Philip Hadlock v. Texas Christian University, Mary Volcansek, Sharon Fairchild, Jeffrey Todd, Yumiko Keitges, Jean Knecht, and William Pohl ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-290-CV
PHILIP HADLOCK APPELLANT
V.
TEXAS CHRISTIAN UNIVERSITY, APPELLEES
MARY VOLCANSEK, SHARON
FAIRCHILD, JEFFREY TODD,
YUMIKO KEITGES, JEAN KNECHT,
AND WILLIAM POHL
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FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Philip Hadlock appeals from a summary judgment for Appellees
Texas Christian University (“TCU”), Mary Volcansek, Sharon Fairchild, Jeffrey
Todd, Yumiko Keitges, Jean Knecht, and William Pohl on Hadlock’s defamation
1
… See Tex. R. App. P. 47.4.
claims. Because we hold that Hadlock failed to point out sufficient evidence to
defeat Appellees’ no-evidence motion for summary judgment, we affirm.
Hadlock began working at TCU in 1998 as an instructor of French. He
was appointed to a tenure track position beginning in the fall of 1999. Hadlock
was given a positive performance evaluation for each academic year through
his five-year tenure probationary period. On January 21, 2004, Volcansek,
dean of the college in which Hadlock taught, provided her recommendation to
William Koehler, provost and vice chancellor at TCU, that Hadlock be granted
tenure and a promotion to associate professor.
The modern languages department held a meeting on February 20, 2004,
at which Fairchild, the department chair, discussed the progress the department
was making in its search for a professor of German. The parties dispute what
happened at the meeting, but everyone agrees that Hadlock and his wife, also
an untenured faculty member of the department, objected that they had not
been included in the search process. According to Appellees, Hadlock
expressed his objections vehemently and aggressively and “cast[] suspicion on
the motives” of the search committee and other faculty members. According
to Hadlock, he was not accusatory at the meeting and did not rise out of his
chair or use profanity, but he did become irritated and raise his voice.
2
On February 23, 2004, Fairchild met with Volcansek and described to her
the February 20 meeting. Two days later, on February 25, Fairchild and
tenured faculty members Knecht, Todd, Keitges, and Pohl (“the Faculty”) sent
to Volcansek a letter retracting their recommendation that Hadlock be granted
tenure and stating that they were concerned that Hadlock had violated TCU’s
Statement on Professional Ethics—guidelines applicable to professors and
instructors at the school—by expressing disrespect to colleagues and by
refusing to accept opinions that differed from his own. Volcansek forwarded
this letter to Koehler with a brief note of her own.
On March 8, the Faculty met with Hadlock and, without informing him of
the letters that had been sent to Koehler, told him that the Faculty had serious
concerns about his behavior. Then on March 10, the Faculty gave to Volcansek
another letter regarding Hadlock; this letter was almost identical to the letter of
February 25. Todd authored another letter on March 22 describing behavior by
Hadlock that the Faculty had found to show disrespect for his colleagues.
Volcansek forwarded this letter to Koehler, noting that in light of the allegations
contained within it, she withdrew her recommendation that Hadlock be granted
tenure.
Koehler ultlimately recommended denying tenure to Hadlock, and TCU
gave Hadlock a terminal contract for employment for the 2004–05 academic
3
year. According to Koehler, he recommended denying Hadlock tenure because
enrollment in the French program was so low that an additional tenured
professor would be a waste of resources.
Hadlock filed suit against Appellees for breach of contract and
defamation. The trial court granted partial summary judgment for Appellees on
Hadlock’s breach of contract claim, and he did not appeal from that judgment.
In Hadlock’s defamation claims, he contended that (1) the Facutly had
alleged in writing that Hadlock had engaged in professional misconduct and had
violated recognized standards of professional ethics; (2) Fairchild had made a
number of verbal statements to colleagues at TCU and at other academic
institutions to the effect that Hadlock had engaged in misconduct; and (3)
Volcansek had alleged in writing that Hadlock had demonstrated hostility and
a lack of respect toward his colleagues and that if he were granted tenure he
would hinder development of a community of scholars in the department.
Appellees filed a combined traditional and no-evidence motion for summary
judgment on these claims. The trial court granted the motion without
specifying the ground or grounds on which the motion was granted, and
Hadlock appeals from that judgment.
After an adequate time for discovery, the party without the burden of
proof may, without presenting evidence, move for summary judgment on the
4
ground that there is no evidence to support an essential element of the
nonmovant’s claim or defense.2 The trial court must grant the motion unless
the nonmovant produces summary judgment evidence that raises a genuine
issue of material fact.3 We review the evidence in the light most favorable to
the party against whom the no-evidence summary judgment was rendered.4 If
the nonmovant brings forward more than a scintilla of probative evidence that
raises a genuine issue of material fact, then a no-evidence summary judgment
is not proper. 5
When a party moves for summary judgment under both rules 166a(c) and
166a(i), we will first review the trial court’s judgment under the standards of
rule 166a(i).6 If the appellant failed to produce more than a scintilla of evidence
under that burden, then there is no need to analyze whether the appellee’s
2
… Tex. R. Civ. P. 166a(i).
