James D. Scudday v. Austin King, Tierra Linda Ranch Homeowners Association, Jerry Adams, Bob Dockey, Mary La France, Tammy Haney, Denise Chambers and Dimas Lopez

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-20-00562-CV
James D. SCUDDAY,
Appellant
v.
Austin KING, Tierra Linda Ranch Homeowners Association, Jerry Adams, Bob Dockey, Mary
LaFrance, Tammy Haney, Denise Chambers and Dimas Lopez,
Appellees
From the 216th Judicial District Court, Gillespie County, Texas
Trial Court No. 14446
Honorable Albert D. Pattillo, III, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Luz Elena D. Chapa, Justice (not participating)
Beth Watkins, Justice
Delivered and Filed: June 22, 2022
AFFIRMED
Appellant James D. Scudday appeals the trial court’s orders granting summary judgment
in favor of appellees Austin King, Tierra Linda Ranch Homeowners Association (“the HOA”),
Jerry Adams, Bob Dockey, Mary LaFrance, Tammy Haney, Denise Chambers, and Dimas Lopez
and denying Scudday’s competing motions for summary judgment. We affirm the trial court’s
orders.
04-20-00562-CV
BACKGROUND
The HOA is a nonprofit corporation that maintains the common areas of Tierra Linda
Ranch, a residential community in Gillespie County. In 2012, the HOA hired Scudday to work as
a ranch manager. Haney, Chambers, and Lopez also worked for the HOA, and Scudday was their
supervisor. King, Adams, Dockey, and LaFrance were homeowners in Tierra Linda Ranch and
members of the HOA.
Adams joined the HOA’s board of directors in January of 2015. Shortly after he assumed
his duties, both Chambers and Haney approached him “with allegations of sexual harassment and
a hostile work environment caused by Scudday.” Adams told King and Dockey, who were also
board members at that time, about these allegations. Adams, King, and Dockey discussed “the
possible need for an investigator to look into” the issue.
Chambers approached Adams again with similar allegations “[i]n the first part of April”
2015. Around the same time, LaFrance also contacted Adams and reported that Chambers had
made the same allegations to her. When Adams told LaFrance that he was considering hiring an
outside investigator to interview Chambers, Haney, and Lopez, LaFrance offered to perform those
interviews herself. After Adams agreed to LaFrance’s offer, LaFrance interviewed Haney,
Chambers, and Lopez about Scudday’s workplace behavior and prepared written statements (“the
LaFrance statements”) based on those interviews. The LaFrance statements indicated that Scudday
had made sexual comments to both Chambers and Haney and had showed them a video of baboons
having sex. Chambers, Haney, and Lopez later signed affidavits stating that, apart from corrections
not relevant here, the statements accurately reflected what they had told LaFrance. On April 25,
2015, Adams again met with King and Dockey to discuss the allegations against Scudday.
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On April 27, 2015, Adams presented the LaFrance statements to the entire HOA board, 1
which at that time consisted of King, Adams, Dockey, and Marcia Barrett. The HOA’s attorney,
who also attended the meeting, told the board members that the conduct described in the LaFrance
statements constituted sexual harassment. During that meeting, the HOA board voted unanimously
to fire Scudday.
After the HOA fired him, Scudday sought unemployment benefits. The Texas Workforce
Commission initially denied his claim, and Scudday appealed. The TWC appeals tribunal’s
findings and conclusions noted the HOA “discharged [Scudday] because it determined that he
sexually harassed two female employees under his supervision.” However, because the HOA did
not have a sexual harassment policy “notifying employees including [Scudday] as to what type of
behavior was prohibited or considered to be sexual harassment,” the TWC determined Scudday
“was not made aware that his behavior could jeopardize his job.” Based on this finding, the TWC
determined that Scudday’s “actions did not constitute misconduct connected with the work,” and
it reversed its denial of his claim for unemployment benefits.
In 2016, Scudday sued the HOA, King, Adams, Chambers, Haney, Lopez, and LaFrance
for tortious interference with employer-employee relationship, defamation per se, breach of
contract, and invasion of privacy. He also sought a declaration “that he has not sexually harassed
any employee of Tierra Linda Ranch [and] has not committed the offense of sexual harassment.”
On October 23, 2019, Scudday filed a supplemental petition that added Dockey as a defendant and
asserted that King, Adams, and Dockey had committed ultra vires acts and fraudulently concealed
Dockey’s participation in the events leading up to Scudday’s termination. Appellees asserted
several affirmative defenses to Scudday’s claims, including contentions that Scudday’s claims
1
When Adams presented the LaFrance statements to the board, they were unsigned, and Chambers, Haney, and Lopez
had not yet executed their affidavits adopting the statements.
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against Dockey were barred by limitations; that King, Adams, Dockey, and LaFrance were entitled
to volunteer immunity; and that the individual defendants were entitled to absolute and/or qualified
immunity.
Appellees sought traditional and no-evidence summary judgment on each of Scudday’s
claims and some of their own affirmative defenses. Scudday sought traditional summary judgment
on his claim for declaratory judgment and traditional and no-evidence summary judgment on
LaFrance’s defense of volunteer immunity. He also asked the trial court to take judicial notice of
several issues.
On August 10 and 11, 2020, the trial court signed orders granting appellees’ motions for
summary judgment, denying Scudday’s motions, and denying Scudday’s judicial notice requests.
In the order granting appellees’ motion for summary judgment on Scudday’s declaratory judgment
claim, the trial court awarded appellees attorney’s fees “in an amount to be determined at a later
hearing.” After Scudday moved to strike the award of attorney’s fees, appellees nonsuited their fee
claim. The trial court signed an order granting appellees’ nonsuit “without prejudice” and
specifying, “Following the Court’s previous summary judgments, this Notice of Non-Suit Without
Prejudice is a final order for the purposes of appeal.” Scudday timely filed this appeal.
ANALYSIS
In seven issues that we construe as three, Scudday argues the trial court erred by granting
summary judgment for appellees and denying his competing motions, permitting appellees to
nonsuit their claim for attorney’s fees, and overruling his evidentiary objections.
