Aldridge v. De Los Santos

Decision Date26 May 1994
Docket NumberNo. 13-93-335-CV,13-93-335-CV
Citation878 S.W.2d 288
Parties92 Ed. Law Rep. 727 James W. ALDRIDGE, Jr., et al., Appellants, v. Gilberto DE LOS SANTOS, et al., Appellees.
CourtTexas Court of Appeals

Toni Hunter, Asst. Atty. Gen., Chief, Gen. Litigation Div., David J. Guillory, Asst. Atty. Gen., Gen. Litigation Div., Austin, Joseph R. Preston, Clark & Preston, P.C., Mission, Gary Henrichson, Edinburg, Larry R. Daves, San Antonio, Dan Morales, Atty. Gen., Will Pryor, First Asst. Atty. Gen., Mary F. Keller, Deputy Asst. Atty. Gen., Jorge Vega, First Asst. Atty. Gen., Austin, Roger W. Hughes, Adams & Graham, Harlingen, for appellants.

James A. Kosub, San Antonio, Daniel Maeso, Asst. Dist. Atty., Jourdanton, Juan Chavira, Asst. Dist. Atty., Karnes City, for appellees.

Before SEERDEN, C.J., and GILBERTO HINOJOSA and FEDERICO G. HINOJOSA, Jr., JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

This is an interlocutory appeal from an order denying appellants' motion for summary judgment. Appellants were defendants in the trial court.

In 1989, the 71st Legislature passed an Act abolishing the Board of Regents of Pan American University (a state university) and transferring the "governance, operation, management, and control of Pan American University ... from the Board of Regents of Pan American University to the Board of Regents of The University of Texas System." Act of May 10, 1989, 71st Leg., R.S., ch. 181, 1989 Tex.Sess.Law Serv. 820 (Vernon). The Act took effect on September 1, 1989. Id. at 823.

Appellees, Gilberto De Los Santos, Wig B. De Moville, Walter E. Greene, Dewayne L. Hodges, and Anthony George Petrie, were professors in the School of Business Administration (SBA) at Pan American University (PAU) prior to September 1, 1989. After September 1, 1989, appellees continued working as professors at The University of Texas--Pan American (UTPA).

Appellees sued thirty-seven colleagues at the university, claiming defamation, tortious interference with contract, and negligent infliction of emotional distress. By a single point of error, appellants complain that the trial court erred by denying their motion for summary judgment because, as employees of the State of Texas, they have official immunity 1 against appellees' claims.

The record reflects that in early 1989, PAU School of Business Administration Dean F.J. Brewerton appointed appellees to serve on a Merit Improvement Committee (MIC) to review the merit pay system in the School of Business Administration. On June 30, 1989, after initiating a "fact-finding" inquiry into the publications of five SBA faculty members, the members of the MIC concluded that two of their colleagues, Dr. Charles Ellard and Dr. Daniel Lee, were exaggerating their publication credits and recommended that they be fired for "moral turpitude." On July 28, 1989, Dean Brewerton recommended to PAU President Miguel Nevarez that the two tenured professors' employment be terminated. On July 28, 1989, PAU Vice President for Academic Affairs Ronald Applebaum concurred in Dean Brewerton's recommendation. On August 2, 1989, President Nevarez appointed a Hearing Tribunal to investigate the case in accordance with the termination procedures mandated by the Rules and Regulations of the University of Texas System, even though Pan American University was not yet a part of the University of Texas System. 2 On August 24, 1989, the faculty of the College of Arts & Sciences of PAU, concerned by "the magnitude of the accusations" against fellow tenured faculty members, voted unanimously to request the PAU Faculty Senate to conduct an investigation into the MIC's activities. The Faculty Senate is an official university body elected by and composed of representative faculty members. The Faculty Senate appointed a Faculty Senate Investigating Committee, which, on August 30, 1989, began investigating the MIC's activities.

On September 1, 1989, Pan American University became The University of Texas--Pan American. On September 27, 1989, the first part of the Faculty Senate Investigating Committee report was released and discussed at the UTPA Faculty Senate meeting of October 4, 1989. The second part of the committee's report was discussed at the Senate meeting of November 1, 1989. A joint committee composed of the Faculty Senate Investigating Committee and the Faculty Senate Executive Committee subsequently recommended that the Senate postpone any action on the Ellard/Lee issue until the Hearing Tribunal had completed its investigation. The Faculty Senate agreed with the joint committee's recommendation.