3
… See Tex. R. Civ. P. 166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73
S.W.3d 211, 215 (Tex. 2002).
4
… King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003),
cert. denied, 541 U.S. 1030 (2004); Johnson v. Brewer & Pritchard, P.C., 73
S.W.3d 193, 197 (Tex. 2002); Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex.
2000).
5
… Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San
Antonio 1998, pet. denied).
6
… Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
5
summary judgment proof satisfied the less stringent rule 166a(c) burden. 7
Hadlock brings a Malooly point on appeal, asserting generally that the trial
court erred by granting summary judgment for Appellees.8 In Hadlock’s
arguments, he first attacks Appellees’ no-evidence summary judgment ground
alleging that there was no evidence of a defamatory communication. He
contends that more than a scintilla of evidence raised a fact issue on this
element.
Because Appellees asserted a no-evidence motion, Hadlock had the
burden to point out evidence in support of the challenged elements in order to
prevent summary judgment.9 Hadlock had to specifically identify the evidence
he wished the trial court to consider; a trial court is not required “to wade
through a voluminous record to marshal a respondent’s proof.” 10 And the
7
… Id.
8
… See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970)
(stating that appellant’s assertion on appeal of a broad point challenging the
summary judgment in its entirety is sufficient to allow argument as to all
possible grounds on which summary judgment should have been denied).
9
… See Tex. R. Civ. P. 166a(i) & cmt.
10
… See DeGrate v. Executive Imprints, Inc., 261 S.W.3d 402, 408 (Tex.
App.—Tyler 2008, no pet.); see also Arredondo v. Rodriguez, 198 S.W.3d 236,
238 (Tex. App—San Antonio 2006, no pet.); Tex. R. Civ. P. 166a(i) & cmt.
(“To defeat a motion made under paragraph (i), . . . [a nonmovant’s] response
need only point out evidence that raises a fact issue on the challenged
elements.”).
6
record in this case was voluminous: Hadlock’s own evidence and the evidence
of Appellees, which he incorporated as summary judgment evidence, consisted
of over 800 pages. Thus, we look to Hadlock’s response to the motion and
determine if he pointed out to the trial court evidence raising a fact issue on
Appellees’ no-evidence grounds.11
A defamatory statement may be made orally or in writing.12 Slander is
“a false oral statement that is published to a third person without a legal
excuse, which refers to an ascertainable person.” 13 Libel is defamation in
written or printed form.14 Not every statement about a person that depicts the
person in a negative light is actionable as libel. “A libel is a defamation . . . that
tends to injure a living person’s reputation and thereby expose the person to
public hatred, contempt or ridicule, or financial injury or to impeach any
person’s honesty, integrity, virtue, or reputation.” 15 A statement “may be false,
abusive, unpleasant, or objectionable to the plaintiff and still not be defamatory
11
… See Tex. R. Civ. P. 166a(i) & cmt.
12
… AccuBanc Mortg. Corp. v. Drummonds, 938 S.W.2d 135, 147 (Tex.
App.—Fort Worth 1996, writ denied).
13
… Id.
14
… Id.; Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (Vernon 2005).
15
… Tex. Civ. Prac. & Rem. Code § 73.001.
7
in light of the surrounding circumstances.” 16 Whether a statement is capable
of a defamatory meaning is a question of law for the court unless the statement
is ambiguous. 17 To be actionable as defamation, a statement must be an
assertion of verifiable fact (that is, a statement that purports to be verifiable);
purely subjective assertions (that is, opinions) that do not imply the existence
of undisclosed facts or do not misconstrue the facts are not actionable as
defamation.18
We have reviewed Hadlock’s response, and regarding his slander claim
against Fairchild, we are unable to find where Hadlock pointed to any specific
spoken statement by Fairchild as defamatory. He alleged that Fairchild told
Punch Shaw, a TCU adjunct professor, that the February 20 meeting was the
16
… Columbia Valley Reg’l Med. Ctr. v. Bannert, 112 S.W.3d 193, 198
(Tex. App.—Corpus Christi 2003, no pet.); see also Turner v. KTRK Television,
Inc., 38 S.W.3d 103, 114 (Tex. 2000) (“[A]n allegedly defamatory publication
should be construed as a whole in light of the surrounding circumstances.”);
Phelan v. Texas Tech Univ., No. 07-07-0171-CV, 2008 WL 190741, at *11
(Tex. App.—Amarillo Jan. 23, 2008, pet. denied) (mem. op.) (holding that,
reading email as a whole in light of surrounding circumstances, indirect
reference to professor as a “creep” and writer’s description of professor’s
behavior as “dysfunctional” were not defamatory).