Evidentiary Issues
In his sixth issue, Scudday argues the trial court abused its discretion by overruling his
objections to appellees’ summary judgment evidence. Because this issue will affect our analysis
of the summary judgment record, we address it first. See Hilderbran v. Tex. Sw. Council, Inc., Boy
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Scouts of Am., No. 04-20-00112-CV, 2021 WL 2211353, at *4 (Tex. App.—San Antonio June 2,
2021, no pet.) (mem. op.). We may not reverse a judgment based on an evidentiary ruling unless
the ruling was an abuse of discretion that probably caused the rendition of an improper judgment.
Id.While Scudday contends he “detailed his objections with clarity” below, his appellate brief
does not identify either the challenged evidence or the objections he raised to that evidence. See
TEX. R. APP. P. 38.1(i); Mitchell v. Berry, No. 05-06-01328-CV, 2007 WL 4111923, at *7 (Tex.
App.—Dallas Nov. 20, 2007, pet. denied) (mem. op.). Additionally, while he contends the trial
court erred by refusing to strike the challenged evidence, he does not explain why those rulings
were an abuse of discretion or probably caused the rendition of an improper judgment. See TEX.
R. APP. P. 38.1(i), 44.1; Hilderbran, 2021 WL 2211353, at *4 n.2. Because Scudday’s brief
therefore presents nothing for our review on his evidentiary complaints, we do not reach this issue.
See Ruffin v. Sanchez, No. 04-16-00759-CV, 2017 WL 4014651, at *1 (Tex. App.—San Antonio
Sept. 13, 2017, no pet.) (mem. op.).
Summary Judgment Issues
In his first, second, third, fourth, and seventh issues, Scudday argues the trial court erred
by granting summary judgment in favor of appellees and denying his competing motion for
summary judgment on his declaratory judgment claim. He does not challenge the trial court’s
denial of his motion for summary judgment on LaFrance’s defense of volunteer immunity.
Standard of Review
The trial court signed orders granting appellees both traditional and no-evidence summary
judgment. In reviewing an order granting a motion for summary judgment, we consider only the
“summary judgment record”—the motion, the response, replies and briefs in support of the motion
and response, and the evidence attached to those filings. TEX. R. CIV. P. 166a(c), (i); Wilson v.
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Burford, 904 S.W.2d 628, 628–29 (Tex. 1995) (per curiam). Because the trial court’s orders do
not specify the reasons for its rulings, we must affirm if any of the grounds appellees asserted
below are meritorious. Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45
(Tex. 2017).
We review a no-evidence summary judgment under a legal sufficiency standard, viewing
the evidence in the light most favorable to the non-movant and disregarding all contrary evidence
and inferences. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). We will
affirm a no-evidence summary judgment if: “(a) there is a complete absence of evidence of a vital
fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence
offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere
scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.” Id. at 751
(internal quotation marks omitted); see also TEX. R. CIV. P. 166a(i). To defeat a no-evidence
motion for summary judgment, the non-movant must present more than a scintilla of evidence to
raise a genuine issue of material fact on the challenged issue. King Ranch, 118 S.W.3d at 751.
“Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create
a mere surmise or suspicion of a fact.” Id. (internal quotation marks omitted).
A traditional summary judgment movant must show it is entitled to judgment as a matter
of law because there is no genuine issue of material fact to be resolved by a factfinder. TEX. R.
CIV. P. 166a(c); Lightning Oil, 520 S.W.3d at 45. A defendant shows it is entitled to traditional
summary judgment on the plaintiff’s claims by “conclusively negat[ing] at least one of the
essential elements of a cause of action or conclusively establish[ing] an affirmative defense[.]”
Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). A plaintiff who seeks traditional
summary judgment on his own affirmative claim must conclusively prove all essential elements
of that claim. Compass Bank v. Durant, 516 S.W.3d 557, 565 (Tex. App.—Fort Worth 2017, pet.
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denied). We consider the evidence in the light most favorable to the non-movant and indulge every
reasonable inference in its favor. Lightning Oil, 520 S.W.3d at 45.
When both sides move for summary judgment on the same issue and the trial court grants
one motion and denies the other, we review all the summary judgment evidence, determine all
questions presented, and render the judgment the trial court should have rendered. Tex. Mut. Ins.
Co. v. PHI Air Med., LLC, 610 S.W.3d 839, 846 (Tex. 2020). Here, the only issues on which the
parties filed competing motions for summary judgment are Scudday’s request for declaratory relief
and LaFrance’s affirmative defense of volunteer immunity.
Threshold Issues
Before addressing the substance of the summary judgment record, we note that Scudday
argues the trial court improperly placed the summary judgment burden on him as the non-movant.
Scudday contends that “[e]very traditional and no-evidence summary judgment filed by Appellees
were based on various pled or unpled affirmative defenses.” However, the record shows that while
appellees sought—and the trial court granted—traditional summary judgment on some of their
affirmative defenses, appellees also sought and obtained no-evidence and traditional summary
judgment on the required elements of Scudday’s own claims. As noted above, appellees could
properly shift the summary judgment burden to Scudday by: (1) identifying essential elements of
Scudday’s claims that were not supported by any evidence; or (2) presenting evidence that either
conclusively negated at least one essential element of each of Scudday’s claims or conclusively
established all the elements of an affirmative defense. TEX. R. CIV. P. 166a(c), (i); Fernandez, 315
S.W.3d at 508; Romo v. Tex. Dep’t of Transp., 48 S.W.3d 265, 269 (Tex. App.—San Antonio
2001, no pet.).
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Scudday also argues that because the trial court denied his requests to take judicial notice
of certain issues, 2 it necessarily found that disputed issues of fact existed and therefore should have
denied appellees’ motions for summary judgment. A trial court may take judicial notice of “a fact
that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s
territorial jurisdiction; or (2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” TEX. R. EVID. 201(b). “[A]ssertions made by an
individual, even under oath, are not the type of facts that are capable of accurate and ready
determination by a source whose accuracy cannot reasonably be questioned.” O’Quinn v. Hall, 77
S.W.3d 438, 447 (Tex. App.—Corpus Christi–Edinburg 2002, no pet.) (alteration in original). In
contrast, a “genuine issue of material fact exists,” and will preclude the granting of summary
judgment, “when the evidence rises to a level that would enable reasonable and fair-minded people
to differ in their conclusions.” Vause v. Liberty Ins. Corp., 456 S.W.3d 222, 226 (Tex. App.—San
Antonio 2014, no pet.) (internal quotation marks omitted). Unlike judicial notice, a trial court may
grant summary judgment based on an individual’s factual assertions made in deposition testimony,
discovery responses, affidavits, and stipulations of the parties. Compare TEX. R. CIV. P. 166a(c),
with O’Quinn, 77 S.W.3d at 447.
