                                 MEMORANDUM OPINION
                                        No. 04-09-00747-CV

                                              Rufus ODEM,
                                                Appellant

                                                   v.

              DELOITTE & TOUCHE, LLP, John Morgan, and Kathie Schwerdtfeger,
                                    Appellees

                      From the 37th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2007-CI-15162
                        Honorable David A. Berchelmann, Jr., Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: February 2, 2011

AFFIRMED

           Appellant Rufus Odem brought claims for defamation, tortious interference with contract,

conspiracy, negligence, and gross negligence against Deloitte & Touche, LLP, John Morgan, and

Kathie Schwerdtfeger (collectively “Deloitte & Touche”). Odem’s claims arose out of a report

prepared by Deloitte & Touche following a quality assessment review of the San Antonio Water

System’s internal audit department, which was conducted pursuant to an agreement between

Deloitte & Touche and the San Antonio Water System (“SAWS”). Deloitte & Touche moved
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for summary judgment on all of Odem’s claims, and the trial court granted the motion in its

entirety, ruling that Odem should take nothing. Odem appeals contending the trial court erred in

granting Deloitte & Touche’s motion for summary judgment. We affirm the judgment in favor

of Deloitte & Touche.

                                         BACKGROUND

       In 1985, Odem went to work for the City Water Board, which later became SAWS.

Odem worked in the internal audit department. Within a year of his employment Odem was

promoted to director of the internal audit department. According to Odem, during his tenure,

which spanned more than twenty years, his department saved SAWS millions of dollars by

exposing waste and corruption.

       In January 2005, SAWS hired a new CEO, David Chardavoyne. SAWS was undergoing

a reorganization, which included hiring new management personnel and forming an Audit

Committee. From the beginning, Odem and Chardavoyne had a troubled relationship. Odem,

believing Chardavoyne was discriminating against him based on race and age, filed a complaint

with the Equal Employment Opportunity Commission (“EEOC”) in July 2005. The dispute was

publicized in the local media.     The EEOC conducted an investigation, and based on the

information obtained as a result of that investigation, it issued a Determination Letter on August

30, 2006. The EEOC determined it could not find discrimination based on age, but there was

evidence to support Odem’s claim of racial discrimination, specifically that he was: (1) denied

promotional opportunities, (2) denied the opportunity to attend a financial seminar, (3) prohibited

from hiring department staff, (4) barred from SAWS meetings, (5) stripped of essential duties,

(6) given little or no cooperation by other SAWS employees at the direction of Chardavoyne, and

(7) scrutinized by management in a way dissimilar to other similarly situated employees. The



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EEOC issued a Right to Sue letter, and Odem filed suit against SAWS and Chardavoyne on

September 12, 2006. The parties eventually entered into a settlement agreement pursuant to

which Odem agreed to voluntarily resign in exchange for a monetary settlement of $635,000.00.

       Also in 2005, in accord with the major changes that were occurring at SAWS, SAWS’s

external auditing firm, Padgett Stratemann, LLP recommended SAWS hire an outside consultant

to perform a quality assessment review (“QAR”) of SAWS’s internal audit function. The

summary judgment evidence shows Odem agreed with the need for a QAR. In October 2006,

SAWS hired Deloitte & Touche to perform the QAR, and the parties entered into a consulting

agreement that described the nature of the work to be performed, the time frame, and

compensation. John Morgan and Kathie Schwerdtfeger were the Deloitte & Touche personnel

involved with the SAWS review. In general, Deloitte & Touche was required to interview

SAWS and Padgett Stratemann personnel, review working papers from a selection of audits done

by SAWS’s internal audit department, and compare SAWS to similar entities with regard to

certain objective benchmark performance indicators.     Deloitte & Touche was not hired to

evaluate any specific personnel. After performing the QAR, Deloitte & Touche was required to

produce a report containing its findings. That report was to be, pursuant to the consulting

agreement, confidential.

