion; (4) the speaker made the representation with the intent that the
other party should act upon it; (5) the party acted in reliance on the representation;
and (6) the party suffered injury as a result. Italian Cowboy Partners, Ltd. v.
Prudential Ins. Co. of Am., 341 S.W.3d 323, 337 (Tex. 2011). Fraud by
nondisclosure is a subcategory of fraud. Schlumberger Tech., 959 S.W.2d at 181.
The elements of fraud by nondisclosure are: (1) the defendant failed to disclose
facts to the plaintiff; (2) the defendant had a duty to disclose those facts; (3) the
facts were material; (4) the defendant knew the plaintiff was ignorant of the facts
and the plaintiff did not have an equal opportunity to discover the facts; (5) the
defendant was deliberately silent when it had a duty to speak; (6) by failing to
disclose the facts, the defendant intended to induce the plaintiff to take some action
or refrain from acting; (7) the plaintiff relied on the defendant’s nondisclosure; and
(8) the plaintiff was injured as a result of acting without that knowledge. 7979
Airport Garage, L.L.C. v. Dollar Rent A Car Sys., Inc., 245 S.W.3d 488, 507 n.27
(Tex. App.—Houston [14th Dist.] 2007, pet. denied) (citing Bradford v. Vento, 48
S.W.3d 749, 754–55 (Tex. 2001); Schlumberger Tech., 959 S.W.2d at 181).
With regard to the NAACP, Jackson alleged fraud in connection with the
NAACP’s false representations of its mission and purpose. In its motion for
summary judgment, the NAACP argued that there was no evidence of any
actionable material misrepresentation contained in the aspirational language of the
Constitution and Bylaws upon which Jackson could have justifiably relied on to
her detriment; no evidence that the NAACP knew or was reckless as to whether its
mission and purpose were false; and no evidence that it intended Jackson to act on
said falsehoods. The NAACP also challenged Jackson’s failure to provide any
relevant context with regard to the alleged misrepresentations. However, both in
16
her opposition and on appeal, Jackson does not address whatsoever any fraud
allegedly committed by the NAACP. She does not point to any evidence in an
effort to raise a fact issue on material misrepresentation,7 knowledge, or intent. By
failing to present any evidence of the elements of fraud challenged by the NAACP
in the trial court or any argument or authority on appeal, Jackson did not meet her
summary judgment burden and has waived her fraud claim against the NAACP.
See Tex. R. Civ. P. 166a(i); McMahan, 108 S.W.3d at 485; see also Johnson v.
Brewer & Pritchard, P.C., 73 S.W.3d 193, 211 (Tex. 2002) (no-evidence summary
judgment proper where response “was silent” as to reliance element of fraud).
Therefore, the trial court did not err in granting summary judgment on Jackson’s
fraud claim against the NAACP.
With regard to the Houston Branch and Smith, Jackson alleged fraud based
on the Houston Branch and Smith misrepresenting “the financial state of the
Houston Branch when hiring” Jackson and “that employees whose grants expired
and were not renewed had to be laid off.” In their motion for summary judgment,
the Houston Branch and Smith contended there was no evidence that they made
any statements or misrepresentations regarding the Houston Branch’s financial
affairs during Jackson’s interview. The Houston Branch and Smith also argued
there was no evidence that the representation that the grant funding Jackson’s
employment expired on August 31, 2010 was false. Again, both in her opposition
and on appeal, Jackson does not address or point to evidence of any
misrepresentations with regard to the Houston Branch’s financial state or to
support how any representations regarding the expiration or renewal of the TAJF
7
In essence, the NAACP challenged the first two elements of fraud. See Shafaii
Children's Trust & Party & Reception Ctr., Inc. v. W. Am. Ins. Co., 417 S.W.3d 614, 624 (Tex.
App.—Houston [14th Dist.] 2013, pet. denied) (discussing how courts and Pattern Jury Charge
often “group together” first two fraud elements).
17
grant funding Jackson’s position were false. By failing to present any evidence of
these alleged misrepresentations by the Houston Branch and Smith in the trial
court or any argument or authority on appeal, Jackson did not meet her summary
judgment burden and has waived her affirmative fraud claims against the Houston
Branch and Smith. See Tex. R. Civ. P. 166a(i); Johnson, 73 S.W.3d at 211;
McMahan, 108 S.W.3d at 485.