After reviewing Scudday’s judicial notice requests, we conclude he did not show that the
matters addressed by those requests were either “generally known within the trial court’s territorial
jurisdiction” or capable of being “accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” TEX. R. EVID. 201(b), (c)(2); O’Quinn, 77 S.W.3d at 447. The
trial court therefore did not err by denying Scudday’s requests to take judicial notice of those
2
Scudday asked the trial court to judicially note that: (1) he was a private figure; (2) he was not an at-will employee;
(3) an internal HOA board operating manual was in effect on the day he was fired; and (4) he did not sexually harass
any HOA employees.
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issues. However, we reject Scudday’s suggestion that this result, standing alone, necessarily shows
that the deposition testimony, discovery responses, affidavits, and other summary judgment
evidence raised a genuine issue of material fact to defeat appellees’ motions for summary judgment
on Scudday’s claims. See TEX. R. CIV. P. 166a(c), (i). We must therefore examine the summary
judgment record to resolve Scudday’s appellate complaints. See TEX. R. CIV. P. 166a(c), (i);
Wilson, 904 S.W.2d at 628–29.
Breach of Contract
To support his breach of contract claim, Scudday bore the burden to show: (1) the existence
of a valid, enforceable contract; (2) he performed or tendered performance under the contract; (3)
appellees breached the contract; and (4) Scudday was injured by the breach. See, e.g., Brooks v.
Excellence Mortg., Ltd., 486 S.W.3d 29, 36 (Tex. App.—San Antonio 2015, pet. denied). In Texas,
all employment is presumed to be terminable at-will “absent an unequivocal agreement” to the
contrary. Ed Rachal Found. v. D’Unger, 207 S.W.3d 330, 332 (Tex. 2006) (per curiam); Midland
Judicial Dist. Cmty. Supervision & Corr. Dep’t v. Jones, 92 S.W.3d 486, 487 (Tex. 2002) (per
curiam). The Texas Supreme Court has “long held firm to the principle that . . . an at-will
employee may be fired for a good reason, a bad reason, or no reason at all.” Safeshred, Inc. v.
Martinez, 365 S.W.3d 655, 660 (Tex. 2012). Because “the promise of continued employment is
illusory” in at-will employment, such an arrangement “cannot form the basis of an enforceable
contract.” Id.Application
Appellees sought both traditional and no-evidence summary judgment on Scudday’s
breach of contract claim. We consider their no-evidence arguments first. See First United
Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017).
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Scudday argues King, Adams, and the HOA breached a valid employment contract by
wrongfully terminating him without cause. In their no-evidence motion for summary judgment,
appellees argued, “There is no evidence of a contract” and “[t]here is also no evidence that the
[HOA], King, or Adams breached any alleged employment contract[.]” These assertions
challenged two specific elements of Scudday’s claim: the existence of a contract and whether
appellees breached the contract. TEX. R. CIV. P. 166a(i). Because the motion challenged specific
elements of Scudday’s breach of contract claim against the HOA, King, and Adams, 3 it shifted the
burden to Scudday to present more than a scintilla of evidence to support those elements. See id.;
Trejo v. Laredo Nat’l Bank, 185 S.W.3d 43, 46–47 (Tex. App.—San Antonio 2005, no pet.).
In response to appellees’ no-evidence motion, Scudday presented the letter in which the
HOA offered him the ranch manager position, which was signed by both the HOA and Scudday.
Scudday argued the letter satisfied the required elements of an enforceable contract. He also
pointed to deposition testimony in which Adams referred to the letter as a contract, and he noted
that the HOA’s Board Operating Procedures stated the HOA “provides a continuing Employment
Agreement for the Ranch Manager based on satisfactory job performance.” He further noted that
the offer letter stated he was to receive an annual salary and a yearly performance review and that
the Board Operating Procedures distinguished between “full time salaried” employees like
Scudday and “at will” employees paid by the hour. Scudday argued that when read together, the
offer letter and the HOA’s Board Operating Procedures showed the parties’ intent to remove his
employment from at-will status. Scudday also argued he had constitutionally protected due process
and equal protection interests in his continued employment.
3
Appellees filed their motions for no-evidence summary judgment on Scudday’s contract, defamation, and invasion
of privacy claims before Scudday added Dockey as a defendant. We will address Scudday’s claims against Dockey
below.
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An agreement to modify the general presumption of at-will employment “must be (1)
expressed, rather than implied, and (2) clear and specific.” Friend v. CB Richard Ellis, Inc., No.
02-08-00306-CV, 2009 WL 417300, at *2 (Tex. App.—Fort Worth Feb. 19, 2009, no pet.) (mem.
op.) (internal quotation marks omitted). “An employer’s act of informing the employee of what
his salary will be for the upcoming year is not in and of itself enough to indicate the employer’s
unequivocal intention to modify the at-will status of the employee.” Id.; see also D’Unger, 207
S.W.3d at 332 (“Standing alone, an agreement to pay at a stated rate is not enough; if it were, there
would be very few at-will employees.”). Because nothing in the offer letter expressly, clearly, and
specifically limited the HOA’s right to terminate Scudday’s employment, it is no evidence that the
HOA intended to hire Scudday as anything other than an at-will employee. See Friend, 2009 WL
417300, at *2. As a result, the offer letter, standing alone, “cannot form the basis of an enforceable
contract.” Safeshred, 365 S.W.3d at 660.
Scudday argues that we are required to read the offer letter and the Board Operating
Procedures together to interpret the parties’ true intent. We note that Scudday did not present any
evidence showing the Board Operating Procedures were in effect in 2012 when the HOA hired
him. But even if we read the offer letter and the Board Operating Procedures together, we see
nothing in those documents that “unequivocally indicate[s] a definite intent to be bound not to
terminate [Scudday] except under clearly specified circumstances.” Montgomery Cty. Hosp. Dist.
v. Brown, 965 S.W.2d 501, 502 (Tex. 1998); see also Almazan v. United Servs. Auto. Ass’n, Inc.,
840 S.W.2d 776, 780–81 (Tex. App.—San Antonio 1992, writ denied). Those documents contain,
at most, “[g]eneral comments that an employee will not be discharged as long as his work is
satisfactory[.]” Brown, 965 S.W.2d at 502. Such comments “do not in themselves manifest” an
intent to modify an at-will relationship absent a specific agreement about what “good reason” or
“good cause” for termination means. Id. Because the evidence upon which Scudday relied below
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does not express a clear, specific, unequivocal intent to limit the HOA’s ability to terminate his
employment in any meaningful way, Scudday did not present more than a scintilla of evidence to
show either the existence or breach of an employment contract. See Safeshred, 365 S.W.3d at 660;
Williams v. First Tenn. Nat’l Corp., 97 S.W.3d 798, 802–03 (Tex. App.—Dallas 2003, no pet.).
