Johnson v. Baylor University

• Decision Date: 15 February 2006
• Docket Number: No. 10-05-00195-CV.,10-05-00195-CV.
• Citation: 188 S.W.3d 296
• Parties: Vernon G. JOHNSON, Appellant, v. BAYLOR UNIVERSITY, Appellee.
• Court: Texas Court of Appeals

188 S.W.3d 296

Vernon G. JOHNSON, Appellant, v. BAYLOR UNIVERSITY, Appellee.

No. 10-05-00195-CV.

Court of Appeals of Texas, Waco.

February 15, 2006.

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LaNelle L. McNamara, Waco, for appellant.

Stuart Smith and Roy Barrett, Naman Howell Smith & Lee PC, Waco, for appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

BILL VANCE, Justice.

Introduction and Background

Vernon Johnson sued Baylor University, asserting four causes of action. Baylor obtained summary judgment; Johnson appeals. We will affirm in part and reverse and remand in part.

Johnson, a pilot working for Baylor from 1992 to 1994, was fired for chronic obesity and poor grammar and diction, which Baylor believed diminished its image to people who flew on Baylor's aircraft. Baylor's president at the time, Dr. Herbert H. Reynolds, however, repeatedly praised Johnson's skills as a pilot. In August 1997 (while his discrimination suit¹ against Baylor was pending), Johnson obtained employment on a probationary basis with Kitty Hawk Air Cargo, Inc., an air freight carrier, and began training. In his preemployment interview with Kitty Hawk, Johnson informed Kitty Hawk that he had been terminated by Baylor because of his obesity and not because of his performance as a pilot.

Kitty Hawk received a pre-employment background report — prepared by Accu-Screen, Inc. from information obtained from Baylor — that Johnson had been involuntarily terminated for misconduct and that he was ineligible for rehire. Kitty Hawk sought Johnson's employment records from Baylor,² but Baylor erroneously responded that Johnson's personnel records were not available. About a month later — and after receiving the report from Accu-Screen and having no records from Baylor — Kitty Hawk dismissed Johnson.³

About sixteen months later, after Johnson had obtained copies of the documents that Accu-Screen and Baylor had sent Kitty Hawk, Johnson sued Baylor again, this time alleging tortious interference with a contract and with a prospective contractual relationship, and contending that Baylor's statements to Kitty Hawk were false and had caused his employment with Kitty Hawk to be terminated.⁴ Johnson later added defamation and negligent misrepresentation claims. Ultimately, the trial court granted summary judgment for Baylor on all of Johnson's claims.

Johnson raises three issues, asserting that the trial court erred in granting summary judgment on his tortious interference, defamation, and negligent misrepresentation claims, respectively.

Standard of Review

We review the decision to grant a summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). The standards for reviewing a traditional motion for summary judgment are well established. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to the summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Ash v. Hack Branch Distributing Co., 54 S.W.3d 401, 413 (Tex.App.-Waco 2001, pet. denied). The reviewing court must accept all evidence favorable to the nonmovant as true. Nixon, 690 S.W.2d at 549; Ash, 54 S.W.3d at 413. Every reasonable inference must be indulged in favor of the nonmovant and all doubts resolved in his favor. American Tobacco, 951 S.W.2d at 425; Ash, 54 S.W.3d at 413. Consistent with the standard of review, we present the background facts in the light most favorable to the nonmovant. See Turner v. KTRK TV, Inc., 38 S.W.3d 103, 109 (Tex.2000); see also Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex.2003) (appellate court views record in light most favorable to nonmovant when reviewing no-evidence summary judgment motion).

If the movant for summary judgment is a defendant, then the movant must negate at least one of the elements of the nonmovant's cause of action, or alternatively, the movant must conclusively establish each element of an affirmative defense. Clifton v. Hopkins, 107 S.W.3d 755, 757 (Tex.App.-Waco 2003, pet. denied). The nonmovant need not respond to the motion for summary judgment unless the movant meets its burden of proof. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex.1999). But if the movant meets its burden of proof, the nonmovant must present summary judgment evidence to raise a fact issue. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995).

We apply the same standard in reviewing the grant of a no-evidence summary judgment motion as we would in reviewing a directed verdict. Ash, 54 S.W.3d at 413. We review the summary judgment evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. Id. A no-evidence motion will be defeated if more than a scintilla of probative evidence exists to raise a genuine issue of material fact on the element challenged by the movant. Id. More than a scintilla of evidence exists if it would allow reasonable and fair-minded people to differ in their conclusions. Forbes, Inc., 124 S.W.3d at 172.

