Newman v. Kock

• Decision Date: 06 August 2008
• Docket Number: No. 04-07-00858-CV.,04-07-00858-CV.
• Citation: 274 S.W.3d 697
• Parties: William A. NEWMAN, Ph.D., Appellant, v. Nereu F. KOCK, Jr., Jacky Yuk-Chow So, Dan R. Jones, and Ray M. Keck, III, Appellees.
• Court: Texas Court of Appeals

274 S.W.3d 697

William A. NEWMAN, Ph.D., Appellant, v. Nereu F. KOCK, Jr., Jacky Yuk-Chow So, Dan R. Jones, and Ray M. Keck, III, Appellees.

No. 04-07-00858-CV.

Court of Appeals of Texas, San Antonio.

August 6, 2008.

Robert L. Mays, Jr., San Antonio, TX, for appellant.

Scot M. Graydon, Assistant Attorney General, Austin, TX, for appellee.

Sitting: ALMA L. LÓPEZ, Chief Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.

OPINION

Opinion by REBECCA SIMMONS, Justice.

This appeal arises from a tenured professor's loss of employment. Appellant William A. Newman, a former professor at Texas A & M International University ("TAMIU"), raised various claims against certain TAMIU officials, all revolving around whether he resigned or was terminated. At the time final judgment was rendered, the remaining defendants were Nereu F. Kock, Jr., Jacky Yuk-Chow So, Dan R. Jones, and Ray M. Keck, III (collectively "Appellees"). We affirm in part and reverse in part the judgment of the trial court and remand this case to the trial court for further proceedings.

BACKGROUND

TAMIU hired Newman as a tenured professor of Management Information Systems in 2000. In July 2006, Newman asked TAMIU's Human Resources department ("HR") about the procedure for retiring and filled out several forms relating to retirement. Newman claims he was only making preliminary inquiries to gather information for planning purposes and that completing these forms was part of the process of planning for future retirement. Newman further asserts he was told by HR that, in order to retire, he needed to submit a letter of resignation to his department chair or dean. It is undisputed that Newman never submitted such a letter.

Appellees claim that Newman informed Maritza Arriaga, TAMIU's Associate Director of HR, that Newman intended to leave his job shortly and not tell anyone, and that he had not decided between two dates in August (August 10 and August 15, 2006). Arriaga contacted her superior in HR, informing her about Newman's plan to end his employment with TAMIU without providing notice. That person, in turn, contacted Appellee So, the Dean of the College of Business Administration. So conferred with Appellee Jones, provost of TAMIU, and they agreed that Newman was resigning from TAMIU. On July 21, 2006, So sent a letter by e-mail and by regular mail to Newman "accepting" Newman's "resignation" effective August 15, 2006.

Upon learning of the letter, Newman immediately contacted So by telephone to inform So that he had not resigned. Additionally, on July 28, Newman sent an e-mail to So in which Newman explained that he was only considering retirement and that he had yet to make a decision. Appellee Keck, TAMIU President, sent Newman a letter on August 2, acknowledging Newman's July 28 e-mail and explaining TAMIU's position that Newman had resigned.

On August 17, Newman sent a certified letter to Appellees Kock (the chairman of Newman's department at TAMIU), Kech and So, reiterating that he had not resigned and that he planned to begin teaching classes on August 24 when the semester started. On August 24, Newman met with Jones and So, who presented Newman a settlement agreement by which Newman could teach one more semester before retiring in exchange for not suing TAMIU. After consulting with his attorney, Newman rejected this offer. Newman also requested a hearing before the Board of Regents. In response, Keck sent Newman a letter on September 7 informing Newman that, because he had voluntarily resigned, his request for a hearing with the Board was declined, as the Board does not review voluntary resignations.¹

On December 1, Newman filed suit against Kock, So and Keck, asserting tort claims, a claim for declaratory relief, and violations of his due process rights under federal law (including 42 U.S.C. § 1983) and his due course rights under state law. Newman initially included TAMIU and the Chancellor of the A & M University System as defendants, but non-suited those defendants in September 2007.²

Appellees filed a motion to dismiss the official capacity claims for lack of jurisdiction based on sovereign immunity, a traditional motion for summary judgment on the individual capacity claims based on qualified immunity and official immunity, and a no-evidence motion for summary judgment on most of the individual capacity claims. After a hearing, the trial court granted all of Appellees' motions and entered orders dismissing all of Newman's claims. Newman appeals these orders.