Additionally, while Scudday argued he had due process and equal protection rights to continued
employment, he did not cite any authority that an at-will employee of a private employer has a
constitutional interest in his continued employment; we have found none. 4
Scudday also argues that when read together, the offer letter and the Board Operating
Procedures amount to a “satisfaction contract” rather than an at-will employment contract. As
support for this assertion, he cites a 1992 court of appeals opinion noting that “a contract by which
one agrees to employ another as long as the services are satisfactory, or which is otherwise
expressed to be conditional on the satisfactory character of the services rendered” may only be
terminated if there is “a bona fide dissatisfaction or cause for discharge[.]” Zep Mfg. Co. v.
Harthcock, 824 S.W.2d 654, 659 (Tex. App.—Dallas 1992, no writ). Because Zep appears to be
inconsistent with the Texas Supreme Court’s later opinion in Brown, we decline to apply Zep’s
analysis here. Compare id., with Brown, 965 S.W.2d at 502.
For these reasons, we conclude the trial court did not err by granting no-evidence summary
judgment for the HOA, King, and Adams on Scudday’s breach of contract claim. See TEX. R. CIV.
P. 166a(i); Brown, 965 S.W.2d at 502.
4
In his brief, Scudday relies, in part, on a case involving civil service employees of Dallas County. See County of
Dallas v. Wiland, 216 S.W.3d 344, 346 (Tex. 2007). There, the Texas Supreme Court determined that the language of
Dallas County’s employee manual granted those employees a constitutionally protected property interest in their
employment. Id. at 353–54. The Wiland court noted, however, that “[f]or well over a century, the general rule in this
State, as in most American jurisdictions, has been that absent a specific agreement to the contrary, employment may
be terminated by the employer or the employee at will, for good cause, bad cause, or no cause at all.” Id. at 347
(internal quotation marks omitted).
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Tortious Interference
Applicable Law
To support a claim for tortious interference with a contract, a plaintiff must plead and
prove: (1) the existence of a valid contract subject to interference; (2) the defendant willfully or
intentionally interfered with the contract; and (3) the defendant’s interference proximately caused
actual damage to the plaintiff. See Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 S.W.3d
671, 689 (Tex. 2017). “Ordinarily, merely inducing a contract obligor to do what it has a right to
do is not actionable interference.” ACS Invs., Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.
1997). However, in both the trial court and this court, Scudday cited a Texas Supreme Court
opinion recognizing a cause of action “for tortious interference with a contract of employment
terminable at will.” Sterner v. Marathon Oil Co., 767 S.W.2d 686, 688 (Tex. 1989). 5
Application
Scudday argues King, Adams, Haney, Chambers, Lopez, and LaFrance tortiously
interfered with his employment by inducing the HOA to fire him. In their no-evidence motion for
summary judgment on this claim, appellees argued, “There is no evidence of a valid employment
contract or that [appellees] willfully and intentionally interfered with this alleged contract” or that
any alleged interference “proximately caused Scudday’s injuries[.]” These challenges to specific
elements of Scudday’s tortious interference claim shifted the burden to Scudday to present more
5
It is unclear whether Sterner’s holding on this point survived Safeshred’s later conclusion that an at-will employment
arrangement establishes a relationship “that is not even contractual” and “cannot form the basis of an enforceable
contract.” Compare Safeshred, 365 S.W.3d at 660, with Sterner, 767 S.W.2d at 688; see also El Paso Healthcare Sys.,
Ltd. v. Murphy, 518 S.W.3d 412, 421 n.6 (Tex. 2017) (noting that post-Sterner Texas Supreme Court analysis
“suggested (without discussion) that Sterner . . . involved claims for interference with prospective business
relations”). Because appellees have not argued either here or below that Sterner is no longer good law, we will assume
Sterner controls on this point for the purpose of this appeal. See, e.g., Chavez v. Kan. City S. Ry. Co., 520 S.W.3d 898,
900 (Tex. 2017) (summary judgment movant bears the burden of showing it is entitled to judgment as a matter of
law).
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than a scintilla of evidence on those elements. TEX. R. CIV. P. 166a(i); Trejo, 185 S.W.3d at 46–
47.
In his response to appellees’ motion, Scudday argued “that the alleged act of interference
was willful and intentional” because “the false and fabricated accusations [of sexual harassment]
cannot be classified as anything less than willful and intentional.” However, Scudday did not
identify any evidence to support these assertions. Without specific guidance from the non-movant,
the trial court “was not required to search the record for evidence raising a material fact issue,”
and a trial court does not err “when it does not consider summary judgment proof to which it was
not directed.” Blake v. Intco Invs. of Tex., Inc., 123 S.W.3d 521, 525 (Tex. App.—San Antonio
2003, no pet.) (citing Guthrie v. Suiter, 934 S.W.2d 820, 826 (Tex. App.—Houston [1st Dist.]
1996, no writ)). Similarly, an appellate court reviewing a summary judgment is “not free to search
the entire record, including materials not cited to or relied on by the trial court.” Id. Because
Scudday’s summary judgment response did not identify any evidence to support his assertion of
willful and intentional conduct, the trial court was not required to search the thirty-two attachments
and exhibits Scudday included in his response for evidence raising more than a scintilla of evidence
on that element, and this court is not free to do so. See id.; see also TEX. R. CIV. P. 166a, cmt. 1997
(providing that non-movant’s response to no-evidence motion must “point out evidence that raises
a fact issue on the challenged elements”); Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 81 (Tex.
1989).
For these reasons, we conclude the trial court did not err by granting appellees a no-
evidence summary judgment on Scudday’s tortious interference claim. See TEX. R. CIV. P. 166a(i);
Blake, 123 S.W.3d at 525.