Jackson also alleged that the Houston Branch and Smith “fraudulently paid
Jackson the incorrect salary based on her years of experience.” With regard to
Jackson’s allegation of fraudulent underpayment, construed as a claim for fraud by
nondisclosure, the Houston Branch and Smith argued that the TAJF grant study
merely suggested and did not require any particular salary ranges for attorneys.
The Houston Branch and Smith also asserted there was no evidence that they had
any duty to disclose such information.
In her opposition and on appeal, Jackson points to evidence that Smith
offered Jackson a staff attorney salary of $55,000 despite her approximately 15
years of experience. Jackson also proffers an undated document she describes as
“TAJF’s grant rules and regulations” to support that she should have been offered a
salary of $82,500. At most, even construing the evidence in the light most
favorable to Jackson, the TAJF’s “grant rules and regulations” by their plain
language identify “benchmarks” for attorney salaries at various experience levels.8
Even assuming without deciding solely for purposes of our analysis that the
TAJF’s recommended attorney salary range was a material fact the Houston
Branch and Smith failed to disclose to Jackson, we conclude Jackson has not raised
8
The summary judgment record also contains a TAJF Comparability Strategic Planning
Committee Report dated March 18, 2008, which recommends setting aside funding in an attempt
to increase salaries to attorneys and identifies “a benchmark for competitive salaries for
attorneys.”
18
a fact issue regarding any duty to disclose such fact. As a general rule, a failure to
disclose information does not constitute fraud unless there is a duty to disclose the
information. Bradford, 48 S.W.3d at 755 (citing Morris, 981 S.W.2d at 674).
Silence only may be equivalent to a false representation when the particular
circumstances impose a duty on the party to speak and she deliberately remains
silent. Id. We already have determined that Jackson did not raise a fact issue as to
any fiduciary relationship between the Houston Branch or Smith and herself. See
Morris, 981 S.W.2d at 674 (“Generally, no duty of disclosure arises without
evidence of a confidential or fiduciary relationship.”).
Nevertheless, Jackson contends that showing a fiduciary relationship is not
necessary. Although the Texas Supreme Court has not adopted any such general
duty to disclose facts in a business or commercial setting,9 our court recognizes
that a duty to disclose may arise: when one party voluntarily discloses information,
which gives rise to the duty to disclose the whole truth; when one party makes a
representation, which gives rise to the duty to disclose new information that the
party is aware makes the earlier representation misleading or untrue; or when one
party makes a partial disclosure and conveys a false impression, which gives rise to
the duty to speak. See Solutioneers Consulting, Ltd. v. Gulf Greyhound Partners,
Ltd., 237 S.W.3d 379, 385 (Tex. App.—Houston [14th Dist.] 2007, no pet.). But
Jackson has failed to point to the existence of any particular facts or circumstances
that might support imposition of such a duty here. Jackson has not explained what
information the Houston Branch or Smith voluntarily disclosed such that there
arose a duty to tell the whole truth, what earlier representation of the Houston
Branch or Smith to Jackson was made misleading or untrue by new information, or
what partial disclosure by the Houston Branch or Smith left Jackson with what
9
Bradford, 48 S.W.3d at 755–56 (citing The Restatement (Second) of Torts § 551
(1977)).
19
false impression. For example, there is no evidence that the Houston Branch or
Smith made any particular assurances with regard to the competitiveness of
Smith’s salary. There is no evidence that the Houston Branch or Smith voluntarily
provided Jackson with any details about the particular BLS grant funding her
salary or any TAJF grant for that matter. Nor did Jackson provide any evidence
that she was left with a false impression by any partial disclosure of the Houston
Branch or Smith with regard to her salary, much less one that “hindered Jackson’s
wage earning capacity.” Cf. Columbia/HCA Healthcare Corp. v. Cottey, 72
S.W.3d 735, 744–45 (Tex. App.—Waco 2002, no pet.) (fact issue existed on duty
to disclose for fraud by nondisclosure where former employee was specifically told
when hired that “he would participate in the Top Hat Plan and his interest would
vest in six years” and defendants “made only a partial disclosure about the plan
because they did not tell [him] about the rescission provision” that “conveyed a
false impression to [him] about his financial future if he accepted the position”).