       After completing its fieldwork, Deloitte & Touche prepared a preliminary version of its

conclusions, and sought input from SAWS management and Odem regarding the conclusions. In

letters dated November 16 and November 22, Odem advised Deloitte & Touche about his

problems with SAWS and Chardavoyne, explaining how the discrimination found by the EEOC

led to a reduction in the function of the internal audit department. The evidence shows, and

Odem admits, Deloitte & Touche listened and considered his point of view. In fact, based on the



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issues raised by Odem, Deloitte & Touche took additional time to evaluate the internal audit

department, and performed additional procedures.         The QAR report was supposed to be

presented by December 2006, but because of the additional work, it was not completed until

January 8, 2007. The report stated the internal audit function of SAWS did not substantially

conform to standards promulgated by the Institute for Internal Auditors, noting numerous

failures in the internal audit function, including the failure to have a charter to define

expectations of the internal audit department, the failure of the CEO and Audit Committee to

clearly define the role of the director and the department, the failure to have a quality assurance

function, the failure to have a formal continuing education policy for the department, the failure

to develop a thorough risk-based planning model to support the annual audit plan, as well as

several other failures. The report specifically noted at the end of these “key observations”

regarding the internal audit function that “the IA Director expressed concern about several of our

conclusions above. His concerns were taken into consideration in finalizing this report.”

       On January 17, 2007, SAWS placed Odem on paid administrative leave. Odem claimed

the Deloitte & Touche report gave SAWS the excuse to place him on leave, but that the action

was really a continuation of the discrimination and retaliation for his EEOC complaint and the

lawsuit. According to Jerald Bailey, vice president of human resources for SAWS, the reason

Odem was placed on administrative leave was not a result of the Deloitte & Touche report,

which had not yet been reviewed by the SAWS board, but because of something that occurred in

late 2006. According to Bailey, Odem was asked at a November 27, 2006 employee evaluation

meeting to provide to Chardavoyne certain information regarding the employees in his

department. Bailey stated Odem was specifically advised this information was to be provided

before the next meeting, which was scheduled for December 5, 2006. Bailey testified Odem did



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not provide the requested information for the December 5 meeting, and on December 6,

Chardavoyne sent a memorandum to Odem documenting this. Bailey heard nothing more about

the issue until the first week of January 2007 when he received a memorandum from Odem

complaining about the December 6 memorandum from Chardavoyne. Odem claimed he had

provided the information to Chardavoyne on December 5, but Chardavoyne was claiming Odem

had failed to provide the information as part of his continued harassment and discrimination.

Attached to Odem’s memorandum to Bailey was the document Chardavoyne had requested for

the December 5 meeting and it was dated December 5. Bailey, remembering Chardavoyne

complaining the document had not been provided, took the matter to the IT department. Bailey

testified he was confused by Odem’s claim the document had been provided on schedule, as

evidenced by the date on the document, and Chardavoyne’s claim that he had not received it. IT

advised Bailey the document, although dated December 5, was finalized between 4:00 p.m. and

5:00 p.m. on December 6. Bailey said given the information from IT, it was impossible for

Odem to have provided the document to Chardavoyne on December 5, and therefore it appeared

Odem had backdated the document to make it seem as if he had provided it to Chardavoyne by

the December 5 deadline.

       On January 17, 2007, Bailey had a meeting with Odem, asking him to explain the

discrepancy. Bailey testified Odem had no response other than that the document could have

been created on December 6. Bailey said he advised Odem this was a serious issue because the

basis for Odem’s most recent complaint to human resources was that Chardavoyne was unfairly

criticizing him for not timely providing a report, when in fact the report had not been provided in

a timely manner. At that point, Bailey told Odem he was being placed on administrative leave

until Bailey could complete an investigation into the matter. Bailey testified Odem was told he



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was being placed on leave because of the possible backdating of the report and subsequent

misrepresentation with regard to his complaint against Chardavoyne. Although the Deloitte &

Touche report was completed, and Bailey handed a copy to Odem as he was leaving, Bailey

specifically testified during his deposition that he gave Odem a copy as “a courtesy” to advise

Odem of “this other issue out there you need to be aware of.” Bailey did not mean to suggest the

report was the basis for placing Odem on administrative leave.

       After Odem was placed on administrative leave, he filed a complaint against

Schwerdtfeger with the Texas State Board of Public Accountancy (“the Board”), essentially

making the same allegations ultimately brought against Deloitte & Touche in the present matter.