17
… Turner, 38 S.W.3d at 114.
18
… Bentley v. Bunton, 94 S.W.3d 561, 583–84 (Tex. 2002); Brown v.
Swett & Crawford of Tex., Inc., 178 S.W.3d 373, 382–83 (Tex.
App.—Houston [1st Dist.] 2005, no pet.); see also Thomas-Smith v. Mackin,
238 S.W.3d 503, 507 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
8
turning point on his tenure and that until that meeting everything was fine.
Hadlock did not argue how such a statement was defamatory or even expressly
allege that it was defamatory. And in the excerpt of Shaw’s deposition pointed
out by Hadlock, Shaw only said that he had been given the impression that
Hadlock was close to getting tenure and that he got the impression that
“something turned in that faculty meeting” because he knew that after the
meeting, the department no longer supported Hadlock’s tenure. He stated that
Fairchild “never told [him] the particulars of the faculty meeting.” Thus,
Hadlock failed to point out any evidence of a spoken defamatory
communication by Fairchild to Shaw. 19
Hadlock also stated that in the March 8 meeting, those present “began
confronting [him] with allegations of misconduct.” He failed to allege what
allegations were made or who made them or to point to any evidence of
defamatory statements made by Fairchild at the meeting. Thus, he failed to
present any evidence of slander based on this meeting. Because Hadlock did
not point out any other evidence of slander in his response, the trial court
19
… Brown, 178 S.W.3d at 382–83 (holding that because plaintiff did not
provide any evidence about the substance of the “negative information,”
unflattering emails, and “disparaging things” that he alleged were defamatory,
trial court correctly granted no-evidence summary judgment on defamation
claim based on those statements).
9
correctly granted summary judgment on his slander claim.20
With respect to his libel claim against Appellees, Hadlock referenced in
his response the two letters written by the Faculty and the two letters written
by Volcansek. He stated that the “general tenor” of the letters was that he
acted unethically and was guilty of misconduct and that the letters contained
“numerous” statements that were untrue. But Hadlock specifically pointed out
only a few statements within those writings as being defamatory. We have
considered each statement pointed out by Hadlock and have determined that
the statements are not defamatory.
In his response, Hadlock primarily took issue with Appellees’
characterization of his behavior as hostile or disrespectful. The crux of
Hadlock’s defamation claim was his contention that Appellees had asserted that
he acted unethically and unprofessionally and was guilty of misconduct. He
cited Bentley for the proposition that the Faculty’s opinions were actionable
because they implied the existence of verifiable facts demonstrating unethical
behavior.
What the Faculty essentially said was that they believed his behavior
showed disrespect for the opinions of his colleagues, which in their opinion
20
… See Tex. R. Civ. P. 166a(i).
10
violated TCU’s Statement on Professional Ethics, specifically the provision
stating, “Professors do not discriminate against or harass colleagues. They
respect and defend the free inquiry of associates. In the exchange of criticism
and ideas professors show due respect for the opinions of others.” The Faculty
asserted that they believed Hadlock had violated these criteria “by expressing
disrespect of colleagues and refusing to accept opinions that differ from his
own.”
The Faculty did not express their opinion so as to imply the existence of
facts to back up their opinion; rather, they set out verifiable assertions of fact
and then stated that, from those asserted facts, they formed the opinion that
Hadlock had shown disrespect for his colleagues. Their opinions were purely
subjective assertions.
This case is not like Bentley, where the defendant said, without giving
facts in support of his assertion, that the plaintiff was corrupt and assured his
audience that he had seen evidence to back up his claim, never telling the
audience what the facts were or what acts of the plaintiff constituted corrupt
behavior.21 Unlike the defendant in Bentley, Appellees did not imply the
existence of fact and then fail to disclose them — they did not drop dark hints
21
… Bentley, 94 S.W.3d at 584.
11
about Hadlock's unethical and unprofessional behavior in a way that implied
that they were basing their opinion on verifiable facts. They laid out the
behavior that they considered to be a problem, stated that such behavior was
characteristic of Hadlock’s attitude, and then stated that their ethics rules
required professors to show due respect for the opinions of colleagues and that
they believed his behavior violated that standard. And we note that for the
most part, Hadlock did not dispute the facts Appellees set out in support of
their opinion.22 Hadlock can disagree that it shows a lack of respect for his
colleagues to, for example, raise his voice in a faculty meeting, but they are
entitled to their opinions, and they are also entitled to express those opinions. 23
Appellees’ statements regarding their opinion about Hadlock’s behavior violating
TCU’s policies are not actionable as defamation.
