Fox v. Parker

• Decision Date: 15 January 2003
• Docket Number: No. 10-99-370-CV.,10-99-370-CV.
• Citation: 98 S.W.3d 713
• Parties: John FOX, Appellant, v. Judy PARKER and Baylor University, Appellees.
• Court: Texas Court of Appeals

98 S.W.3d 713

John FOX, Appellant, v. Judy PARKER and Baylor University, Appellees.

No. 10-99-370-CV.

Court of Appeals of Texas, Waco.

January 15, 2003.

Rehearing Overruled March 12, 2003.

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Lanelle L. McNamara, McNamara & McNamara, Joe Olson, Waco, for Appellant.

Les Palmer and Alfred Mackenzie, Haley & Davis, P.C., Larry 0. Brady and Stuart Smith, Naman, Howell, Smith & Lee, P.C., Waco, for Appellees.

Before Chief Justice DAVIS, Justice VANCE, and Justice CUMMINGS.

OPINION

BILL VANCE, Justice.

This is an employment dispute. John Fox, a professor at Baylor University whose tenure was threatened, first sued one of the witnesses against him for defamation. After his employment was terminated, he also sued Baylor for defamation and added a claim for breach of contract, asserting that Baylor did not properly follow its termination procedures.

Several witnesses in Fox's jury trial testified that, while on a university-sponsored summer field trip in 1996 to an anthropological site in Guatemala, he — often while under the influence of alcohol — on numerous occasions initiated inappropriate and uninvited physical contact of a sexual nature with female students and also made crude sexual comments to them. One student on the trip, Shannon Mackay, reported the alleged incidents to the administration of Baylor where Fox, a tenured professor in the anthropology department, had been employed for twenty years. Baylor conducted an investigation and decided that the allegations against Fox were true. Before beginning termination proceedings, however, Baylor offered to continue Fox's employment if he would accept sanctions in the form of a demotion, a written apology, counseling, and dismissal of a defamation lawsuit he had filed against one of the complaining students. Fox refused. The matter was referred to the Faculty Tenure Committee ("Tenure Committee") which decided that the evidence warranted a termination hearing. Later, after a three-day hearing, the Tenure Committee recommended to Baylor's President that Fox's employment be terminated; the President concurred, and Fox was discharged.

Earlier, when Fox learned that Baylor was conducting an investigation, he sued one of the witnesses against him, Judy Parker, for defamation on the basis that her statements to Baylor made during the investigation were untrue. After his termination, Fox joined Baylor as a defendant, alleging breach of his employment contract: he claimed that the investigation and hearing had not been conducted according to procedures contained in Baylor's personnel policies, which were part of his employment contract. He also alleged that Baylor had defamed him by its actions which led to information about the termination proceedings being disclosed to the public. In addition, he added an allegation that Parker defamed him by making false statements during the termination hearing. After a four-week trial, a jury returned its verdict, finding:

• Baylor failed to comply with its contract with Fox.

• Fox did not "waive" Baylor's obligations under the contract.

• Fox's damages were $153,788 for lost wages and employment benefits in the past and in the future.

• Baylor did not make defamatory statements about Fox.

• Parker did not make defamatory statements about Fox.

The court rendered judgment for Fox and against Baylor for contract damages in the amount of $153,788 plus $32,295.48 in prejudgment interest.

Fox appeals on twenty-one issues, complaining inter alia that the amount of damages the jury awarded was inadequate. In three cross-issues, Baylor asserts the evidence is legally insufficient to support the jury's finding that Baylor did not comply with the terms of the employment contract. Based on our analysis of Baylor's cross-issues, we will reverse the judgment and render a take-nothing judgment against Fox. Because of that, we do not reach many of his issues.

I. BAYLOR'S LEGAL-SUFFICIENCY ISSUES

Fox alleged that Baylor breached the employment contract by failing to comply with procedures — all part of his employment contract — in three areas. He says: (1) procedures setting forth the mechanism for termination of a tenured professor were either not followed or inadequately followed; (2) procedures setting forth the method of investigating allegations of sexual harassment were not followed; and (3) procedures on employee confidentiality were not followed. The court submitted a single jury question without any instructions: "Did Baylor University fail to comply with its employment contract prior to terminating John Fox's employment with Baylor?"