The Board’s enforcement division considered the complaint and found “there is no evidence of a

violation of the Board’s Rules of Professional Conduct or the Public Accountancy Act.” Later,

the Board’s Technical Standards Review Committee recommended dismissal of Odem’s

complaint due to insufficient evidence.

       As noted above, Odem’s suit against SAWS and its CEO was settled in October 2007,

and Odem voluntarily resigned as part of the settlement agreement. That same month, and after

his complaints against Schwerdtfeger had been dismissed by the Board, Odem filed suit against

Deloitte & Touche and its employees associated with the QAR of SAWS. In his suit, Odem

alleged Deloitte & Touche libeled him in the QAR report, tortiously interfered with his

employment contract with SAWS, acted negligently with respect to its QAR work, and engaged

in a conspiracy with SAWS against Odem. In essence, Odem asserted that although Deloitte &

Touche knew of his problems with Chardavoyne and other members of SAWS management, it

prepared a report in cooperation with SAWS, and with minimal input from him, that ignored the

discrimination issues and ultimately resulted in damage to his reputation and the loss of his



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position. Deloitte & Touche filed traditional and no evidence motions attacking each of Odem’s

claims. After a hearing, the trial court granted Deloitte & Touche’s motion in all respects,

entering a take nothing judgment in favor of Deloitte & Touche. Odem perfected this appeal.

                                         DISCUSSION

                                      Standard of Review

       Deloitte & Touche filed both traditional and no evidence motions for summary judgment.

The propriety of a summary judgment, traditional or no evidence, is a question of law which we

review de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).

In reviewing a traditional motion for summary judgment, we must determine whether the

successful movant in the trial court carried the burden of showing no genuine issue of material

fact exists and was therefore entitled to judgment as a matter of law. Browning v. Prostok, 165

S.W.3d 336, 355 (Tex. 2005); Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005);

see TEX. R. CIV. P. 166a(c). In making this determination, we must take evidence favorable to

the nonmovant as true, crediting the nonmovant with all reasonable inferences and resolving any

doubts in the nonmovant’s favor. Fort Worth Osteopathic Hosp. v. Reese, 148 S.W.3d 94, 99

(Tex. 2004); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). When

reviewing a no evidence motion for summary judgment, we also examine the record in the light

most favorable to the nonmovant. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex.

2003); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). However, once a

party properly moves for no evidence summary judgment by specifically asserting that no

evidence exists as to one or more elements of a claim on which the nonmovant would have the

burden of proof at trial, 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.



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TEX. R. CIV. P. 166a(i); Wal-Mart, 92 S.W.3d at 506. “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)).

                                 Negligence/Gross Negligence

       Odem first contends the trial court erred in granting summary judgment on his claims for

negligence and gross negligence. Odem did not bring a claim for negligent misrepresentation.

In its motion for summary judgment, Deloitte & Touche asserted, among other grounds, that it

was entitled to judgment on the negligence claims because it owed no duty to Odem as a matter

of law. We agree.

       To establish a claim for negligence, a plaintiff must show he was owed a duty by the

defendant and the defendant breached that duty, proximately causing damage to the plaintiff.

Urena, 162 S.W.3d at 550; Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.

1995). The threshold question in any negligence case is whether the defendant owed the plaintiff

a duty. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Greater Houston

Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Whether a duty exists is a question of

law for the court to decide under the facts of the specific case. Tri v. J.T.T., 162 S.W.3d 552,

563 (Tex. 2005); Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997). Based on Odem’s

pleadings, as well as his responses to interrogatories, which were submitted as part of Deloitte &

Touche’s summary judgment evidence, any duty in this case was based on Deloitte & Touche’s

professional engagement with SAWS. In his third amended petition, the live pleading, Odem

alleged Deloitte & Touche was negligent and grossly negligent “in the preparation of the QAR.”

The QAR resulted from the professional engagement of Deloitte & Touche by SAWS.