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Defamation Per Se
Applicable Law
To prevail on a defamation claim, a plaintiff must plead and prove the defendant published
a false statement of fact that defamed the plaintiff and that the defendant acted “with the requisite
degree of fault regarding the truth of the statement.” D Magazine Partners, L.P. v. Rosenthal, 529
S.W.3d 429, 434 (Tex. 2017). Where, as here, the plaintiff is a private individual, the “requisite
degree of fault” is negligence—i.e., that the defendant knew or should have known the defamatory
statements were false. Id. at 434, 440. While a defamation plaintiff ordinarily must also prove
damages, he need not satisfy that element where the defamatory statement amounts to defamation
per se. Id. at 434. “Defamation per se refers to statements that are so obviously harmful that general
damages, such as mental anguish and loss of reputation, are presumed,” such as “[a]ccusing
someone of a crime, of having a foul or loathsome disease, or of engaging in serious sexual
misconduct[.]” In re Lipsky, 460 S.W.3d 579, 596 (Tex. 2015).
Application
Appellees sought both traditional and no-evidence summary judgment on Scudday’s claim
for defamation per se. In their no-evidence motion, they argued there was no evidence that “any
of the Defendants published a statement of fact which referred to Scudday, was defamatory, and
false.” They also argued there was “no evidence that with regard to the truth of the alleged
defamatory statements, Defendants were acting with actual malice, were negligent, or were strictly
liable.” Because the motion challenged specifically identified elements of Scudday’s defamation
per se claim, it shifted the burden to Scudday to present more than a scintilla of evidence to support
those elements. TEX. R. CIV. P. 166a(i); Trejo, 185 S.W.3d at 46–47.
As explained more fully below in our discussion of Scudday’s declaratory judgment action,
Scudday argued throughout this litigation that the sexual harassment allegations were false because
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appellees could not show Haney and Chambers would prevail in a discrimination lawsuit on their
claims of sexual harassment. However, Scudday’s response to appellees’ motion for summary
judgment on his defamation claim did not deny that he engaged in the conduct that was interpreted
as “sexual harassment” by Haney, Chambers, Lopez, the board members who voted to fire him,
and the HOA’s attorney. Additionally, Scudday’s response did not point to any evidence showing
that any of the appellees knew or should have known the allegations regarding his conduct were
false. See D Magazine, 529 S.W.3d at 434, 440. Instead, he argued that he was not a public figure
and that he therefore was not required to show appellees acted with actual malice. Because
Scudday’s response did not present any evidence to raise a genuine issue of material fact as to
either the falsity of his alleged conduct or appellees’ negligence, the trial court did not err by
granting appellees’ motion for no-evidence summary judgment on his defamation per se claim.
TEX. R. CIV. P. 166a(i); King Ranch, 118 S.W.3d at 751.
Invasion of Privacy
Scudday asserted a breach of privacy claim against the HOA, King, Adams, and LaFrance.
“Texas recognizes three separate types of invasion of privacy: (1) intrusion upon seclusion or
solitude or into one’s private affairs; (2) public disclosure of embarrassing private facts; and (3)
wrongful appropriation of one’s name or likeness.” Doggett v. Travis Law Firm, P.C., 555 S.W.3d
127, 130 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). Scudday’s response to appellees’
motion for summary judgment specified that he alleged only intrusion upon seclusion and public
disclosure of private facts.
Applicable Law
To recover on a claim for intrusion upon seclusion, a plaintiff must plead and prove “(1)
an intentional intrusion, physically or otherwise, upon another’s solitude, seclusion, or private
affairs or concerns, which (2) would be highly offensive to a reasonable person.” Valenzuela v.
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Aquino, 853 S.W.2d 512, 513 (Tex. 1993); Rodriguez v. Wal-Mart Stores, Inc., 52 S.W.3d 814,
822 (Tex. App.—San Antonio 2001), rev’d in part on other grounds, 92 S.W.3d 502 (Tex. 2002).
Several of our sister courts have “held that an intrusion upon seclusion claim fails without evidence
of a physical intrusion or eavesdropping on another’s conversation with the aid of wiretaps,
microphones, or spying.” Morales v. Barnes, No. 05-17-00316-CV, 2017 WL 6759190, at *5 (Tex.
App.—Dallas Dec. 29, 2017, pet. denied) (citing opinions to this effect from the First, Fifth,
Twelfth, and Fourteenth Courts of Appeals). “When assessing the offensive nature of the invasion,
courts further require the intrusion to be unjustified or unwarranted.” Vaughn v. Drennon, 202
S.W.3d 308, 320 (Tex. App.—Tyler 2006, pet. denied).
To prevail on a claim for public disclosure of private facts, a plaintiff must show: “(1)
publicity given to matters concerning [his] private life; (2) the publication would be highly
offensive to a reasonable person of ordinary sensibilities; and (3) the matter publicized is not of
legitimate public concern.” Polansky v. Sw. Airlines Co., 75 S.W.3d 99, 104–05 (Tex. App.—San
Antonio 2002, no pet.).
Application
A. Intrusion into seclusion
In their no-evidence challenge to Scudday’s intrusion upon seclusion claim, appellees
argued there was no evidence that: (1) they had intentionally intruded into Scudday’s solitude,
seclusion, or private affairs; or (2) any alleged intrusion would be highly offensive to a regular
person. See Valenzuela, 853 S.W.2d at 513. Because appellees’ motion challenged specific
elements of Scudday’s claim, it shifted the burden to Scudday to present more than a scintilla of
evidence to support those elements. TEX. R. CIV. P. 166a(i); Trejo, 185 S.W.3d at 46–47.
Scudday’s response to appellees’ motion did not directly address the required elements of
intrusion upon seclusion. However, the response pointed to evidence showing that after Scudday
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was terminated, LaFrance spoke with Scudday’s former employer, C.C. Burgess, and later shared
details about that conversation with Adams. Scudday’s evidence showed that while LaFrance told
Burgess Scudday had been terminated, she “did not say why.” Scudday’s evidence also showed
that Burgess refused to answer LaFrance’s question about “how he would characterize Scudday,
as honest or dishonest, etc.” because “the law prevents him from saying much about [Scudday]
without a threat of slander.” Scudday also identified evidence which he contended showed
appellees “gave LaFrance . . . unfettered access to personnel files and records after” Scudday was
fired. The exhibit Scudday relied on for this contention consists of emails between LaFrance,
Adams, and Haney about checks drawn on the HOA’s bank account, as well as images of those
checks. Nothing in the exhibit indicates that LaFrance had access to Scudday’s personnel file or
any HOA records other than the checks at issue.