We conclude there is no evidence that the Houston Branch and Smith owed
Jackson a duty to disclose the attorney salary range recommended by the TAJF.
Therefore, the trial court did not err in granting summary judgment on Jackson’s
fraud claims against the Houston Branch and Smith.
E. Negligent-retention claim against the NAACP
While Texas Supreme Court has not “ruled definitively on the existence,
elements, and scope” of negligent hiring, retention, and supervision claims, Waffle
House, Inc. v. Williams, 313 S.W.3d 796, 804 n.27 (Tex. 2010), it has indicated
that, to recover on these theories, a plaintiff must show not just negligent hiring
practices, but rather harm caused by the employee’s misconduct. See Wansey v.
Hole, 379 S.W.3d 246, 247 (Tex. 2012) (per curiam). This court has held that
negligent hiring, retention, and supervision claims are all simple negligence causes
20
of action based on an employer’s direct negligence rather than on vicarious
liability. See Verinakis v. Med. Profiles, Inc., 987 S.W.2d 90, 97 (Tex. App.—
Houston [14th Dist.] 1998, pet. denied). As with any negligence case, the plaintiff
must prove the existence of circumstances giving rise to a legal duty owed by the
defendant to the plaintiff, a breach of that duty, and damages proximately caused
by that breach. See IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143
S.W.3d 794, 798 (Tex. 2004); Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778,
782 (Tex. 2001). The components of proximate cause are cause in fact and
foreseeability. Knight v. City Streets, L.L.C., 167 S.W.3d 580, 584 (Tex. App.—
Houston [14th Dist.] 2005, no pet.) (citing Doe v. Boys Club of Greater Dallas,
Inc., 907 S.W.2d 472, 477 (Tex. 1995)).
In its motion for summary judgment, the NAACP argued, assuming a
negligent-retention cause of action exists, that there was no evidence the NAACP
owed any duty to Jackson with respect to Smith. The NAACP further maintained
there was no evidence of the elements of breach and proximate cause. In her
opposition and on appeal, Jackson argues that the NAACP owed Jackson a “duty
of protection against Smith” because “an employer owes the duty to fellow
employees and to the public at large.” Jackson also contends the NAACP had a
fiduciary duty to her “as a member and an employee.” Jackson argues that the
NAACP breached its duties to Jackson by reinstating or failing to terminate Smith.
To prove that Smith was unfit and incompetent and the NAACP had prior
knowledge of Smith’s fraudulent and negligent activities, Jackson points to the
NAACP’s 2006 audit, its 2006 audit results implementation plan recommending
Smith be asked to resign, Smith’s termination for theft of Houston Branch
property, and the TAJF’s suspension and nonrenewal of its grants to the NAACP.
Duty is the threshold inquiry and is a question of law for the court to decide
21
based upon facts surrounding the occurrence in question. Greater Houston Transp.
Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). With regard to duty, the general
rule is that there is no duty to protect another from the conduct of a third person
unless a special relationship exists between the party and the third person that
imposes a duty upon the party to control the third person’s conduct. See id.;
Verinakis, 987 S.W.2d at 97. One such special relationship is that between
employer and employee. Verinakis, 987 S.W.2d at 97 (citing Greater Houston
Transp., 801 S.W.2d at 525). There are other situations where a special
relationship exists that enlarges the duties of a party, such as “where there is a
reasonable foreseeability of injury” involving “potential contact with particularly
vulnerable individuals.” See Wise v. Complete Staffing Servs., Inc., 56 S.W.3d
900, 904 (Tex. App.—Texarkana 2001, no pet.); Guidry v. Nat’l Freight, Inc., 944
S.W.2d 807, 810 (Tex. App.—Austin 1997, no writ) (“The heightened obligation
in these cases, however, is predicated upon the entity’s placing the tortfeasor into a
special relationship of trust with a vulnerable group: a scoutmaster with young
boys, a drug counselor with the family of a recovering addict, a nursing assistant
with the elderly and infirm.”).