When a trial court's order granting summary judgment does not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Larsen v. Carlene Langford & Assocs., Inc., 41 S.W.3d 245, 249 (Tex.App.-Waco 2001, pet. denied).

Analysis

Defamation

We first address Johnson's second issue, which asserts that the trial court erred in granting summary judgment on his defamation claim. Baylor filed traditional and no-evidence motions for summary judgment on this claim. Its traditional motion asserted that Johnson's defamation claim was barred by the one-year statute of limitations. The trial court granted both motions without stating any grounds.

The summary judgment evidence shows Johnson began working work for Kitty Hawk in August of 1997, starting his initial training on a probationary basis. After completing the first phase of training, Johnson took leave before he was to resume training at the end of September 1997. But Kitty Hawk sent Johnson a letter dated September 25, 1997, stating that he was being removed from Kitty Hawk's training schedule and that he was relieved from any further Kitty Hawk training or attendance.

In an August 14, 1997 letter to Baylor, Kitty Hawk had requested that Baylor provide it with Johnson's personnel records for the previous five years, as required by the PRSA. The basis of Johnson's defamation claim was Baylor's written statement to Kitty Hawk (through an August 25, 1997 pre-employment background report prepared by Accu-Screen, Inc. from information obtained from Baylor) that Johnson's employment with Baylor as a pilot had been terminated "involuntarily" for "conduct" reasons and that he was ineligible for rehire. Johnson claims that these statements were false.

Johnson stated in his affidavit that, when he inquired about the reason for Kitty Hawk's decision, he was told that the decision was based on information from Baylor. In March of 1998, Johnson obtained a copy of the documents that Kitty Hawk had received. He filed this suit on January 19, 1999, about sixteen months after being terminated by Kitty Hawk.

The statute of limitations for a defamation cause of action is one year. TEX. CIV. PRAC. & REM.CODE. ANN. § 16.002(a) (Vernon 2002). Ordinarily, the cause of action accrues on the date the defamatory matter is published. See Langston v. Eagle Publishing Co., 719 S.W.2d 612, 615 (Tex.App.-Waco 1986, writ ref'd n.r.e.). The discovery rule applies to libel actions, and under this rule, the statute of limitation does not begin to run until the injured party learns of, or, in the exercise of reasonable diligence, should have learned of the injury or wrong giving rise to the action. Id. (citing Kelley v. Rinkle, 532 S.W.2d 947, 949 (Tex.1976)); see also KPMG Peat Marwick v. Harrison County Fin. Corp., 988 S.W.2d 746, 749 (Tex.1999) ("accrual occurs when the plaintiff knew or should have known of the wrongfully caused injury"). The plaintiff need not know the specific nature of each wrongful act that may have caused the injury. KPMG, 988 S.W.2d at 749.

Because Johnson pled the discovery rule, Baylor had the burden of negating the discovery rule by proving as a matter of law that no fact issue existed on when Johnson discovered or should have discovered the nature of the injury. Rhone-Poulenc, Inc., 997 S.W.2d at 223; Burns v. Thomas, 786 S.W.2d 266, 267 (Tex.1990). Baylor argues that, because Johnson's injury (the loss of his job with Kitty Hawk) occurred in September 1997 and he was told then that his termination occurred because he had a "problem" with Baylor (i.e., the information that Kitty Hawk had received from Baylor), Johnson's defamation claim accrued then and the statute of limitations began to run.

We agree with Baylor that Johnson knew or should have known of his wrongfully caused injury when he was dismissed by Kitty Hawk and told that it was because of the information Kitty Hawk had received from Baylor. Johnson knew or should have known then the facts that he later alleged — that his injury was the result of the wrongful conduct of others, i.e., Baylor's providing information to Kitty Hawk. Because Johnson's defamation claim accrued more than one year before he filed suit, summary judgment on Baylor's limitations defense was proper. We overrule Johnson's second issue.

Negligent Misrepresentation: First Element (Defendant Provides Information)

Johnson's third issue asserts that the trial court erred in granting summary judgment on his negligent misrepresentation claim. Baylor filed traditional and noevidence motions for summary judgment on this claim. Its traditional motion asserted that Johnson...