Hupp v. Sasser

• Decision Date: 17 July 1997
• Docket Number: No. 23346,23346
• Citation: 200 W.Va. 791,490 S.E.2d 880
• Court: West Virginia Supreme Court
• Parties: , 121 Ed. Law Rep. 382 Fred E. HUPP, Appellee, v. Emery L. SASSER, Susan Bohna, Defendants Below, University of West Virginia Board of Trustees, Defendant Below, Appellant.

Page 880

490 S.E.2d 880

200 W.Va. 791, 121 Ed. Law Rep. 382

Fred E. HUPP, Appellee, v. Emery L. SASSER, Susan Bohna, Defendants Below University of West Virginia Board of Trustees, Defendant Below, Appellant.

No. 23346.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 29, 1997.

Decided July 17, 1997.

Syllabus by the Court

1. "The essential elements for a successful defamation action by a private individual are (1) defamatory statements; (2) a nonprivileged communication to a third party; (3) falsity; (4) reference to the plaintiff; (5) at least negligence on the part of the publisher; and (6) resulting injury." Syl. Pt. 1, Crump v. Beckley Newspapers, Inc., 173 W.Va. 699, 320 S.E.2d 70 (1983).

2. "A court must decide initially whether as a matter of law the challenged statements in a defamation action are capable of a defamatory meaning." Syl. Pt. 6, Long v. Egnor, 176 W.Va. 628, 346 S.E.2d 778 (1986).

3. "A statement of opinion which does not contain a provably false assertion of fact is entitled to full constitutional protection." Syl. Pt. 4, Maynard v. Daily Gazette Co., 191 W.Va. 601, 447 S.E.2d 293 (1994).

4. "This court will not review or reverse a decree or order of the circuit court, or any part thereof, not appealed from." Syl. Pt. 3, Sulzberger & Sons Co. v. Fairmont Packing Co., 86 W.Va. 361, 103 S.E. 121 (1920).

5. "A 'property interest' includes not only the traditional notions of real and personal property, but also extends to those benefits to which an individual may be deemed to have a legitimate claim of entitlement under existing rules or understandings." Syl. Pt. 3, Waite v. Civil Service Commission, 161 W.Va. 154, 241 S.E.2d 164 (1977).

William C. Garrett, Gassaway, Joyce Morton, Van Nostrand & Morton, Webster Springs, for Appellee.

Bruce A. Kayuha, Rose, Padden & Petty, Morgantown, for Appellant.

PER CURIAM:

The University of West Virginia Board of Trustees ("University") appeals from the Circuit Court of Monongalia County's denial of its motions for directed verdict and for judgment notwithstanding the verdict in a civil suit brought against it by Appellee Fred E. Hupp, a former graduate student, that involved allegations of defamation, breach of contract, and denial of due process. The University assigns as error the trial court's failure to rule that the alleged defamatory statements lacked defamatory content, that it did not publish any communication defaming Mr. Hupp, and that the communications were privileged. Also assigned as error are the trial court's failure to rule that Mr. Hupp had no constitutionally protected property interest in reappointment as a graduate teaching assistant and the trial court's failure to rule that if such a property interest did arise, Mr. Hupp received due process with regard to the complaints against him. ¹ Upon a review of the record, we determine that the circuit court erred by failing to direct a verdict in the University's favor on Appellee Hupp's defamation claim based on the lack of defamatory content contained in those statements. Because we determine that Mr. Hupp did not have a constitutionally protected property interest in reappointment, we further find that the lower court erred in not granting the University's motion for directed verdict on the issue of due process. The verdict is upheld on the breach of contract issue as no assignment of error was raised with regard to it.

The University hired Mr. Hupp as a graduate assistant for its school of journalism for the spring semester of 1992. During the course of the semester, Emery Sasser, the dean of the journalism school, received several complaints from undergraduate students regarding Mr. Hupp's alleged unprofessional and intimidating behavior toward them. Additional complaints regarding Mr. Hupp were received by Thomas Sloane, then assistant dean of student life. Susan Bohna, an instructor in the journalism school, both received complaints regarding Mr. Hupp and was the recipient of Mr. Hupp's abusive behavior. Complaints regarding Mr. Hupp's behavior were also submitted in the form of anonymous student evaluations.

Mr. Hupp was confronted with the complaints against him in a meeting with Dean Sasser and Jon Reed, general counsel for the University, on April 21, 1992. Mr. Hupp acknowledges that, during the course of this meeting, he was apprised of the fact that students had complained of his bullying and abusive behavior towards them; that two females had complained of unwanted touching and fear of being alone in the classroom with him; and that students had complained of threats made in connection with their grades, his use of vulgar language, and his acting generally in an unprofessional manner. He was not apprised, however, of the identity of the complaining students.