On May 14, 1990, the Hearing Tribunal issued its findings. The Tribunal rejected the MIC's recommendations that Ellard's and Lee's employment be terminated and concluded that the MIC had acted beyond its permitted office. The Tribunal's report stated:

CONCLUSION: The MIC did not treat Professor Ellard in a fair and collegial manner during its investigations. And the MIC based its recommendation to terminate Professor Ellard upon a narrow and uninformed interpretation of general academic standards.

CONCLUSION: The MIC did not treat Professor Lee in a fair and collegial manner during its investigations. And the MIC based its recommendation to terminate Professor Lee upon a narrow and uninformed interpretation of general academic standards.

The Tribunal's report was released to the Faculty Senate on September 12, 1990. On September 19, 1990, the Faculty Senate, having considered the Tribunal's findings, passed a resolution censuring the members of the MIC for actions unbecoming members of the professorate. The Faculty Senate censured appellees for:

Failing to treat their colleagues in a fair and collegial manner during the MIC's investigation. The MIC exceeded the limits of its legitimate functions, failed to allow a tenured full professor sufficient time to prepare his defense against a recommendation for termination, and imposed its interpretation of unwritten academic standards on the proceedings. In so doing, the MIC displayed a lack of collegiality and fundamental fairness.

The Faculty Senate also censured Dean Brewerton and Vice-President Applebaum "for conduct unbecoming a member of the professorate" and reprimanded President Nevarez "for failing to exercise proper oversight."

On September 20, 1990, an article appeared in the Harlingen newspaper, The Valley Morning Star, which quoted then Senate Chair Jerry Polinard saying that the investigation was "distasteful" and that "it should have never occurred." Jim Aldridge, Secretary-Treasurer of the Texas Faculty Association, also commented on the Tribunal's findings and the Senate vote. Polinard subsequently wrote a letter to the editor of the UTPA newspaper, The Pan American, discussing the Ellard/Lee investigation and subsequent censure of the members of the MIC.

On September 18, 1991, appellees filed suit against twenty-one members of the 1990 Faculty Senate and four members of the Faculty Senate Investigating Committee. They also sued twelve other faculty members. Appellees claim 1) that appellants knew that their statements that appellees were "unfair and uncollegial" were false, 2) that appellants acted with reckless disregard as to whether the statements were true or not true, 3) that appellants' defamatory remarks were made in their individual capacities and outside the course and scope of their employment with UTPA, 4) that appellants acted with malice in publishing those statements, and 5) that in the process of publishing those statements, appellants interfered with appellees' contractual relationships and negligently caused emotional distress.

Appellees filed a First Amended Original Petition on December 9, 1991. Appellants answered with special exceptions and a general denial. Appellants also filed a plea in abatement, alleging that appellees had failed to state acts which would overcome appellants' official immunity. On March 5, 1992, the trial court granted appellants' plea in abatement. Appellees asked the trial court to reconsider its ruling, and on July 31, 1992, the trial court reversed itself and denied appellants' plea in abatement.

Appellants subsequently filed a joint motion for summary judgment, based on the following grounds:

1) that appellants are entitled to official or quasi-judicial immunity because 1) they are all public employees of the State of Texas, 2) appellants' actions involved consideration of facts gathered during an investigation and the exercise of judgment based on those facts, and 3) appellants' actions were made in good faith and were wholly within the scope of their authority;

2) that the twelve faculty members who were neither members of the 1990 Faculty Senate nor the Faculty Senate Investigating Committee are entitled to official immunity because 1) they are public employees of the State of Texas and 2) appellees made no claim or allegation that these faculty members acted in bad faith or took any action outside the scope of their employment;

3) that appellees failed to state a cause of action for defamation, tortious interference with contract, and negligent infliction of emotional distress;

4) that the alleged defamatory remarks were true, merely expressions of opinion on a matter of concern to university faculty, or privileged;

5) that the alleged defamatory statements, as expressions of opinion, are protected under the free speech guarantees of both the federal and state constitutions; and

6) that appellees voluntarily injected themselves into an extremely controversial activity and, thus, are vortex public figures.

On June 9, 1993, after hearing argument and considering the evidence, the trial court denied the motion for summary judgment. Appellants appeal from the trial court's order denying the motion for summary judgment.

A motion for summary judgment must expressly state the grounds upon which it is made. McConnell v. Southside...

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