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Moreover, during discovery, Odem was specifically asked in interrogatories propounded by

Deloitte & Touche to identify any duty owed to him by Deloitte & Touche. In response, Odem

stated Deloitte & Touche “had a duty to perform under its contract with SAWS.” The contract

between Deloitte & Touche and SAWS called for Deloitte & Touche to provide professional

accounting and auditing services. Because the engagement was for professional services, the

negligence claim is one for professional malpractice, and the issue is whether the professional

exercised the care, skill, and diligence that ordinary professionals in that field commonly possess

and exercise. See Averitt v. PriceWaterhouseCoopers, L.L.P., 89 S.W.3d 330, 334 (Tex. App.—

Fort Worth 2002, no pet.). Indeed, Odem recognizes this in his brief when he states that to show

negligence in this case, he was required to prove Deloitte & Touche “failed to do that which an

accountant of ordinary prudence would have done under the same or similar circumstances or did

that which an accountant of ordinary prudence would not have done under the same or similar

circumstances.”

       The question of an auditor’s or accountant’s duty to third-parties who are not in privity

with them was recently answered by the Texas Supreme Court in Grant Thornton LLP v.

Prospect High Income Fund, 314 S.W.3d 913 (Tex. 2010). In Grant Thornton, the supreme

court reaffirmed this state’s adherence to section 552 of the Restatement (Second) of Torts,

which provides that a cause of action is available only when the professional at issue–accountant,

auditor, or attorney–provides information to a known party for a known purpose. Id. at 920. As

noted by the court, section 552 defines a “known party” as one who falls in a limited class of

potential claimants “‘for whose benefit and guidance [one] intends to supply the information or

knows that the recipient intends to supply it.’” Id. (quoting McCamish, Martin, Brown &




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Loeffler v. F.E. Appling Interests., 991 S.W.2d 787, 791 (Tex. 1999) (quoting RESTATEMENT

(SECOND) OF TORTS § 552(2)(a) (1965)).

       So, was Odem a “known party” within the parameters of section 552 such that Deloitte &

Touche owed a duty to him based on its professional engagement with SAWS? We hold he was

not. By the terms of the agreement between Deloitte & Touche and SAWS, Deloitte & Touche

was conducting a QAR of the internal audit department for use by SAWS–for SAWS to

determine the efficacy of the department. The QAR was not being supplied to Odem, as an

individual, for his benefit and guidance. We therefore hold, as a matter of law, that Deloitte &

Touche owed no duty to Odem, and the trial court correctly granted summary judgment on the

negligence claim.

       Odem cites numerous professional standards he claims created a duty by Deloitte &

Touche. However, Odem did not raise these standards in response to Deloitte & Touche’s

motion for summary judgment. We recognize Odem cited numerous professional standards in

his response, but they were not cited with regard to his negligence cause of action, and he did not

provide any summary judgment evidence to raise a fact issue as to their applicability to any duty

owed by Deloitte & Touche to him.

       With regard to gross negligence, it is axiomatic that without a successful negligence

claim in the first instance there can be no claim for gross negligence. See Sanders v. Herold, 217

S.W.3d 11, 20 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding that although gross

negligence refers to different character of conduct, one’s conduct cannot be grossly negligent

without being negligent); Muniz v. State Farm Lloyds, 974 S.W.2d 229, 237 (Tex. App.—San

Antonio 1998, no pet.) (holding that if party is not liable for negligence, it cannot be liable for




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gross negligence). Accordingly, the trial court did not err in granting summary judgment in

favor of Deloitte & Touche on Odem’s gross negligence claim.

                                          Malicious Harm

        In his second issue, Odem argues the trial court erred in granting summary judgment in

favor of Deloitte & Touche because he raised a fact issue on whether Deloitte & Touche

“maliciously harmed” him. We are, admittedly, at a loss with regard to this issue. Odem has

cited no authority for his assertion that a cause of action for “malice” or “malicious harm” exists

at law or equity, and we have found none.            Additionally, we have reviewed Odem’s live

pleading, the third amended petition, and can find no allegation of “malice,” except with regard

to “actual malice” associated with his defamation claim. We therefore overrule this issue.

                                                 Libel

        Odem next complains the trial court erred in granting summary judgment on his libel

claim. To establish a cause of action for defamation, a plaintiff must prove: (1) the defendant

published a factual statement, (2) that was capable of defamatory meaning, (3) concerning the

plaintiff, (4) while acting with either negligence, if the plaintiff is a private individual, or actual

malice, if the plaintiff is a public figure or a public official, concerning the truth of the statement.

WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Grand Champion Film Prod.,

L.L.C. v. Cinemark USA, Inc., 257 S.W.3d 478, 481 (Tex. App.—Dallas 2008, no pet.). Deloitte

& Touche moved for summary judgment on several grounds. In one of its grounds, Deloitte &

Touche argued there was no evidence the recipients of the QAR, which was Odem’s basis for his

libel action, understood it to be defamatory, thereby negating the required element of publication.

       To constitute actionable defamation, the alleged defamatory statement must be

communicated so that it is understood by a third party in a defamatory sense, and there must be



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evidence that at least one recipient of the alleged defamatory communication understood the

words as defamatory. Rodriguez v. Printone Color Corp., 982 S.W.2d 69, 73 (Tex. App.—

Houston [1st Dist.] 1998, pet. denied); Marshall v. Mahaffey, 974 S.W.2d 942, 949 (Tex. App.—

Beaumont 1998, pet. denied); Diesel Injection Sales & Servs., Inc. v. Renfro, 656 S.W.2d 568,

573 (Tex. App.—Corpus Christi 1983, writ ref’d n.r.e.). When there is no evidence that at least

one person understood the words as defamatory, the required element of publication is absent.

AccuBanc Mortg. Corp. v. Drummonds, 938 S.W.2d 135, 147 (Tex. App.—Fort Worth 1996,

writ denied). As stated by the court in Drummonds:

       Defamatory statements are “published” if they are communicated orally, in
       writing, or in print to some third person capable of understanding their
       defamatory import and in such a way that the third person did so understand.

Id.; see Farias v. Bexar County Bd. of Trustees for Mental Health Mental Retardation Servs.,

925 F.2d 866, 868 (5th Cir.), cert. denied, 502 U.S. 866 (1991).

       We have reviewed Odem’s response to Deloitte & Touche’s no evidence motion for

summary judgment on this issue, and we find he provided no evidence that any person who

received the QAR understood it to be defamatory. Once Deloitte & Touche asserted there was

no evidence as to the publication element of Odem’s libel cause of action, the burden shifted to

Odem to present more than a scintilla of probative evidence to raise a genuine issue of material

fact on this challenged element. See TEX. R. CIV. P. 166a(i); Wal-Mart, 92 S.W.3d at 506.

Because he failed to provide even a scintilla of probative evidence that any recipient of the QAR

understood it to have a defamatory import, the trial court did not err in granting Deloitte &

Touche’s motion for summary judgment on the libel claim.




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                              Tortious Interference with Contract

       In his fourth issue, Odem challenged the summary judgment granted in favor of Deloitte

& Touche on his claim for tortious interference with contract. Odem argues he raised a fact issue

as to whether Deloitte & Touche tortiously interfered with his employment contract with SAWS.

       A plaintiff prevails in a cause of action for tortious interference if he can prove: (1) the

existence of a contract subject to interference, (2) willful and intentional interference, (3)

interference that proximately caused damage to the plaintiff, and (4) actual damage or loss by the

plaintiff. Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 456 (Tex. 1998); Milam v. Nat’l Ins.

Crime Bureau, 989 S.W.2d 126, 131 (Tex. App.—San Antonio 1999, no pet.) (citing

Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 281, 282 (Tex. 1996)). As one of its

grounds for summary judgment, Deloitte & Touche asserted it was entitled to summary judgment

on Odem’s claim for tortious interference with contract because Odem did not have an

employment contract with SAWS. In response, Odem argued, as he does here, Texas recognizes

a claim for interference with an “at-will relationship.” In other words, Odem contends no

contract is necessary for him to prevail on a tortious interference with contract claim. In support

of his argument, Odem relies upon Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793

S.W.2d 660 (Tex. 1990), Sterner v. Marathon Oil Co., 767 S.W.2d 686 (Tex. 1989), and Knox v.

