Blake Stringer, Bacc Farms, Ltd., Rockin' Lazy S, Inc. v. Red River Commodoties, Inc., and Carroll Michael Williams

NO. 07-06-0119-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

DECEMBER 13, 2006

______________________________

BLAKE STRINGER, BACC FARMS, LTD., and

ROCKIN' LAZY S, INC.,

Appellants

v.

RED RIVER COMMODITIES, INC., and

CARROLL MICHAEL WILLIAMS,

Appellees

_________________________________

FROM THE 69 TH DISTRICT COURT OF MOORE COUNTY;

NO. 04-11; HON. ROLAND D. SAUL, PRESIDING

_______________________________

Memorandum Opinion

_______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellants Blake Stringer, BACC Farms, Ltd., and Rockin' Lazy S, Inc. (collectively

referred to as Stringer) appeal from a judgment denying them recovery against Red River

Commodities, Inc. and Carroll Michael Williams (collectively referred to as Red River).

Their two complaints involve the trial court's refusal to admit into evidence a purported

government record labeled Plaintiffs' Exhibit 333 (P333) and the expert testimony of Dr.

Peter Bernhardt. We affirm the judgment.

Background

The dispute concerns failed sunflower crops planted by Stringer in the years 2002

and 2003. The seed for the crops was acquired from Red River, and, Stringer believed

them to be defective given their purported inability to produce as represented by the

business. Thus, Stringer sued Red River to recover damages. Red River defended

against the suit by, among other things, attempting to illustrate that events or acts other

than the quality of its seed caused the low crop yields experienced by Stringer.

P333

Stringer initially contends that the trial court erred in excluding his exhibit P333 from

evidence. The document purported to be a government record issued by the United States

Department of Agriculture Risk Management Agency. Through it, the agency found that

a potential crop planted with the type of seed utilized by Stringer in 2002 was uninsurable.

Red River objected to its admission on the grounds of hearsay and relevance. Stringer

sought to refute those grounds by asserting that the exhibit 1) was "excluded from the

hearsay rule because it's a document required by a governmental agency," 2) showed

"insurance was denied in 2002 because the crop was uninsurable," and 3) was "relevant

among other things to the mental anguish of the Plaintiff." (1) The trial court sustained Red

River's objection, though it did not specify any particular ground for doing so.

Whether the trial court erred in sustaining the objection depends upon whether it

abused its discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.

1998). Moreover, we must uphold the evidentiary ruling if there is any legitimate basis

upon which to do so, id. , and the burden lies with appellant to show that there were no

grounds supporting the decision. See Minnesota Min. & Mfg. Co. v. Nishika, Ltd., 885

S.W.2d 603, 630 (Tex. App.-Beaumont 1994), rev'd on other grounds, 953 S.W.2d 733

(Tex. 1997) (stating that "3M . . . had to bear the burden of showing that there was no

ground upon which the trial court could have properly excluded the hearsay evidence").

Given that at least two grounds were mentioned as basis for excluding P333, the

burden lay with Stringer to show us why neither justified the trial court's decision. And, as

to hearsay, he simply wrote in footnote three of his brief that: "P333 is excluded from the

hearsay rule. See Tex. R. Evid. 803(8); Nissan Motor Co. , 145 S.W.3d at 141." Nothing

more was said. So, to the extent both Rule 803(8) and Nissan mention that governmental

records may be excluded from the hearsay rule, Stringer did not explain why P333 should

fall within that exclusion. Nor did he explain within what category of Rule 803(8) the

document fell. This is of import since three exist and two of them mandate that the report

encompass 1) matters observed per duty imposed by law or 2) factual findings deriving

from an investigation made pursuant to authority granted by law. (2) Whether P333 met the

requirements of either category went unmentioned, as did whether the document came

within the parameters of the third category ( i.e. records setting forth the activities of the

issuing agency).

As stated in State v. Foltin , 930 S.W.2d 270 (Tex. App.-Houston [14 th Dist.] 1996,

writ denied), "[o]nce a document has been authenticated, Rule 803(8) does not require a

formal predicate to be laid through a witness, but the offered document must be shown to

satisfy the requirements of the rule." Id. at 272 . Stringer cites us to no evidence (and we

found none) authenticating P333 and thereby relieving himself of having to prove the item

satisfied Rule 803(8). Nor have we uncovered testimony purporting to illustrate that the

document met the requirements of that rule. Thus, he did not carry his burden to prove that

the trial court erred in excluding it on the basis of hearsay.

As for the matter of relevance, we reiterate that Stringer claimed the document was

"relevant . . . to the mental anguish of the Plaintiff." Yet, that particular ground goes

unmentioned on appeal. Rather, he avers here that the trial court should have admitted

the record since it was relevant to the issue of causation. Given that the ground uttered

here differed from that mentioned below, nothing was preserved for our review. Hoxie

Implement Co., Inc. v. Baker, 65 S.W.3d 140, 151 (Tex. App.-Amarillo 2001, pet. denied).

Finally, even if the trial court erred in excluding the item, it remained Stringer's

burden to establish harm. Doing so obligated him to demonstrate "that the whole case

depended upon the evidence that was excluded." Minnesota Min. & Mfg. Co. v. Nishika

Ltd. , 885 S.W.2d at 630 . Stringer endeavored to illustrate the potential relevance of P333.

He also opined that exclusion of the document "probably resulted in an improper judgment."

But, given the tenor of the entire record, we cannot say that Stringer's whole case

depended upon admission of P333.