We already have determined that Jackson has not raised a fact issue with
regard to the existence of any fiduciary or confidential relationship among the
NAACP, the Houston Branch, Smith, and herself. Jackson does not otherwise
explain how, or provide any evidence that, she qualifies as a particularly
vulnerable individual. In its summary judgment motion, the NAACP pointed out
that Smith was hired and employed by the Houston Branch, not by the NAACP. In
other words, the NAACP would not have any enlarged duty to Jackson or the
general public based on an employer-employee relationship with Smith. However,
we assume without deciding solely for purposes of our analysis that the evidence
22
raises a fact issue on whether the NAACP was Smith’s employer or had a right to
exercise control over her under a theory of negligent retention. The issue therefore
is whether the circumstances presented raise a fact issue as to whether the NAACP
owed a duty to Jackson to protect her from the conduct of its employee Smith.
Under the theory of negligent hiring, retention, or supervision, “an employer
who negligently hires an incompetent or unfit individual may be directly liable to a
third party whose injury was proximately caused by the employee’s negligent or
intentional act.” Verinakis, 987 S.W.3d at 97. However, under such negligent-
retention theory, “an employer’s duty extends only to prevent the employee from
causing physical harm to a third party.” McClure v. Kingwood Pines Hosp.,
L.L.C., No. 14-09-00339-CV, 2010 WL 3583193, at *2 (Tex. App.—Houston
[14th Dist.] Sept. 16, 2010, pet. denied) (mem. op.) (emphasis in orig.) (citing
Verinakis, 987 S.W.3d at 97–98) (“[T]he duty of the employer or contractee
extends only to prevent the employee or independent contractor from causing
physical harm to a third party.”)); see Latimer v. Mem’l Hermann Hosp. Sys., No.
14-09-00925-CV, 2011 WL 175504, at *3 (Tex. App.—Houston [14th Dist.] Jan.
20, 2011, no pet.) (mem. op.); Doege v. Sid Peterson Mem’l Hosp., No. 04–04–
00570–CV, 2005 WL 1521193, at *7 (Tex. App.—San Antonio June 29, 2005, pet.
denied) (mem. op.); Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 496 (Tex.
App.—Fort Worth 2002, no pet.); Sibley v. Kaiser Found. Health Plan of Tex., 998
S.W.2d 399, 403–04 (Tex. App.—Texarkana 1999, no pet.); accord Clark v. PFPP
Ltd. P’ship, 455 S.W.3d 283, 289–90 & n.8 (Tex. App.—Dallas 2015, no pet.)
(economic loss rule barred individual plaintiff from recovering purely economic
harm based on negligent hiring, supervision, and retention claim). Jackson did not
allege or present any evidence indicating that the NAACP owed a duty to protect
her against physical harm from Smith. Rather, Jackson described her injury as
23
“not being hired and not being reinstated.”
Moreover, even if any such duty existed,10 the NAACP additionally argued
Jackson would have to establish that Smith committed an actionable tort against
her before the NAACP could be held liable based on a negligent-retention cause of
action. See Gonzales v. Willis, 995 S.W.2d 729, 739–40 (Tex. App.—San Antonio
1999, no pet.), overruled in part on other grounds by Hoffmann–La Roche Inc. v.