Because the evidence Scudday identified in his summary judgment response does not refer
to King in any way, it is no evidence that King participated in the actions about which Scudday
complains. See Robinson v. Brannon, 313 S.W.3d 860, 867–68 (Tex. App.—Houston [14th Dist.]
2010, no pet.). Additionally, even when viewed in the light most favorable to Scudday, this
evidence would not allow reasonable and fair-minded people to conclude that LaFrance’s single
conversation with Burgess or her access to information about the HOA’s checking account
constituted an intentional intrusion by any of the appellees into Scudday’s solitude, seclusion, or
private affairs or that the purported intrusion would be highly offensive to a reasonable person. Cf.
Morales, 2017 WL 6759190, at *4–5 (concluding “a single letter directed at [claimant’s]
employer” was insufficient to establish a prima facie case of intrusion on seclusion). Because
Scudday therefore failed to present more than a scintilla of evidence on these challenged elements
of his intrusion on seclusion claim, the trial court properly granted no-evidence summary judgment
on that claim. TEX. R. CIV. P. 166a(i); see King Ranch, 118 S.W.3d at 751.
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B. Public disclosure of private facts
In their no-evidence challenge to Scudday’s public disclosure of private facts claim,
appellees argued Scudday could not present evidence that: (1) the HOA, King, Adams, or LaFrance
publicized information about Scudday’s private life; (2) any alleged publicity would be highly
offensive to a reasonable person; or (3) any matter publicized was not of legitimate public concern.
See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473–74 (Tex. 1995). In response, Scudday
identified evidence showing the HOA publicized the reason for his termination “ranch wide to the
Homeowners at [the HOA].” We need not decide whether this publication disclosed information
about Scudday’s private life or would be highly offensive to a reasonable person, because Scudday
failed to present evidence that the matter was not of legitimate public concern.
“The determination whether a given matter is one of legitimate public concern must be
made in the factual context of each particular case, considering the nature of the information and
the public’s legitimate interest in its disclosure.” Id. at 474. Here, although Scudday argued his
termination and the reasons for it were not of legitimate public concern, he did not cite any
evidence to support that argument. Instead, he cited a definition of “matter of public concern” that
appeared in a former version of the Texas Citizens Participation Act. See Act of June 17, 2011,
82nd Leg., ch. 341, § 2 (amended 2019) (current version at TEX. CIV. PRAC. & REM. CODE
§ 27.001(7)); Warner Bros. Entm’t, Inc. v. Jones, 538 S.W.3d 781, 796 (Tex. App.—Austin 2017),
aff’d, 611 S.W.3d 1 (Tex. 2020). Scudday argued that if “[t]he matter publicized was . . . of
legitimate public concern,” then appellees “were required to file a suit to dismiss under the Texas
Citizens Participation Act, yet they have failed to do so.” Scudday did not cite any authority to
support his assertion that appellees’ failure to seek dismissal under the TCPA raised a fact issue
about whether the matter was “of legitimate public concern.” Because Scudday did not present
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more than a scintilla of evidence on that issue, the trial court did not err by granting a no-evidence
summary judgment on his public disclosure of private facts claim. TEX. R. CIV. P. 166a(i).
Declaratory Judgment
Both Scudday and appellees sought summary judgment on Scudday’s request for a
declaration of “no sexual harassment as a matter of law” under the Uniform Declaratory Judgments
Act. The trial court granted appellees’ motion, denied Scudday’s, and dismissed the declaratory
judgment claim.
Applicable Law
The UDJA provides:
A person interested under a deed, will, written contract, or other writings
constituting a contract or whose rights, status, or other legal relations are affected
by a statute, municipal ordinance, contract, or franchise may have determined any
question of construction or validity arising under the instrument, statute, ordinance,
contract, or franchise and obtain a declaration of rights, status, or other legal
relations thereunder.
TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a). A declaratory judgment is only appropriate “if a
justiciable controversy exists as to the rights and status of the parties and the controversy will be
resolved by the declaration sought.” Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex.
1995). “To constitute a justiciable controversy, there must exist a real and substantial controversy
involving genuine conflict of tangible interests and not merely a theoretical dispute.” Id. (internal
quotation marks omitted). Because a UDJA claim that seeks a declaration of “‘what the law would
be on a hypothetical set of facts’” is not ripe for adjudication, a trial court lacks subject matter
jurisdiction to render such a declaration. See Robinson v. Parker, 353 S.W.3d 753, 755–56 (Tex.
2011) (quoting Patterson v. Planned Parenthood of Hous. & Se. Tex., Inc., 971 S.W.2d 439, 444
(Tex. 1998)).
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Application
Scudday argued the declaratory relief he sought would “‘terminate a controversy or remove
an uncertainty’ in this case” by disposing of “the false and fabricated accusations of sexual
harassment.” He contended that the conduct described in the LaFrance statements was “not, as a
matter of law, ‘sexual harassment’ as defined by statute, case law, or general usage” and therefore
would not support a claim for sexual-harassment-based discrimination under Texas or federal law.
In their response to Scudday’s motion, appellees argued the requested declaration “will not resolve
the controversy between Scudday and [appellees].” In their competing motion for summary
judgment, appellees argued relief under the UDJA was improper because Scudday’s claim did “not
seek to construe a contract, statute, or other writing and because it [was] an improper attempt to
seek a declaration of non-liability[.]”
Scudday’s declaratory judgment action sought the construction of state and federal
discrimination statutes. TEX. CIV. PRAC. & REM. CODE § 37.004(a). Nevertheless, the trial court
did not err by concluding that the requested declaration would not resolve any disputes between
these parties. See Bonham, 907 S.W.2d at 467. As to Scudday’s breach of contract claim, we have
already concluded that he did not present more than a scintilla of evidence that he was not an at-
will employee. See, e.g., Williams, 97 S.W.3d at 802–03. Because an at-will employee may be
fired for any reason or no reason at all, a declaration regarding the accuracy of the sexual
harassment allegations would not resolve Scudday’s breach of contract claim. See Safeshred, 365
S.W.3d at 660.