Baylor's complaint rests on this reasoning:

• Fox's employment contract is unambiguous as to procedures which apply to terminations.

• Many of the procedures relied on by Fox are not ones to which Baylor was bound.

• The evidence shows that the procedures which do apply were thoroughly followed.

• Therefore, there is no evidence to support the jury's finding that Baylor did not comply with the employment contract.

A. Standards of Review

Legal sufficiency of the evidence

When the party complaining of legal insufficiency did not have the burden of proof at trial, we conduct our review by considering only that evidence and the inferences therefrom which support the finding, considered in the light most favorable to the finding, and disregarding contrary evidence and inferences. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995); Holt Atherton Industries, Inc. v. Heine, 835 S.W.2d 80, 84 (Tex.1992). We can find the evidence legally insufficient if: (1) there is a complete absence of evidence for the finding, (2) there is evidence to support the finding, but rules of law or evidence bar the court from giving any weight to the evidence, (3) there is no more than a mere scintilla of evidence to support the finding, or (4) the evidence conclusively establishes the opposite of the finding. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997) (citing Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX. L.REV. 361, 362-63 (1960)); Juliette Fowler Homes, Inc. v. Welch Assoc., Inc., 793 S.W.2d 660, 666 n. 9 (Tex. 1990). "More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, `rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" Burroughs Wellcome, 907 S.W.2d at 499 (quoting Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994)). If the evidence is so weak as to do no more than create a mere surmise or suspicion of the finding's existence, the effect is that there is legally-insufficient evidence. Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 182 (Tex.1995).

Construing a contract

Whether a contract is ambiguous is a question of law for the court. Heritage Resources, Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996). If a contract is not ambiguous, the rights and obligations under the agreement are also determined as a matter of law. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.1997). Therefore, we review these issues de novo.

An unambiguous contract is construed according to the plain meaning of its express wording. Lyons v. Montgomery, 701 S.W.2d 641, 643 (Tex.1985); Kahn v. Seely, 980 S.W.2d 794, 797 (Tex.App.-San Antonio 1998, pet. denied). But the court must "look[] at the contract as a whole in light of the circumstances present when the contract was entered." Nat. Union Fire Ins. v. CBI Industries, 907 S.W.2d 517, 520 (Tex.1995). Each part of the contract is considered against all other parts to determine its meaning, and there is a presumption that the parties intended every part to have some effect. Heritage Resources, 939 S.W.2d at 121. Terms used in the contract have their "plain, ordinary, and generally accepted meaning unless the [contract] shows that the parties used them in a technical or different sense." Id. Unambiguous contracts are enforced as written. Id.¹

But if the express wording is subject to two or more reasonable interpretations, the contract is ambiguous. CBI Industries, 907 S.W.2d at 520; Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). "Patent" ambiguities are those which are apparent from the face of the contract. CBI Industries, 907 S.W.2d at 520. "Latent" ambiguities arise when an apparently unambiguous contract is applied to its subject matter and an ambiguity appears. Id. If the court finds that a contract is ambiguous, either patently or latently, the goal then is to determine the true intentions of the parties, for that will resolve the ambiguity. Id.; Coker, 650 S.W.2d at 393; Kahn, 980 S.W.2d at 797. This determination involves fact issues. Columbia Gas Trans. Corp. v. New Ulm Gas, 940 S.W.2d 587, 589 (Tex.1996) (citing Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157 (1951)). Parol evidence may be introduced to discern the parties' intent. CBI Industries, 907 S.W.2d at 520. In a jury trial, the resolution of the parties' intent is assigned to the jury. See Sage Street Associates v. Northdale Const. Co., 863 S.W.2d 438, 445 (Tex.1993); John Wood Group USA, Inc. v. ICO, Inc., 26 S.W.3d 12, 16 (Tex.App.-Houston [1st Dist.] 2000, pet. denied).

B. Termination Procedures

Most of the evidence at trial pertained to termination procedures. The parties vigorously contested which ones applied and whether those were followed.

Procedures asserted by Fox

Fox was granted tenure in 1983. At that time, and thereafter, there were written procedures for terminating a tenured professor. The parties agree that these were incorporated into Fox's employment contract. One of these is policy 704, which in 1983 stated that a tenured faculty member cannot be terminated "unless adequate cause for dismissal is demonstrated in a fair hearing, following established procedures of due process."...