Zeltwanger, 144 S.W.3d 438, 447–48 (Tex. 2004). Ultimately, we determine that
none of Jackson’s claims, including all of her tort claims against Smith, survives
summary judgment. Under these circumstances, there is no separate actionable tort
to support the negligent-retention claim against the NAACP. See Latimer, 2011
WL 175504, at *3 (affirming grant of traditional summary judgment on negligent-
supervision claim where court affirmed summary judgment against plaintiff on all
torts allegedly committed by employee (citing Brown v. Swett & Crawford of Tex.,
Inc., 178 S.W.3d 373, 384 (Tex. App.—Houston [1st Dist.] 2005, no pet.))); see
also Brown, 178 S.W.3d at 384 (“To prevail on a claim for negligent hiring or
supervision, the plaintiff is required to establish not only that the employer was
negligent in hiring or supervising the employee, but also that the employee
committed an actionable tort against the plaintiff.”); accord McClure, 2010 WL
3583193, at *2 n.7 (“Other courts have indicated that a negligent hiring or
supervision claim may be permissible if the employee commits an actionable tort
causing a ‘legally compensable injury.’” (citing Gonzales, 995 S.W.2d at 739–40,
10
In a recent case involving a traditional summary judgment, our court recognized a fact
issue on duty where a company brought a claim for negligent retention against a staffing agency
that had an agreement with the company to place agency employees at the company. The
circumstances indicated that the agency failed to inform the company after it learned about its
employee’s criminal history of theft and the employee later embezzled $15 million from the
company while working in the accounting department. See Davis-Lynch, Inc. v. Asgard Techs.,
LLC, 472 S.W.3d 50, 67 (Tex. App.—Houston [14th Dist.] 2015, no pet.). In such case, the
court did not cite or discuss Verinakis’s physical harm requirement or McClure, presumably
because the company plaintiff could not bring such claim for bodily injury.
24
and Brown, 178 S.W.3d at 384)).
We conclude there is no evidence that the NAACP owed a duty to Jackson
related to Smith. In any event, we further conclude that the NAACP conclusively
established that no separate actionable tort against Smith exists to support a
negligent-retention claim. Therefore, the trial court did not err in granting
summary judgment against Jackson on her negligent-retention claim against the
NAACP.
F. Defamation per se claims against the Houston Branch and Smith
To maintain a defamation action, a plaintiff must prove that the defendant:
(1) published a statement of fact; (2) that was defamatory concerning the plaintiff;
(3) while acting with actual malice if the plaintiff was a public official or public
figure, or while acting with negligence if the plaintiff was a private individual,
regarding the truth of the statement. WFAA–TV, Inc. v. McLemore, 978 S.W.2d
568, 571 (Tex. 1998). Defamation per se refers to statements that are so obviously
harmful to a person’s reputation that general damages may be presumed. See
Hancock v. Variyam, 400 S.W.3d 59, 63–64 (Tex. 2013). To be actionable, a
statement must expressly or impliedly assert an objectively verifiable fact. See
Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990); Bentley v. Bunton, 94
S.W.3d 561, 580–81 (Tex. 2002). Whether a publication is an actionable statement
of fact is a question of law. See Bentley, 94 S.W.3d at 580. To make this
determination, we consider the verifiability of the statement and the entire context
in which the statement was made. Id. at 581, 583. Whether a publication is
actionable depends on a reasonable person’s perception, not on the perception of
the plaintiff, of the entirety of the publication and not merely individual statements.
See id. at 579; see also Musser v. Smith Protective Servs., Inc., 723 S.W.2d 653,
654–55 (Tex. 1987) (we construe the statement as a whole in light of surrounding
25
circumstances, based upon how person of ordinary intelligence would perceive the
entire statement).
In their motion for summary judgment, the Houston Branch and Smith
argued, even assuming they made statements that Jackson “was a problem
employee who caused morale problems” and that she was a “disgruntled
employee,” neither statement presents an actionable false statement of fact as a
matter of law.11 They contended that both statements alleged to have been made
by Smith are simply expressions of opinion protected by the First Amendment and
by article I, section 8, of the Texas Constitution and therefore not actionable. In
particular, the Houston Branch and Smith pointed to cases where negative general
statements about a person’s work performance were found to not be actionable.
For example, in Brown v. Swett & Crawford of Texas, the First Court of Appeals
concluded that the statement that an employee was a “walking E & O” clearly
expressed the speaker’s opinion that the employee was likely to perform his work
in such a manner that the employer’s errors and omissions insurer would be
required to provide coverage when he made a mistake. 178 S.W.3d at 383. The
Brown court also concluded that there were “no implied, but verifiable, facts” in
such statement. Id. Therefore, the statement was not actionable. Id.; see
Associated Press v. Cook, 17S.W.3d 447, 454 (Tex. App.—Houston [1st Dist.]
2000, no pet.) (statements that plaintiff officer was “a blight on law enforcement”
and that he “has caused unbelievable problems” were assertions of protected
opinion and not actionable statements of fact).