As to his remaining claims, Scudday himself explicitly argued that the purportedly harassed
parties had never filed a discrimination claim and that they were procedurally barred from doing
so. Scudday’s own arguments therefore affirmatively demonstrated that his declaratory judgment
action asked the trial court to resolve the merits of a claim that was merely hypothetical. See
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Robinson, 353 S.W.3d at 755–56; S. Methodist Univ. v. Times Herald Printing Co., 729 S.W.2d
129, 131 (Tex. App.—Dallas 1987, no writ). The trial court lacked subject-matter jurisdiction to
resolve that theoretical claim. See, e.g., Patterson, 971 S.W.2d at 442; see also McAllen Med. Ctr.,
Inc. v. Cortez, 66 S.W.3d 227, 232 (Tex. 2001).
For these reasons, the summary judgment record shows Scudday’s declaratory judgment
claim did not present a justiciable controversy. See Bonham, 907 S.W.2d at 467. Because the trial
court therefore lacked subject-matter jurisdiction to decide that claim, it did not err by denying
Scudday’s motion for summary judgment, granting appellees’ competing motion, and dismissing
Scudday’s claim for declaratory judgment. See TEX. R. CIV. P. 166a(c); cf. Green Tree Servicing,
LLC v. Woods, 388 S.W.3d 785, 791–92 (Tex. App.—Houston [1st Dist.] 2012, no pet.)
(recognizing that “matters concerning subject-matter jurisdiction” may be resolved through
traditional summary judgment).
Claims Against Dockey
Although Scudday filed his original petition in January of 2016, he did not assert any
claims against Dockey until October 23, 2019. Because appellees filed the motions for summary
judgment we considered above prior to Dockey’s appearance in this lawsuit, those motions did not
seek relief on his behalf and therefore cannot support summary judgment in his favor. See
McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); Hardaway v. Nixon,
544 S.W.3d 402, 412 (Tex. App.—San Antonio, pet. denied). However, after Scudday sued
Dockey, appellees filed an additional motion for summary judgment arguing the claims against
Dockey were barred by limitations.
A defendant who seeks summary judgment on a limitations defense must conclusively
establish the date the plaintiff’s cause of action accrued. Eagle Oil & Gas Co. v. TRO-X, L.P., 619
S.W.3d 699, 708 (Tex. 2021). “The limitations period on a cause of action begins to run when a
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wrongful act causes some legal injury, even if the fact of injury is not discovered until later, and
even if all resulting damages have not yet occurred.” Id. at 707–08 (internal quotation marks
omitted). Here, appellees’ motion argued the legal injury underlying Scudday’s breach of contract,
tortious interference, defamation, invasion of privacy, and declaratory judgment claims occurred
on the date of his termination: April 27, 2015. Appellees noted that Scudday’s defamation claim
was subject to a one-year statute of limitations; his tortious interference and invasion of privacy
claims were subject to a two-year statute of limitations; and his breach of contract and declaratory
judgment claims were subject to a four-year statute of limitations. See TEX. CIV. PRAC. & REM.
CODE ANN. §§ 16.002(a), 16.003(a), 16.051; Eagle Oil, 619 S.W.3d at 707–08. Because Scudday
did not sue Dockey until more than four years after his termination, appellees argued the evidence
conclusively showed Scudday’s claims against Dockey were time-barred.
In response, Scudday did not dispute appellees’ assertion that his causes of action accrued
on the date of his termination or that he sued Dockey more than four years after the date of his
legal injury. He argued, however, that his claims against Dockey were tolled by the doctrine of
fraudulent concealment. To defeat appellees’ motion on this ground, Scudday was required to
produce more than a scintilla of evidence of: (1) an underlying tort; (2) Dockey’s knowledge of
the tort; (3) Dockey’s use of deception to conceal the tort; and (4) Scudday’s reasonable reliance
on the deception. See Draughon v. Johnson, 631 S.W.3d 81, 88–89 (Tex. 2021); United Healthcare
Servs., Inc. v. First Street Hosp. LP, 570 S.W.3d 323, 341 (Tex. App.—Houston [1st Dist.] 2018,
pet. denied). As support for these elements, Scudday argued the evidence showed that King,
Adams, and Dockey concealed an allegedly ultra vires board meeting that occurred two days
before his termination.
We conclude Scudday’s evidence did not raise a genuine issue of material fact as to at least
two elements of fraudulent concealment. See King Ranch, 118 S.W.3d at 751. Scudday argued the
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evidence shows appellees used deception to conceal the allegedly ultra vires meeting because the
HOA did not disclose the meeting in its March 18, 2016 responses to Scudday’s first request for
production. However, it is well-established that “a failure to disclose information does not
constitute fraud unless there is a duty to disclose the information.” Bazan v. Munoz, 444 S.W.3d
110, 117 (Tex. App.—San Antonio 2014, no pet.). Scudday did not present any evidence that
Dockey was an agent of the HOA when it submitted the March 18, 2016 discovery responses, 6 and
it is undisputed that Dockey was not a party to this lawsuit in either an individual or representative
capacity at that time. Because Scudday did not present any evidence that Dockey had a duty to
disclose anything in the HOA’s discovery responses, he did not meet his burden to raise a fact
issue about whether Dockey himself both “knew [Scudday] had been wronged and concealed that
fact to deceive him.” See Shah v. Moss, 67 S.W.3d 836, 846 (Tex. 2001).
Additionally, to toll limitations based on fraudulent concealment, Scudday was required to
show he reasonably relied on appellees’ representations. See, e.g., BP Am. Prod. Co. v. Marshall,
342 S.W.3d 59, 68 (Tex. 2011). “[R]eliance is not reasonable when information revealing the truth
could have been discovered within the limitations period.” Id. Here, the evidence attached to
appellees’ motion for summary judgment on limitations included affidavits that King and Adams
signed in April of 2016. As appellees noted in their reply in support of their motion for summary
judgment on limitations, King and Adams used those same affidavits as exhibits to a previous
motion for summary judgment they filed on April 15, 2016—a date that fell within the statutes of
limitations for all of Scudday’s claims. Those affidavits state that prior to Scudday’s termination,
King and Adams “informed another Board Member, Bob Dockey about [the allegations against
6
The evidence appellees presented in support of a different motion for summary judgment showed that Dockey served
on the HOA’s board of directors from January 1, 2014 until December 31, 2015.