In sum, Stringer did not establish that the trial court abused its discretion in excluding

P333. So, we overrule the contention.

Expert Testimony

Next we address the expert testimony excluded by the trial court. It consisted of

comments by Dr. Peter Bernhardt of an experiment conducted after various of Stringer's

crops allegedly failed. The experiment allegedly consisted of his planting various types of

sunflower seeds, including those of the kind Stringer planted. Bags were placed over the

flowers of some of the maturing plants while the flowers of others were left uncovered.

Through this, he hoped to determine the self-pollination rate of the seed used by Stringer.

Red River moved to strike the testimony, which motion the trial court granted on the basis

that Bernhardt "did not conduct a valid scientific experiment." We overrule the issue.

As already stated, we may uphold the trial court's decision on any legitimate ground.

Owens-Corning Fiberglas Corp. v. Malone , supra . Next, when questioned, Bernhardt

revealed that he did not know the weather conditions ( i.e. rainfall, humidity, and wind) that

prevailed during his experiment. Nor did he plant the seeds himself or know the amount

of irrigation provided in the experiment, the fertility of the soil before the seeds were

planted, or the fertilizer requirements for sunflowers. This is of import because he also

opined that climatic conditions, insufficient water, "insufficient timing of water," humidity,

and fertilizer could impact the plants' growth and production of acceptable seed.

When asked about soil moisture at the time of planting, Bernhardt also stated that

he checked it by "eyeballing it," a method he then agreed was not reliable for a plant

physiologist. So too did he admit that he could not provide a specific rate of error related

to his experiment, he had never been involved in raising sunflowers or in their breeding or

fertilization prior to being hired by Stringer's attorney to conduct the experiment, and he

was not an expert on sunflowers. Nor did he know if the seeds used in the experiment

were of the type or breed represented because they were given him by Stringer or his

attorney. This too is of import because he later indicated that hybrid seed similarly labeled

could produce differently if they came from different "parents" or "heads."

Before purportedly expert testimony is admitted, it must be shown not only that the

expert is qualified but also that his opinions are relevant and have a reliable foundation.

E. I. du Pont de Nemours & Co. v. Robinson , 923 S.W.2d 549, 556 (Tex. 1995). To be

qualified, the expert must have knowledge, skill, experience, training, or education

regarding the specific issue before the court. Broders v. Heise , 924 S.W.2d 148, 153-54

(Tex. 1996); see Helena Chemical Co. v. Wilkins , 18 S.W.3d 744, 752-53 (Tex. App.-San

Antonio 2000), aff'd, 47 S.W.3d 486 (Tex. 2001) (stating that the focus is on whether the

expert's expertise goes to the very matter on which he is to give an opinion). The very

matter about which Bernhardt was to opine encompassed the self-pollination of sunflowers.

Because he admitted to lacking expertise on sunflowers and to never before having been

involved with their raising or breeding, the trial court could have rationally inferred that he

lacked the experience and training in that field and, thus, was not qualified in the matter.

Or, the trial court could have concluded that the reliability of his experiment was

suspect. Again, Bernhardt did not personally know if any of the particular sunflower seeds

planted were of the same type involved in the underlying suit; instead, he had to rely on the

representations of Stringer and his attorney. Nor was he aware of the climatic or soil

conditions involved in his experiment even though they could affect the results. Reason

suggests that one attempting to determine the productivity of seed would know of and

regulate the many indicia that may affect that productivity. Bernhardt did not viz his

experiment.

In sum, we cannot say that the trial court abused its discretion in excluding the

purportedly expert testimony at issue. The issue is overruled.

Having overruled each issue, we affirm the judgment of the trial court.

Brian Quinn

Chief Justice

1. What the "other things" were went unmentioned.

2.

The rule states that reports, records, and the like of public offices or agencies are excluded from the

hearsay rule if they set forth 1) the activities of the agency or office, 2) matters observed pursuant to duty

imposed by law as to which there was a duty to report, or 3) factual findings resulting from an investigation

made pursuant to authority granted by law. Tex. R. Evid. 803(8).

ing faculty, several staff members, and persons

outside of the Department that he intended to sue Norville.

On May 14, 2005, Senior Associate Dean Ernest Kiesling met with Phelan. Kiesling

admitted Norville had an abrasive style but wanted to know if there was any way Phelan

would arbitrate his complaints related to Norville and reset the tenure process. Meanwhile,

Eibeck asked Norville to draft a statement recommending Phelan's non-reappointment.

During the drafting process, Eibeck provided comments to Norville by e-mail (5) as follows:

I read your statement. My suggestion is that you change the Introduction to

be more of an Executive Summary that gives a succinct set of reasons to let

Phelan go. Too much of the document sounds like "I couldn't get along with

the creep so I am firing him." Make it clear that 1. He is minimally performing

on the job with examples and then 2. His actions reflect dysfunctional

behavior with examples. Emphasize the most significant issues to the

institution first vs. The ones that bother you most. For example, the fact that

he would come to see me without first notifying you is trivial to a Provost.

On May 19, 2005, Phelan went to the District Attorney's Office in Lubbock to report

an alleged assault on his person by Norville in the Fall of 2004. The DA's office informed

Phelan he would have to report the incident to the Lubbock Police Department who then

referred Phelan to the Texas Tech Police. Phelan then filed an assault complaint against

Norville with the Texas Tech Police.