Similarly, we conclude that Smith’s statement that Jackson was a “problem
employee” who “was causing morale problems,” while certainly objectionable to
11
Additionally, the Houston Branch and Smith argued that Smith’s “disgruntled
employee” statement was plainly true.
26
Jackson, falls into the category of protected opinion. Considering the evidence in
the light most favorable to Jackson, Smith’s comment implied, and Vickery in fact
took Smith to mean, that Jackson was an employee who was difficult to deal with
and was causing morale problems. Smith’s statement implied that Jackson was
performing at work in such a way that she was having an adverse effect on her
coworkers. However, a statement implying that an employee is incompetent in
some way at her job is not a statement of fact, but rather a nonactionable opinion.
See Robertson v. Sw. Bell Yellow Pages, Inc., 190 S.W.3d 899, 903 (Tex. App.—
Dallas 2006, no pet.) (statement that coworker did not want to interact with people
“like” plaintiff on the “third floor” and would “run” if he had to take anything
down there implied incompetence but was not actionable statement of fact (citing
Brown, 138 S.W.3d at 383)). Nor did Smith’s “general criticism” of Jackson as
such a “problem employee” “causing morale problems” indicate any objectively
verifiable details that would give rise to an actionable statement of fact. See id.;
see also Transp. Care Servs. Corp. v. Shaw, No. 02–12–00334–CV, 2013 WL
5433991, at *3 (Tex. App.—Fort Worth Sept. 26, 2013, no pet.) (mem. op.)
(“There's a lot that y’all don't know” did not imply undisclosed facts); Cook, 17
S.W.3d at 454 (statement that plaintiff officer’s departure from law enforcement
“was a culmination of a lot of things, things too numerous to discuss” was
assertion of protected opinion).
Nevertheless, Jackson asserts, in context, Smith’s statement clearly implies
an assertion of fact concerning Jackson that is objectively verifiable. However, the
entire context and surrounding circumstances indicate otherwise. Smith directed
this particular comment to Vickery, who had called Smith to discuss grant
concerns expressed to him by Jackson. Vickery clearly had experience in making
such calls and, as a former executive director of a nonprofit, understood that such
27
situations can involve “tension between executive director and employees or
management and staff.” Most of the discussion involved the status of the grant
funds as Smith attempted to allay any concerns. Moreover, there was no
“elaboration” on Smith’s statement and Jackson has not provided any further
explanation of the “morale problems.” See Transp. Care, 2013 WL 5433991, at
*3. Under these circumstances, based upon a reasonable person’s perception of the
publication as a whole, Smith’s statement to Vickery is not actionable.
Next, we consider the statement by Smith as quoted in the July 2011
Houston Chronicle article—that Jackson was a “disgruntled employee.” Like
Smith’s statement that Jackson was a “problem employee” who caused morale
problems, Smith’s “disgruntled employee” comment amounted to her protected
expression of opinion regarding Jackson’s discontented attitude in connection with
her employment. See Robertson, 190 S.W.3d at 903; Brown, 178 S.W.3d at 383;
Cook, 17 S.W.3d at 454. Moreover, Smith’s description of Jackson as a
“disgruntled employee” involved general criticism not linked to any objectively
verifiable details. See Shaw, 2013 WL 5433991, at *3; Robertson, 190 S.W.3d at
903; Cook, 17 S.W.3d at 454.
Jackson emphasizes that the timing of Smith’s “disgruntled employee”
comment is “critical” to our analysis. The context and surrounding circumstances
of the statement indicate that Smith was responding to a request for comment about
Jackson’s having filed her lawsuit against Smith, the NAACP, and the Houston
Branch in federal court. The news article provided details of recent events
involving Smith, as well as various of the allegations levied against Smith in
Jackson’s lawsuit. Under these circumstances and considering the whole
publication, Smith’s “disgruntled employee” comment represented her purely
subjective assessment of Jackson, not susceptible of being proven objectively true
28
or false. Nor did Smith’s assertion imply the existence of undisclosed facts or
misconstrue the facts. See Bentley, 94 S.W.3d at 583–84. Indeed, the context here
instead reinforced the reasonable reader’s ability to evaluate all the facts as
provided in the news article and either accept or reject Smith’s opinion of Jackson
as a “disgruntled employee.” See Brewer v. Capital Cities/ABC, Inc., 986 S.W.2d
636, 643 (Tex. App.—Fort Worth 1999, no pet.) (statements in “20/20” news
report program that plaintiffs—nursing home owners—were responsible for patient
abuse and had engaged in “profiteering,” based on context and viewed in light of
entirety of report, were protected opinions that would not support defamation
action).