Despite Dean Sasser's serious reservations regarding Mr. Hupp's continuation as a graduate assistant for the Fall 1992 semester, he was offered such a position ² upon "the strict condition: [that] [a]ny creditable complaint of vulgarity, acts of intimidation, bullying or unprofessional behavior toward students, faculty or staff of the School of Journalism will result in the immediate termination of your employment as a graduate assistant." Mr. Hupp refused to sign a written offer, dated July 31, 1992, which contained this condition, based on his position that by signing the document he would have been admitting to certain infractions. Mr. Hupp replied to Dean Sasser that he had been advised by his attorneys not to sign the offer, that he had and would continue to "redouble ... [his] efforts to be sensitive to the needs of my students[,]" but that he wanted to be treated similar to every other graduate assistant "with regard to normal critiques and suggestions for improvements." Dean Sasser reworded the terms of the offer to Mr. Hupp in a memorandum dated August 28, 1992, modifying the conditional language to state that "you will give particular attention and effort toward maintaining appropriate and professional behavior and attitude in the performance of your duties and in your dealings with others during the assistantship." Mr. Hupp refused to sign this second written offer of employment and the assistantship was eventually awarded to another individual.

Mr. Hupp filed suit pro se ³ against the University, Dean Sasser, ⁴ and Susan Bohna ⁵ on March 11, 1993, alleging defamation, breach of contract, and denial of due process. Following a four-day jury trial in February 1995 and the denial of the University's motions seeking a directed verdict on the defamation and due process claims, the jury awarded Mr. Hupp $150,000--$50,000 on each of Appellee's three theories. The University moved for a judgment notwithstanding the verdict, or alternatively, a new trial. The University appeals from the denial of those motions, as well as the trial court's failure to grant a directed verdict in its favor on Appellee's defamation and due process claims.

I. DEFAMATION

This Court, in syllabus point one of Crump v. Beckley Newspapers, Inc., 173 W.Va. 699, 320 S.E.2d 70 (1983), held that: "The essential elements for a successful defamation action by a private individual are (1) defamatory statements; (2) a nonprivileged communication to a third party; (3) falsity; (4) reference to the plaintiff; (5) at least negligence on the part of the publisher; and (6) resulting injury." The assignments of error at issue in this case relate to elements one and two as set forth in Crump. Specifically, the University asserts that the trial court erred in concluding that the five statements at issue were defamatory in nature, that these statements were published, and that the statements were not privileged communications, and thus outside the realm of defamation.

Necessary to our discussion is a synopsis of the five ⁶ allegedly defamatory statements, each of which were made by Dean Sasser. Statement one involved Dean Sasser stating to Professor Schie, a journalism school faculty member, in a local bar in April 1992: "I guess you've heard about the problems we're having with Hupp." After receiving a negative response, Dean Sasser stated that there were numerous complaints against Mr. Hupp for his alleged "abusiveness" and "unprofessional behavior." The second statement concerns remarks made by Dean Sasser to faculty member Dr. Lynn Hinds on April 21, 1992, that "I know he's [Mr. Hupp's] a bully. He tried to bully me." Statement three was contained in a letter from Dean Sasser to Mr. Hupp, as well as several other faculty and administrative personnel and University counsel, dated July 31, 1992, that referenced Mr. Hupp's "unprofessional behavior toward students, faculty, staff, and administrators during spring semester 1992." The fourth allegedly defamatory statement was made by Dean Sasser when he noted Mr. Hupp's "unacceptable behavior" in a writing to Professor Lynn Hinds. The final statement postdates the filing of the complaint and concerns Dean Sasser's letter dated April 22, 1993, to Dr. Lynn Hinds directing that Mr. Hupp "is not authorized to use any equipment or facilities of the School of Journalism" and that Dr. Hinds was to "prevent him from using any facilities of the School."

As we recognized in syllabus point six of Long v. Egnor, 176 W.Va. 628, 346 S.E.2d 778 (1986), "A court must decide initially whether as a matter of law the challenged statements in a defamation action are capable of a defamatory meaning." While Appellee argues that the trial court was presented with this issue on three separate occasions (and suggests that the lower court thrice ruled in his favor), our review of the record does not support Appellee's assertion. The University first raised the issue of lack of defamatory character with regard to the statements at issue in its motion for summary judgment. The trial court's denial of the University's summary judgment motion was based solely on the existence of undetermined factual...