On May 20, 2005, Marcy, Hall, Mellinger, Eibeck, Kiesling, and Norville met to

discuss the proper procedure for issuing Phelan's notice of non-reappointment. During

that meeting, a Texas Tech Police Officer brought them a copy of Phelan's assault

complaint against Norville. Other than reviewing the contents of the complaint, the report

was not discussed at the meeting. On May 26, 2005, Texas Tech Police informed Norville

they had completed their investigation of Phelan's assault complaint and would not pursue

any charges.

Eibeck and Norville subsequently delivered a letter dated May 26, 2005, to Phelan

informing him of his non-reappointment as a tenure-acquiring faculty member, and offered

him a terminal appointment for the '05-'06 academic year. Per the letter, Phelan's last day

of employment would be May 31, 2006. (6) The basis for Phelan's non-reappointment was

his failure to submit timely reports to his primary research sponsor, TxDOT, his lack of

journal publications, and his inability to carry out simultaneously varied tasks required of

a tenure track faculty member.

Per the Regents' Rules and Faculty Handbook and Operating Procedures, Phelan

was not eligible for tenure at the time of his non-reappointment in May 2005. He had not

completed the probationary period of six years, and the Board of Regents had not admitted

him to tenure. Because Phelan had served only three years as a Research Assistant

Professor and three years as an Assistant Professor on a tenure track, he had attained no

particular employment status entitling him to continued employment under Texas Tech's

policies and procedures.

Under the Regents' Rules, full-time untenured faculty members, such as Phelan,

with more than two years employment are entitled to notice of non-reappointment by

issuance of a terminal contract for one academic year. Texas Tech is not required to give

a reason for a decision of non-reappointment. However, if the faculty member alleges that

a decision not to reappoint was caused by considerations violative of academic freedom,

for constitutionally impermissible reasons, or for significant noncompliance with Texas

Tech's established standards or prescribed procedures, the allegations are given

preliminary consideration by a Faculty Committee appointed by the Tenure Advisory

Committee (TAC). (7) If the Faculty Committee concludes that an allegation is supported by

probable cause, the Tenure Advisory Committee notifies the Provost and convenes a

Hearing Committee where the matter is heard with procedures outlined in the Regents'

Rules. If the Faculty Committee determines that probable cause does not exist, no further

action is taken and the non-reappointment stands.

Phelan sought review of his non-reappointment before the TAC and submitted a

memorandum to the Provost's Office. His memorandum contained a statement of facts,

an analysis of his request for review, his request for relief, and de facto tenure presentation

with a discussion of the Regents' Rules. His resume was also attached with various

exhibits.

Phelan also filed a grievance against Norville with the President's Office dated May

31, 2005. The grievance contained a statement of facts discussing his grievance and

requested relief. (8) Ron Phillips, a representative of the President's Office, told Phelan that

he should first present his grievance against Norville to Eibeck.

As Vice Provost and ex-officio TAC member, Hall was responsible for scheduling

a faculty committee meeting to review Phelan's non-reappointment. Hall was also

responsible for providing TAC and the faculty committee with relevant information,

including an initial briefing on Texas Tech policy governing their fact finding and

deliberation. Prior to scheduling the meeting or briefing, Hall sent TAC's members a copy

of Phelan's submission. (9)

On June 23, 2005, Eibeck met with Phelan, Phelan's father, and Kiesling to discuss

Phelan's grievance. Following their meeting, Eibeck anticipated Phelan would file suit

against Norville and Texas Tech. At Phillips's request, Eibeck drafted a response to

Phelan's grievance. On June 29, 2005, Eibeck circulated her draft response to Norville,

Phillips, Mellinger, and Hall. She requested they review her draft and comment whether

she sufficiently and appropriately addressed the issues.

In his response to Eibeck's request, Norville offered to submit his resignation if

Phelan would also tender his resignation and sign an agreement to suspend further legal

action against Norville and Texas Tech. In response to Eibeck's refusal to accept a letter

of resignation, Norville commented that he was not really ready to step down and just

"thought a little skullduggery might work." (10)

In the process of reviewing Eibeck's draft response to Phelan's grievance, Hall

realized many of Phelan's allegations seeking TAC's review of his non-reappointment were

also addressed in Eibeck's draft response to Phelan's grievance. She called Mellinger to

determine whether Texas Tech policy precluded her from presenting Eibeck's response

to TAC. Mellinger advised Hall if TAC wanted to review the document, there was no policy

preventing them from doing so because the tenure policy calls for TAC to make their own

rules on how information is gathered.

On June 29, 2005, TAC met to review Phelan's non-reappointment. The meeting

was attended by Sue Couch, Fred Suppe, Steve Sears, Lynn Huffman, Ben Shacklette,

and Hall. (11) Hall brought Eibeck's draft response, explained what the document was, and

advised TAC the document contained both relevant and nonrelevant information. She

asked whether they wanted to consider Eibeck's draft response or have the information

gathered through interviews or written responses. She also advised it was within TAC's

discretion to review Eibeck's draft response if they believed the document would assist

them in rendering their decision. TAC chose to review Eibeck's draft response. After

meeting for approximately thirty-five minutes, TAC unanimously upheld Phelan's non-reappointment. By letter dated August 12, 2005, Phelan submitted his resignation from Texas

Tech. On August 17, 2005, using his Texas Tech e-mail account, Phelan sent an e-mail

related to his resignation to faculty members and staff throughout the Department.