Although Hadlock argued generally that Appellees had defamed him by
accusing him of acting unethically, he did point to a few specific assertions by
Appellees that he contended were defamatory. One such assertion was a
22
… Those facts that he does dispute are discussed below. See infra p.
15.
23
… See Thomas-Smith, 238 S.W.3d at 507; see also Phelan, 2008 WL
190741, at *12 (holding that interdeparmental email statements were not
stigmatizing as a matter of law when terms “creep” and “dysfunctional” were
used in popular rather than clinical sense and Appellant produced no evidence
that statements were stigmatizing other than statements themselves and his
legal conclusion that they were stigmatizing).
12
statement in the March 22 letter that according to Hadlock contended that he
“too aggressively participated in the decision to choose an outside consultant
for the program degree.” The letter actually said that the Faculty, including
Todd, “had felt Hadlock had been unnecessarily acrimonious.” The letter
elaborated that Hadlock was “incensed that the matter had not been debated
and that various candidates had not been considered” and that he reacted
“vociferously” to the announcement that a candidate had been chosen. This
statement does not appear to defame Hadlock; although it is not flattering, it
is not necessarily injurious to his reputation, especially considering that the
letter Hadlock referred to went on to say that Todd felt that Hadlock had a
point and proposed a meeting to discuss the issue and that as a result of the
meeting, the search for a consultant was reopened. Furthermore, Todd did not
appear to be accusing Hadlock of any particular behavior other than expressing
his views in an acrimonious way. Todd’s statement that the Faculty found
Hadlock’s manner of expressing his disagreement to be acrimonious is clearly
a subjective assertion and therefore not actionable.24
Hadlock also objected to Appellees’ statements regarding the February 20
meeting. In two of the letters, the Faculty stated that in the meeting, Hadlock
24
… See Thomas-Smith, 238 S.W.3d at 507 (holding that purely
subjective assertions are not actionable as defamation).
13
“expressed objections in an extremely vehement and aggressive manner,
casting suspicion on the motives of the search committee and other faculty
members.” While not expressly stating in his response that this statement was
defamatory, Hadlock did dispute its accuracy—he stated that he “was not
accusatory of anything” and that he “did not question the motives of the people
at the department meeting,” and he pointed to his deposition testimony to
support his view of events. In that testimony, he denied accusing anyone of
anything at the meeting but admitted that he had become irritated and had
raised his voice. Furthermore, attached to one of the letters that Hadlock
alleged contained defamatory statements was a February 22 email from
Hadlock in which he stated that, with respect to the search for a new German
professor, “I find it neither hostile nor unreasonable for faculty members to raise
questions about this matter, and I wonder about the motivations of anyone who
would try to silence or suppress those questions.” Hadlock acknowledged that
there was a dispute in the meeting, that he expressed dissent, that he became
irritated, and that he raised his voice. Thus, Hadlock did not really dispute the
gist of the Faculty’s factual assertions but rather their characterization of his
expression of disagreement as “vehement” and “aggressive.” But their view
of his behavior was a purely subjective assertion and not actionable as
14
defamation.25
The only purely factual assertion in the letters pointed out by Hadlock in
his response as defamatory were statements that on two occasions, he
slammed a door on a colleague. He contended that these statements were
untrue and defamatory. We disagree that a statement that he slammed doors
rises to the level of defamation, unflattering though it may be. 2 6 This is
particularly true where the rest of the letter contains factual assertions
unchallenged by Hadlock as either untrue or defamatory—such as assertions
that he left meetings in a huff when he disagreed with decisions made in them,
that he sent a colleague an email “wonder[ing] about the motives of anyone
who would try to silence or suppress” his questions about the search for the
German professor, that he sent another email stating that to deny him a voice
in the matter was “a hostile gesture,” and that he sent Fairchild a letter stating
that TCU did not follow the academic tradition of considering dissent and
debate productive. That is, if the other statements were either true or not
defamatory, then an assertion that Hadlock slammed doors could not have
injured his reputation.
25
… See id.
26
… Bentley, 94 S.W.3d at 587 (stating that a defamatory statement is
one that is injurious to reputation).
15
Hadlock did not point out in his response any other specific statements
by Appellees as being defamatory. Because we have held that the statements
that Hadlock did point to as evidence of a defamatory communication were not
defamatory, the trial court did not err by granting a no-evidence summary
judgment on that ground.27 We overrule Hadlock’s issue.
Having overruled Hadlock’s issue, we affirm the trial court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT and MCCOY, JJ.; and DIXON W. HOLMAN, J. (Senior
Justice, Retired, Sitting by Assignment).
DELIVERED: February 26, 2009
27
… See Tex. R. Civ. P. 166a(i).
16