In the course of this appeal, Newman has voluntarily waived his claims for breach of contract and interference with prospective contractual relations, leaving claims for declaratory relief, tortious interference with contract, intentional infliction of emotional distress, and due process/due course violations to be addressed in this appeal.

CLAIM FOR DECLARATORY RELIEF

Newman asserts that the trial court erred in granting Appellees' plea to the jurisdiction on his claim for declaratory relief against Appellees in their "official capacity" only. He contends that sovereign immunity is inapplicable because he is not seeking to impose monetary liability against the government. See Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex.1994) (sovereign immunity waived for declaratory judgment claim seeking declaration that statute is unconstitutional).

A plaintiff who sues the State must establish the State's consent to suit. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). Otherwise, sovereign immunity from suit defeats a trial court's subject-matter jurisdiction. Id. When sued in their official capacity, governmental officials, like Appellees, are officers of the agency and, therefore, entitled to sovereign immunity to the same extent the agency is. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). A trial court order granting a jurisdictional plea based on sovereign immunity is reviewed de novo. Id.

A plaintiff cannot circumvent sovereign immunity by characterizing his suit as a declaratory judgment action for which immunity is waived when the plaintiff seeks relief for which sovereign immunity has not been waived. Id. A declaratory judgment claim against state officials that seeks to establish a contract's validity, enforce performance under a contract, or impose contractual liabilities is a suit against the state for which immunity is not waived. Id. at 855.

Through his claim against Appellees in their official capacity, Newman clearly seeks to "establish his contract's validity" and to "enforce performance under that contract." Id. This is precisely what the Texas Supreme Court's IT-Davy opinion precludes. Id. The trial court, therefore, properly granted Appellees' plea to the jurisdiction as to Newman's request for declaratory relief.

TORTIOUS INTERFERENCE WITH CONTRACT

The elements of a claim for tortious interference with a contract are: (1) the existence of a contract subject to interference; (2) a willful and intentional act of interference; (3) proximate cause; and (4) actual damages or loss incurred. Holloway v. Skinner, 898 S.W.2d 793, 795-96 (Tex.1995). To establish a prima facie case when the defendant is both a corporate agent and the third party who allegedly induced the corporation's breach, the alleged act of interference must be solely in the defendant's personal interests, "so as to preserve the logically necessary rule that a party cannot tortiously interfere with its own contract." Id. at 796. A corporate officer's mixed motives, to benefit both himself and the corporation, are insufficient to establish liability. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 432 (Tex.1997). Moreover, when determining whether an agent acted against the corporation's interests, the court must consider the corporation's evaluation of the agency's actions. Morgan Stanley & Co. v. Tex. Oil Co., 958 S.W.2d 178, 181-82 (Tex.1997). If a corporation does not complain about its agent's actions, the agent cannot be held to have acted contrary to the corporation's interests. Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 457 (Tex. 1998).

Appellees filed a no-evidence summary judgment motion on Newman's tortious interference claim. In reviewing a "no-evidence" summary judgment, the court examines the record in the light most favorable to the nonmovant. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex.2003). The burden is on the nonmovant to present more than a scintilla of probative evidence to raise a genuine issue of material fact on each of the challenged elements. TEX.R. CIV. P. 166a(i). "Less than a scintilla of evidence exists when the evidence is `so weak as to do no more than create a mere surmise or suspicion' of a fact." King Ranch, 118 S.W.3d at 751 (quoting Kindred v. Con/Chem., Inc., 650 S.W.2d 61, 63 (Tex.1983)). More than a scintilla of evidence exists if it would allow reasonable and fair-minded people to differ in their conclusions. King Ranch, 118 S.W.3d at 751. A no-evidence summary judgment motion should be denied if the nonmovant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. TEX.R. CIV. P. 166a(i).

Appellees' no-evidence motion for summary judgment asserted that there was no evidence that any of them took actions that served personal interests to the detriment of TAMIU's, nor was there any evidence of any complaint by TAMIU of their actions in this lawsuit. Newman's response to the no-evidence motion for summary judgment generally avers that Appellees' acts were in bad faith, outside the scope of their authority, and amounted to willful and intentional interference with his employment contract with TAMIU. However, there is no evidence suggesting that Appellees would personally benefit from his absence, nor was there any evidence that TAMIU complained or otherwise disapproved of Appellees' actions. Appellees were, therefore, entitled to...