Phelan's e-mail accused Norville of publicly shouting at him, calling Phelan a "slave,"

slamming a door in his face, slapping him twice without warning, and intentionally

misrepresenting his performance to the Dean and other faculty. Phelan also announced

he intended to sue Norville. Rainwater responded and assured everyone that Phelan's

e-mail did not properly represent the complete story and indicated Phelan's e-mail

bordered on slander. Phelan responded truth was a defense to slander and they should

be aware they were not immune from slandering him.

Norville forwarded Phelan's e-mail to Mellinger and others to find out if Phelan's e-mail privileges at Texas Tech could be suspended and whether Norville should attempt

to seek an injunction to stop such comments in the future. Marcy forwarded the e-mail

to Sam Segran and asked him to determine the applicable Texas Tech procedures in

such a case and whether Phelan had an alternative ISP provider where they could forward

Phelan's e-mails. After some back and forth, Eibeck sent an e-mail to Segran, Mellinger,

and Marcy stating:

While Scott Phelan has technically resigned, in reality, he was given a

terminal contract (last day next May consistent with university policy) and

he chose to resign in response. He has threatened lawsuits and has sent

accusatory emails to all faculty and staff in the department. It is certainly

possible that he would use his e-raider account to continue this hostile

behavior as well as cause harm to the institution.

Hence, please disable Scott Phelan's e-raider account effective at the end

of this Friday, August 19, his last day of employment.

We do not know his personal email address and given his hostile behavior,

I don't want us to inform him in advance of this action for fear of damage

that could be done between now and when the account is closed. My office

will send a brief letter to his home address informing him that his emails will

be transferred to his personal email account as soon as he informs

someone in IT of the personal email account.

Segran responded Phelan's e-mail account would be disabled the next day per

Eibeck's request. Segran indicated disabling the account was "a prudent move to protect

university resources" and the "action [was] in line with other cases."

In the Fall of 2005, Norville received an e-mail from a third party expressing regret

for what was occurring in the Department because of Phelan's lawsuit. (12) The third party

asked why Phelan resigned, and on November 28, 2005, Norville responded as follows:

There were reasons beginning with the fact that after five (5) years, Dr.

Phelan had no journal publications. When I tried to get him to publish, his

response was nasty at best. Following that, I found out that Dr. Phelan was

not even writing reports to his research sponsor, TxDOT, and, hence hurt

TechMRT's chances of getting funded research. We can see what happens

for the summer, but I repeat that the salary will not even pay your air fare

alone.

In January of 2006, Phelan petitioned the district court for a pre-suit order to

depose numerous Texas Tech employees in order to investigate potential claims.

Thereafter, Phelan amended, and later supplemented, his petition to allege a myriad of

claims against Appellants and Victor Mellinger, based upon various legal theories (13)

relating to five general factual categories: (1) claims related to Phelan's assault

allegations, (2) claims related to his non-reappointment, (3) claims related to his TAC

appeal, (4) claims related to the termination of his e-mail account, and (5) claims related

to Norville's November 28, 2005 e-mail. The parties filed competing motions for summary

judgment. Without specifying any grounds, the trial court issued an order granting

Mellinger's motion for summary judgment, denied Appellants' motion for summary

judgment in part as to the assault claim asserted against Norville, and reserved ruling on

Appellants' motion as to all other claims asserted. Thereafter, again without specifying

any grounds, the trial court issued a second order denying the remainder of Appellants'

motion for summary judgment. Appellants then brought this appeal contending the trial

court erred in denying their motion for summary judgment on all claims asserted by

Phelan (except the assault claim asserted against Norville only) because the evidence

conclusively demonstrated Appellants acted (1) within the scope of their generally-assigned duties, (2) in exercising discretion and independent judgment, and (3) in good

faith, thereby entitling each Appellant to the protections of the official immunity defense. Standard of Review

We review the trial court's granting of a summary judgment de novo. Valence

Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). A review of the denial of a

motion for summary judgment where there is an assertion of official immunity is governed

by the same standard as governs review of the granting of such a motion. Welch v.

Milton , 185 S.W.3d 586, 593 (Tex.App.-Dallas 2006, no pet.).

Because official immunity is an affirmative defense, to obtain summary judgment

on official immunity, the governmental employee must conclusively prove each element

of the defense. Gray County v. Shouse, 201 S.W.3d 784 (Tex.App.-Amarillo 2006, no

pet.). A "matter is conclusively established if ordinary minds could not differ as to the

conclusion to be drawn from the evidence." McCartney, M.D. v. May, M.D., 50 S.W.3d

599, 604 (Tex.App.-Amarillo 2001, no pet.). Once the defendant meets this initial burden,

the plaintiff must submit or identify evidence in the record raising a genuine issue of

material fact as to the defense. Tex. R. Civ. P. 166a. A fact is "material," if it might affect

the outcome of the suit under governing law, and an issue is "genuine" if it is real and

substantial, as opposed to merely formal, pretended, or a sham. Bazan v. Hidalgo

County , 246 F.3d 481, 489 (5 th Cir. 2001).

We take as true all evidence favorable to the nonmovant while indulging every

reasonable inference and resolve any doubts in the nonmovant's favor. Sudan v. Sudan ,

199 S.W.3d 291, 292 (Tex. 2006). However, the nonmovant may not raise a genuine

issue of material fact by submitting conclusory allegations, unsubstantiated assertions,

improbable inferences, or unsupported speculation. See See First Union Nat. Bank v.