Therefore, we conclude that the two opinions expressed by Smith and
complained of by Jackson are not actionable as defamatory statements as a matter
of law. Because the Houston Branch and Smith conclusively negated, and Jackson
did not otherwise raise a fact issue on, an essential element of Jackson’s
defamation per se claims, we conclude that the trial court did not err by granting
their motion for summary judgment.12
G. Access to record and books claim against the Houston Branch and Smith
Jackson alleged that the Houston Branch and Smith were liable for failing to
adhere to section 252.010 of the Texas Business Organizations Code in not
allowing members to inspect the financial records of the Houston Branch. See
Tex. Bus. Org. Code § 252.010 (West 2012). In their motion for summary
judgment, the Houston Branch and Smith argued that Jackson did not have
standing to assert such a claim because she was no longer a member of the
12
We need not reach the Houston Branch and Smith’s argument that they conclusively
established the truth of Smith’s “disgruntled employee” statement. See Tex. R. App. P. 47.1;
Huckabee v. Time Warner Entm’t Co. L.P., 19 S.W.3d 413, 429 (Tex. 2000).
29
NAACP or, as a corollary, the Houston Branch.
Section 252.010 expressly provides that nonprofit associations “shall keep
correct and complete books and records of account for at least three years after the
end of each fiscal year and shall make the books and records available on request
to members of the association for inspection and copying.” Id. § 252.010(a).
Assuming without deciding solely for purposes of our analysis that section 252.010
provides for and confers standing to pursue this cause of action, a plaintiff would
need to be a “member of the association” to properly bring and maintain a claim.
See id.; In Interest of K.S., No. 14-15-00008-CV, 2016 WL 1660366, at *3 (Tex.
App.—Houston [14th Dist.] Apr. 26, 2016, pet. denied) (mem. op.) (“When
standing is conferred by statute, we use that statutory framework to analyze
whether the petition has been filed by a proper party.”).
Standing is determined as of the time that suit was filed in the trial court.
See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 n.9 (Tex.
1993); In re Vogel, 261 S.W.3d 917, 921 (Tex. App.—Houston [14th Dist.] 2008,
no pet.). Considering the evidence in the light most favorable to Jackson, she
became a member of the NAACP in September 2010. Jackson was a member in
April 2011 when she sent her email to Smith requesting access to the Houston
Branch’s financial audits. The last day Jackson that was a member of the NAACP
was October 31, 2011. However, Jackson did not file her claim pursuant to section
252.010 against the Houston Branch and Smith until January 15, 2014, long after
Jackson’s membership lapsed. We agree with the trial court that the Houston
Branch and Smith conclusively established that Jackson did not have standing to
bring this claim. Therefore, we conclude that the trial court did not err in granting
summary judgment against Jackson on her claim pursuant to section 252.010
against the Houston Branch and Smith.
30
We overrule Jackson’s first, and fourth through eleventh issues.13
III. CONCLUSION
Having concluded that the trial court properly could grant summary
judgment as to each of Jackson’s claims against the NAACP, the Houston Branch,
and Smith, we affirm the trial court’s final summary judgment.
/s/ Marc W. Brown
Justice
Panel consists of Justices Jamison, Donovan, and Brown.
13
Because we have otherwise affirmed summary judgment as to each of Jackson’s
claims, we need not address her second and third issues relating to a lack of preemption under
the NLRA and judicial intervention. See Tex. R. App. P. 47.1. Further, with regard to Jackson’s
eleventh issue, in her brief she only discusses expulsion of the Houston Branch officers in
conjunction with her judicial intervention issue. Therefore, we overrule such issue.
31