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Scudday] and we talked about the possibility of the Board hiring an investigator to look in to these
allegations.”
Scudday did not dispute that he received the King and Adams affidavits within the statutes
of limitations on his claims. He argued, however, that because the King and Adams affidavits did
not specifically mention the allegedly ultra vires meeting, he believed the affidavits referred only
to email conversations between King, Adams, and Dockey. Scudday did not present any evidence
or authority to support a conclusion that his belief was reasonable or that he could not have
discovered the truth within the limitations period. See id. Moreover, even if the King and Adams
affidavits were intended to conceal the allegedly ultra vires meeting, Scudday again did not present
any evidence to support a conclusion that Dockey himself made any representations intended to
deceive Scudday. See Shah, 67 S.W.3d at 846.
For these reasons, Scudday did not satisfy his burden to raise a genuine issue of material
fact that fraudulent concealment tolled the statutes of limitation on his claims against Dockey.
Accordingly, the trial court did not err by granting Dockey a traditional summary judgment on his
limitations defense. See TEX. R. CIV. P. 166a(c); Draughon, 631 S.W.3d at 88–89.
Ultra Vires Claims
Like his fraudulent concealment claim, Scudday’s claim that King, Adams, and Dockey
committed ultra vires acts arose out of the pre-termination meeting. King, Adams, and Dockey
sought traditional and no-evidence summary judgment on the ultra vires claim, and their motion
primarily argued that the meeting did not constitute an ultra vires act. However, relying on section
20.002 of the Texas Business Organizations Code, they also argued Scudday lacked standing to
assert an ultra vires claim.
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Section 20.002, which applies to both for-profit and nonprofit corporations, provides:
The fact that an act . . . is beyond the scope of the expressed purpose or purposes
of the corporation or is inconsistent with an expressed limitation on the authority
of an officer or director may be asserted in a proceeding . . . by the corporation,
acting directly or through a receiver, trustee, or other legal representative, or
through members in a representative suit, against an officer or director or former
officer or director of the corporation for exceeding that person’s authority[.]
TEX. BUS. ORG. CODE ANN. § 20.002(c)(2) (emphasis added). We have previously interpreted this
provision as a rule of standing. See Rio Grande H2O Guardian v. Robert Muller Family P’ship
Ltd., No. 04-13-00441-CV, 2014 WL 309776, at *5 (Tex. App.—San Antonio Jan. 29, 2014, no
pet.), disapproved on other grounds by In re Lipsky, 460 S.W.3d at 587.
In support of their motion, King, Adams, and Dockey presented the HOA’s bylaws and
articles of incorporation. These documents show the HOA is a nonprofit corporation and that its
membership consists of “Owner[s] of record,” which the bylaws define as “the person or persons,
entity or entities, who own a Lot [in Tierra Linda Ranch] by virtue of a recorded deed to the fee,
or by virtue of a recorded ‘Contract for Deed.’” Because Scudday has never owned property in
Tierra Linda Ranch, King, Adams, and Dockey argued the evidence conclusively showed he was
neither a legal representative of the HOA nor a “member” who had standing to bring an ultra vires
claim against an officer or director of the HOA. See TEX. BUS. ORG. CODE § 20.002(c); see also
TEX. R. CIV. P. 166a(c).
In response, Scudday did not present any evidence that he had ever owned property in
Tierra Linda Ranch or that he had ever served as a legal representative of the HOA. Because the
summary judgment record therefore does not contain any evidence that raises a genuine issue of
material fact on Scudday’s standing to assert his ultra vires claims, the trial court did not err by
granting summary judgment for King, Adams, and Dockey on that claim. See TEX. R. CIV. P.
166a(c); TEX. BUS. ORG. CODE § 20.002(c).
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Nonsuit
In his fifth issue, Scudday argues the trial court abused its discretion by signing an order
nonsuiting appellees’ claim for attorney’s fees because: (1) the trial court granted the nonsuit
“without prejudice”; and (2) appellees “never affirmatively pled for attorney’s fees” and therefore
“never had a legally asserted claim to non-suit.” “Parties have an absolute right to nonsuit their
own claims, but not someone else’s claims they are trying to avoid.” Tex. Mut. Ins. Co. v. Ledbetter,
251 S.W.3d 31, 37 (Tex. 2008) (internal citations omitted). A litigant may nonsuit its own claim
at any time before it “has introduced all of [its] evidence other than rebuttal evidence[.]” TEX. R.
CIV. P. 162. When a litigant is entitled to a nonsuit, the trial court’s order dismissing the claim is
purely ministerial. See, e.g., Klein v. Hernandez, 315 S.W.3d 1, 4 (Tex. 2010); In re Greater Hous.
Orthopaedic Specialists, Inc., 295 S.W.3d 323, 325 (Tex. 2009) (per curiam).
Scudday does not argue that appellees’ nonsuit was an attempt to avoid any of his own
claims, and he has not disputed that appellees filed their notice of nonsuit before they introduced
evidence of their attorney’s fees. See TEX. R. CIV. P. 162; Ledbetter, 251 S.W.3d at 37. He also
does not cite any authority holding that a trial court abuses its discretion by signing an order
nonsuiting a claim without prejudice under these circumstances. Scudday therefore has not shown
the trial court abused its discretion by signing the order nonsuiting appellees’ fee claim. See Klein,
315 S.W.3d at 4.
We overrule Scudday’s fifth issue.
CONCLUSION
We affirm the trial court’s August 10, 2020 and August 11, 2020 orders to the extent that
those orders: (1) grant appellees’ motions for no-evidence summary judgment on Scudday’s
breach of contract, tortious interference, invasion of privacy, and defamation per se claims; (2)
grant appellees’ motions for traditional summary judgment on Scudday’s ultra vires and
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declaratory judgment claims and on appellee Dockey’s limitations defense; and (3) deny
Scudday’s motion for summary judgment on his declaratory judgment claim. Because our
disposition of these orders fully resolves this appeal, we need not consider Scudday’s challenges
to the portions of the trial court’s orders that grant appellees’ motions for traditional summary
judgment on: (1) appellees’ affirmative defenses of volunteer immunity, absolute immunity, and
qualified immunity; and (2) Scudday’s breach of contract, tortious interference, invasion of
privacy, and defamation per se claims. See TEX. R. APP. P. 47.1.
Beth Watkins, Justice
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