Richmont Capital Partners I, L.P., 168 S.W.3d 917, 930 (Tex.App.-Dallas 2005, no pet.). Official Immunity Defense

Common law official immunity is based on the necessity of public officials to act in

the public interest with confidence and without the hesitation that could arise from having

their judgment continually questioned by extended litigation. Ballantyne v. Champion

Builders, Inc. , 144 S.W.3d 417, 424 (Tex. 2004). Unlike sovereign immunity, the doctrine

of official immunity is not a bar to suit or a jurisdictional issue. See McCartney, M.D., 50

S.W.3d at 603 . Rather, the affirmative defense is a bar to liability and shields the party

claiming official immunity from individual liability for the claims asserted in the suit.

Telthorster v. Tennell , 92 S.W.3d 457, 460 (Tex. 2002).

To establish their right to summary judgment on official immunity, Appellants have

the initial burden to conclusively prove that the actions which form the basis for Phelan's

suit arise (1) from the performance of duties within the scope of their authority (2) that

were discretionary and (3) exercised in good faith. Gray County v. Shouse , 201 S.W.3d

784, 786 (Tex.App.-Amarillo 2006, no pet.) citing University of Houston v. Clark , 38

S.W.3d 578, 580 (Tex. 2000). In determining whether an official's summary judgment

evidence conclusively establishes the defense, we must determine whether there are

disputed facts material to its elements. Telhorster , 92 S.W.3d at 460-61 .

Once the official has established his entitlement to immunity as a matter of law, the

burden shifts to the plaintiff to show that " no reasonable person in the defendant's position

could have thought the facts were such that they justified defendant's acts." McCartney,

M.D., 50 S.W.3d at 605 (emphasis added) quoting City of Lancaster v. Chambers , 883

S.W.2d 650, 657 (Tex. 1994). It should be noted, however, that official immunity "may not

be rebutted by evidence that the defendant's conduct was malicious or otherwise

improperly motivated." Ballantyne, 144 S.W.3d at 427-28 .

1. Scope of Official's Authority

Public officials act within the scope of their authority if they are discharging the

duties generally assigned to them; Ballantyne, 144 S.W.3d at 425 , and the fact an act

that forms the basis of the suit was performed improperly or negligently does not take the

act outside of the scope of authority. Wethington v. Mann , 172 S.W.3d 146, 152

(Tex.App.-Beaumont 2005, no pet.).

Phelan contends Appellants acted outside the scope of their authority because they

engaged in acts Phelan alleged were wrongful. Phelan misconstrues this prong of the test

for official immunity. So long as Appellants were "discharging duties generally assigned

to them," they were acting in an official capacity. See Bagg v. University of Texas Medical

Branch at Galveston , 726 S.W.2d 582, 587 (Tex.App.-Houston [14 th Dist.] 1987, writ ref'd

n.r.e.). Phelan's reasoning was rejected by the Supreme Court in City of Lancaster v.

Chambers, 883 S.W.2d 650 (Tex. 1994), where the Court made clear that the focus is not

on whether the official had authority to perform an allegedly wrongful act, but on whether

the official is performing the duties generally assigned to him when the act occurs. Id. at

658 .

A. Norville

Norville's duties included evaluating Phelan's performance and tenure prospects.

As Phelan's primary supervisor, his authority also included making personnel

recommendations such as non-reappointment and informing Phelan that he had the

option of resigning or being terminated. Non-reappointment is an option department

chairs can exercise before tenure, and department chairs and deans are responsible for

hiring and retaining faculty. Norville was acting within the scope of his authority when he

engaged in acts related to Phelan's evaluation and non-reappointment. Furthermore,

Norville's involvement in Phelan's TAC appeal and grievance were administrative

responsibilities within the scope of his authority.

There is, however, no summary judgment evidence tending to establish whether

Norville was acting in an official capacity when he sent the e-mail dated November 28,

2005, to a non-university related third party stating, "Dr. Phelan had no journal

publications." Accordingly, we find that, with the exception of the e-mail dated November

28, 2005, competent summary judgment evidence established that Norville was acting

within the scope of his authority when he engaged in acts complained of by Phelan.

B. Eibeck

As Dean, Eibeck was responsible for the day-to-day operation of the College of

Engineering including reviewing and approving personnel matters. Her duties included

participating in Phelan's evaluation, non-reappointment, and TAC appeal. Furthermore,

Eibeck was acting within the scope of her authority when she recommended that Phelan's

Texas Tech e-mail account be disabled. Accordingly, we find that competent summary

judgment evidence established that Eibeck was acting within the scope of her authority

when she engaged in acts complained of by Phelan.

C. Hall

As Vice Provost, Hall was responsible for providing assistance to academic units

with regard to faculty hiring, budget information, and representation of the Provost to

various counsels and committees. As an ex-officio TAC member, Hall was responsible

for scheduling, providing TAC with information relevant to their deliberations and briefing

TAC on issues under consideration and Texas Tech policies and rules applicable to TAC's

deliberations and decisions. Therefore, Hall's presentment of Eibeck's draft response to

Phelan's grievance to TAC was within the scope of Hall's administrative responsibilities.

Furthermore, Hall handled issues related to all faculty affairs and she provided support

for committees serving in the tenure advisory role and reviewed draft documents to assure

the documents followed Texas Tech policy. The Provost's Office provided this service for

all deans and department chairs on issues related to tenure such as non-reappointments.

Accordingly, we find that competent summary judgment evidence established that Hall

was acting within the scope of her authority when she engaged in acts complained of by

Phelan.

Because the acts of Norville, Eibeck, and Hall at issue were within the duties

generally assigned to them, and because Phelan has not submitted or identified any

summary judgment evidence raising a genuine issue of material fact as to this element

of the official immunity defense, except the November 28, 2005 e-mail, Appellants have

satisfied the first prong as to all complained of acts, save and except that e-mail.

2. Discretionary v. Ministerial Acts

Official immunity extends to any action or decision by a state employee that is

"discretionary." Kassen, R.N. v. Hatley , 887 S.W.2d 4, 9 (Tex. 1994). Discretionary

functions receive protection while ministerial acts are unprotected. Id . An official duty or

function is discretionary if the action involves personal deliberation, decision, and

judgment. Ballantyne, 144 S.W.3d at 425-26 . However, the test to determine whether

a governmental employee's act is discretionary is not whether the employee has discretion

to perform an allegedly wrongful act, but whether the employee is performing a

discretionary function when committing that act. City of Lancaster , 883 S.W.2d at 654 .

Ministerial acts are "acts that the law prescribes and defines the duty to be

performed with such precision and certainty as to leave nothing to the exercise of

discretion or judgment." If the public official must obey an order, without having any

choice of complying, the act is ministerial. Id.

More than fifty years ago, the Supreme Court recognized a good faith immunity for

public officials charged with the discretionary duty of renewing or terminating teacher

employment contracts. Campbell v. Jones , 153 Tex. 101 , 264 S.W.2d 425, 427 (1954).

See also Dalrymple v. University of Texas System , 949 S.W.2d 395 , 400 n.2

(Tex.App.-Austin 1997) (noting that compilation of annual tenure evaluations of university

professors is discretionary because it involves personal deliberation, decisions, and

judgment) , rev'd in part on other grounds , Brewerton v. Dalrymple , 997 S.W.2d 212 (Tex.

1999). Furthermore, employment actions related to hiring and supervision are

discretionary. Dovalina v. Nuno , 48 S.W.3d 279, 282 (Tex.App.-San Antonio 2001, no

pet.).

A. Norville and Eibeck

Norville and Eibeck were engaging in a discretionary function when they

recommended and sought Phelan's non-reappointment. Prior to recommending Phelan's

non-reappointment, Norville and Eibeck assessed his performance and qualifications

before deliberating and reaching a decision Phelan was an unlikely candidate for

reappointment or tenure. Furthermore, Eibeck was involved in a discretionary act when

she recommended that Phelan's Texas Tech e-mail account be disabled.

B. Hall

Hall's presentment of Eibeck's draft response to Phelan's grievance to TAC was

also a discretionary act. She was not required to present the document to TAC by any

Texas Tech policy, procedure, or order of the Provost. Rather, in the process of

assessing whether Eibeck's response complied with Texas Tech's policies and

procedures, Hall recognized many of the issues raised by Phelan in TAC's review of his

non-reappointment were addressed by Eibeck in her draft response to his grievance.

Based on her review, she made a determination the document was relevant to TAC's

deliberations. She then consulted with Texas Tech counsel Mellinger to obtain his opinion

before exercising her discretion to present the document to TAC. Thus, Hall's decision

to present the document to TAC required deliberation, decisions, and judgment.

Phelan offers nothing to rebut Appellants' summary judgment evidence except

conclusory statements that an act cannot be discretionary when it is libelous, slanderous,

or in violation of an employee's privacy rights. Because Phelan has not submitted or

identified any summary judgment evidence raising a genuine issue of material fact as to

this element of the official immunity defense, Appellants have satisfied the second prong.

3. Good Faith

To determine whether a public official acted in good faith, we apply an objective

standard and inquire whether a reasonably prudent official, under the same or similar

circumstances, could have believed that his conduct was justified based on the

information he possessed at the time of the act. Ballantyne, 144 S.W.3d at 426 . To be

entitled to summary judgment, an official must prove that a reasonably prudent official

might have believed the action taken was appropriate, not that it would have been

unreasonable to take different action or that all reasonably prudent officials would have

acted as he or she did. Perry v. Greanias , 95 S.W.3d 683, 697 (Tex.App.-Houston [1 st

Dist.] 2002, pet. denied) citing Wadewitz v. Montgomery , 951 S.W.2d 464, 467 (Tex.

1997).

The standard of good faith as an element of official immunity is not a test of

carelessness or negligence, legality, or a measure of an official's motivation. Ballantyne,

144 S.W.3d at 426-27 ; Texas State Technical College v. Cressman , 172 S.W.3d 61, 67

(Tex.App.-Waco 2005, pet. denied), Titus Regional Medical Center v. Tetta , 180 S.W.3d

271, 276 (Tex.App.-Texarkana 2005, no pet.). Official immunity protects "all but the

plainly incompetent or those who knowingly violate the law." McCartney, M.D., 50 S.W.3d

at 605 , quoting City of Lancaster , 883 S.W.2d at 656 . Evidence concerning the

defendant's subjective intent is simply irrelevant to that defense. Ballantyne, 144 S.W.3d

at 428 , quoting Crawford-El v. Britton , 523 U.S. 574, 588 , 118 S.Ct. 1584 , 140 L.Ed.2d

759 (1998).

An official's good faith may be established by the official's own affidavit. Zuniga

v. Navarro & Associates, P.C. , 158 S.W.3d 663, 672 (Tex.App.-Corpus Christi 2005, pet.

denied). However, that testimony will support summary judgment only "if the evidence is

clear, positive and direct, otherwise credible and free from contradictions and

inconsistencies, and could have been readily controverted." Tex. R. Civ. P. 166a(c);

Wadewitz, 951 S.W.2d at 466-67 .

In Texas, continued employment generally depends upon the will of the employer.

Jordan v. Jefferson County , 153 S.W.3d 670, 674 (Tex.App.-Amarillo 2004, pet. denied).

As a general rule, a faculty member's employment is subject to their contract and the

school's operational policies. Bowen v. Calallen Independent School District , 603 S.W.2d

229, 233 (Tex.Civ.App.-Corpus Christi 1980, writ ref'd n.r.e.). Unless there is a specific

agreement to the contrary that dictates otherwise, a faculty member can be released for

"good reason, bad reason, or no reason." Id. Here, Texas Tech's policies, procedures

and rules clearly established that Phelan's nontenured appointment was an at-will

employment pursuant to annual appointments that expired by their own terms. See

Turner v. Joshua Independent School District, 583 S.W.2d 939, 942 (Tex.Civ.App.-Waco

1979, no writ).

Moreover, Texas does not recognize implied teaching contracts. See Burris v.

Willis Independent School District, Inc. , 713 F.2d 1087, 1090-91 (5 th Cir. 1983). Contrary

to Phelan's assertions, the mere fact he had been rehired each year for a period of years

does not constitute evidence Texas Tech had impliedly contracted with him to renew his

contract every year. See Hix v. Tuloso-Midway Independent School District , 489 S.W.2d

706, 710 (Tex.Civ.App.-Corpus Christi 1973, writ ref'd n.r.e.). And, where a university has

published written procedures governing tenure such as Regents' Rules, Faculty Handbook

and Operating Procedures, the legitimacy of a claim to tenure acquired outside the

procedures is vitiated because there is no basis for mutuality. LaVerne v. University of

Texas Systems , 611 F.Supp. 66, 69 (D.C. Tex. 1985) (unless otherwise provided for in

university rules, there is no "common law" tenure, de facto tenure, or tenure by default).

A. Norville and Eibeck

Norville and Eibeck acted in good faith when they engaged in acts relating to

Phelan's evaluation and non-reappointment. Likewise, Norville and Eibeck could not have

acted in bad faith by depriving Phelan of due process because he received all the due

process to which he was entitled. Under Texas Tech's rules on non-reappointment,

Phelan was entitled to notice and the issuance of a terminal contract for one academic

year. He received both. And, at his request, he received review of his non-reappointment

by a faculty committee or TAC. Moreover, simply because Texas Tech provided some

procedure for faculty that are non-reappointed does not mean Texas Tech intended to

expand by implication the employment rights of a faculty member who is non-reappointed

beyond those set forth in the Regents' Rules. See Wells v. Hico Independent School

District , 736 F.2d 243, 254-55 (5 th Cir. 1984), cert. dism'd, 473 U.S. 901 , 106 S.Ct. 11 , 87

L.Ed.2d 672 (1985). Accordingly, Norville and Eibeck did not illegally deprive Phelan of

any due process rights related to his non-reappointment or subsequent review by TAC.

Nor did Eibeck act in bad faith when she used the words "creep" or "dysfunctional"

in her e-mail to Norville. The question of whether an alleged defamatory statement is

reasonably capable of a defamatory meaning is a question of law. Musser v. Smith

Protective Services, Inc. , 723 S.W.2d 653, 654 (Tex. 1987). The statement is construed

as a whole, in light of the surrounding circumstances, based upon how a person of

ordinary intelligence would perceive the statement. Turner v. KTRK Television, Inc., 38

S.W.3d 103, 114 (Tex. 2000). Bearing in mind that an expression of opinion is protected

free speech, we determine whether the statements in question are merely expressions of

opinion or actionable assertions of fact. Simmons v. Ware , 920 S.W.2d 438, 446

(Tex.App.-Amarillo 1996, no writ).

From the text of her e-mail, it is clear that Eibeck is using the word "creep" in a

figurative sense to convey her criticism that Norville's statement needed to focus more on

Phelan's performance and less on Phelan's behavior. In stating that Phelan's actions

"reflect dysfunctional behavior," Eibeck is expressing an opinion in the popular sense as

opposed to a clinical sense, and as such, is not a statement of fact. Shaw v. Palmer , 197

S.W.3d 854, 857-58 (Tex.App.-Dallas 2006, pet. denied) (statements that plaintiff was

crazy, incompetent, and attempting to ruin the business held not defamatory).

Phelan further asserts that Eibeck acted in bad faith when she wrote, in support of

her recommendation that Phelan's Texas Tech e-mail account be disabled, that Phelan

had engaged in "hostile behavior." Given the surrounding circumstances, i.e. Phelan had

only just sent a detailed accusatory e-mail to faculty and staff throughout the Department,

followed by a second e-mail containing a veiled threat to sue other faculty members,

Eibeck's statement was reasonable and justified. Moreover, Eibeck's statement was

protected opinion, not a defamatory statement. Accordingly, Eibeck acted in good faith

when she recommended that Phelan's Texas Tech e-mail account be disabled.

B. Hall

Phelan contends Hall acted in bad faith when she presented Eibeck's draft

response to Phelan's grievance to TAC and hand-picked TAC members who reviewed

and upheld his non-reappointment. Phelan asserts Hall violated Texas Tech rules and

procedures governing review of his non-reappointment when Hall presented Eibeck's draft

response to TAC.

Hall's presentation of Eibeck's draft response to TAC is not prohibited by Texas

Tech's rules or procedures. See supra note 8. In fact, there are no limitations on the

evidence that may be submitted or considered by TAC. Id . Furthermore, she acted

responsibly when she sought advice from Texas Tech's counsel prior to presenting the

document to TAC. We also reviewed the record and found no evidence that Hall "hand-picked" any of TAC's members. In fact, Texas Tech's rules require TAC's members to be

elected at-large by tenured faculty. Phelan has produced no evidence that such an

election did not take place. Therefore, we conclude Hall acted in good faith when she

presented Eibeck's draft response to Phelan's grievance to TAC.

Because Phelan has not submitted or identified any summary judgment evidence

raising a genuine issue of material fact as to this element of the official immunity defense,

Appellants have satisfied the third and final prong of official immunity. Accordingly,

Appellants' sole issue is sustained in part and overruled in part.

Conclusion

Accordingly, we affirm the trial court's interlocutory order denying summary

judgment in favor of Norville on Phelan's claim for libel and/or slander based upon the

November 28, 2005 e-mail, reverse the trial court's order denying summary judgment in

favor of Appellants on all Phelan's remaining claims, and hereby render judgment granting

Appellants' motion for summary judgment that Phelan take nothing as to those remaining

claims.

Patrick A. Pirtle

Justice

1. Norville does not appeal the trial court's denial of summary judgment in his favor

on Phelan's assault claim.

2. Under Texas Tech's Operating Policies and Procedures and Regents' Rules, the

general criteria for tenure include an evaluation of a faculty member's abilities related to

teaching, research/creative ability, and professional service. The tenure candidate is

responsible for detailing his accomplishments in a dossier and obtaining the

recommendation of the basic academic unit. Afterwards, there is a detailed procedure of

review starting with the College or School, then by the Provost/Senior Vice President of

Academic Affairs, next by the President, and finally the Board of Regents.

3. In deposition, Phelan's counsel asked Provost William Marcy to comment on

Phelan's mid-tenure review. Marcy indicated that, if he were presented with the review for

a tenure determination, he would not approve it. He found Phelan's mid-tenure review to

be deficient because Phelan was "first author" on only one of the three peer-reviewed

journal publications. Marcy indicated Phelan needed to be the first author on at least five

or six. He commented Phelan's problems with journal publications would be a

"showstopper" for tenure.

4. Hall's duties consisted of providing assistance for academic units with regard to

faculty hiring, budget information, and representation of the Provost to various councils and

committees. She was an ex-officio member of the Tenure Advisory Committee, and

advised faculty on tenure issues. Although Hall has subsequently married and changed

her last name to Burns, we refer to her as Hall throughout this opinion.

5. In her affidavit, Eibeck indicated that the e-mail was intended to have Norville

modify his statement to focus more on Phelan's performance and less on Phelan's

behavior.

6. Marcy and Eibeck also executed a Personnel Action Form (PAF) effective May 31,

2005, indicating Phelan was to continue in his previous appointment as an Assistant

Professor until May 31, and then serve full-time as a Research Assistant Professor until

June 30. His new appointment would be a terminal appointment as an Assistant Professor

from September 1, 2005 until May 31, 2006. The PAF was delivered to Phelan with

Eibeck's letter.

7. Per the Regents' Rules, the members of the Faculty Committee can be appointed

from within or outside the membership of the TAC. TAC consists of five tenured faculty

members and two ex-officio members, the Provost, and a dean selected by the Provost's

Council. Both TAC and the Faculty Committee determine their own rules of procedure.

8. The faculty grievance procedure set forth in Texas Tech OP 32.05 and TAC's

review of a non-reappointment set forth in Regents' Rule 04.02.8, are separate

proceedings. OP 32.05 1.b. states "[i]f the grievance is related in any way to tenure

decisions, the faculty member should refer to the Texas Tech University tenure policy," and

"[g]rievances of faculty relating to admission of tenure, grounds for termination, termination

procedure, and notice of non-reappointment or termination are not to be covered by the

procedures noted below." Neither the grievance procedures nor Regents' Rules contain

any prohibition against the sharing of information or documents between the Grievance

Committee and TAC or their appointees in the event of simultaneous proceedings on

related subject matter or under any circumstances. Moreover, the sole limitation on

evidence presented in a grievance proceeding is the evidence "must relate to the

grievance." OP 32.05 4.c. Regents' Rule 04.02.8 contains no limitation on evidence that

may be submitted or reviewed by TAC.

9. Phelan contends Hall purposely provided TAC with a blackened, blurred,

unreadable copy of the Mid-tenure Review letter dated October 29, 2004, to obscure any

favorable comments related to Phelan's performance. Appellants attached a copy of the

letter reviewed by TAC as an exhibit to their motion for summary judgment.

10. On deposition, Norville described "skullduggery" as "working behind the scenes."

11. With the exception of Ed Steinhart, all members of the Committee were present.

Shacklette left the meeting early and did not vote. TAC has no rules related to quorums.

12. The lawsuit being referenced was not this lawsuit. Phelan had filed a

"whistleblower" suit against Texas Tech University on August 23, 2005.

13. Phelan's theories of recovery included assault, libel and/or slander, invasion of

privacy, conspiracy and/or aiding and abetting to tortiously interfere with his employment

contract and/or future employment, and denial of due process and/or conspiracy to deny

his due process rights.