Taylor, 992 S.W.2d 40 (Tex. App.—Houston [14th Dist.] 1999, no pet.). These cases, however,

do not support Odem’s argument that an existing contract is unnecessary to support a tortious

interference with contract claim. Rather, these cases stand for the proposition that a party can

maintain a tortious interference with contract claim even if the contract in question is terminable

at will. See Juliette Fowler Homes, 793 S.W.2d at 666; Sterner, 767 S.W.2d at 689; Knox, 992

S.W.2d at 57-58. As articulated by the supreme court in Sterner, even if a contract is terminable



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at will, until it is terminated, the contract is valid and subsisting, and if a third party tortiously

interferes with it, a cause of action for tortious interference with contract will lie. Sterner, 767

S.W.2d at 689; see Juliette Fowler Homes, 793 S.W.2d at 666; see Knox, 992 S.W.2d at 57-58.

In other words, Texas simply recognizes that even though a contract can be terminated at any

time, third parties may not tortiously interfere with it while it is in existence. See id.

        It is undisputed that Odem did not have a contract with SAWS, not even a terminable-at-

will contract so as to render Sterner and its progeny applicable. Deloitte & Touche presented

summary judgment evidence of the absence of a contract between Odem and SAWS, which

established the absence of a contract as a matter of law. Specifically, Deloitte & Touche

submitted the SAWS Employee Policy Manual provision, which states (1) all SAWS employees

are employees-at-will, (2) the manual does not establish any employment contract, i.e., “policy

manual is not intended to create a de facto contract of employment[,]” and (3) no agreement or

promise relating to an employee’s employment is binding on SAWS unless it is in writing and

signed by the CEO. Odem did not present any evidence to counter the evidence submitted by

Deloitte & Touche, and in fact concedes, he had no employment contract with SAWS. In the

absence of some type of contract between Odem and SAWS, Odem cannot maintain his claim

for tortious interference with contract. The trial court therefore did not err in granting summary

judgment in favor of Deloitte & Touche on this claim.

                                             Conspiracy

        Finally, Odem contends the trial court erred in granting summary judgment on his claim

for conspiracy. Odem alleged, in essence, Deloitte & Touche conspired with SAWS to violate

Odem’s civil rights, and that Deloitte & Touche did so by producing a one-sided report that

allowed SAWS to take action that ultimately resulted in Odem’s loss of employment. Deloitte &



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Touche moved for summary judgment on Odem’s conspiracy claim pursuant to rule 166a(i),

asserting there was no evidence as to any element of this claim. See TEX. R. CIV. P. 166a(i).

       A civil conspiracy is “a combination by two or more persons to accomplish an unlawful

purpose or to accomplish a lawful purpose by unlawful means.” Triplex Commc’ns, Inc. v. Riley,

900 S.W.2d 716, 720 (Tex. 1995) (quoting Massey v. Armco Steel Co., 652 S.W.2d 932, 934

(Tex. 1983)). The essential elements of a civil conspiracy are: (1) two or more persons; (2) an

object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one

or more unlawful, overt acts; and (5) proximately resulting damages. Tri, 162 S.W.3d at 556;

Massey, 652 S.W.2d at 934.

       Deloitte & Touche moved for summary judgment asserting, among other things, there

was no evidence of a meeting of the minds between Deloitte & Touche and SAWS to perform

any unlawful act.    Because Deloitte & Touche properly moved for no evidence summary

judgment by specifically asserting there was no evidence of the “meeting of the minds” element,

the burden shifted to Odem to present more than a scintilla of probative evidence to raise a

genuine issue of material fact on that element. See TEX. R. CIV. P. 166a(i); Wal-Mart, 92 S.W.3d

at 506. In an effort to meet his burden, Odem referred to “emails [sic] that went back and forth

to develop the report in a light most favorable to SAWS.” Odem attached as evidence to his

motion for summary judgment two e-mails. The first e-mail document contains communications

from Odem to Schwerdtfeger, from Schwerdtfeger to a SAWS representative, Doug Evanson,

and Evanson’s response to Schwerdtfeger.               In those communications, Odem asked

Schwerdtfeger to call him because he would like to discuss changes to Deloitte & Touche’s

report that had not previously been discussed. He mentioned potential erroneous information

that may have been received by Deloitte & Touche. In response, Schwerdtfeger contacted



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Evanson with SAWS, and told him Deloitte & Touche would prefer if Odem “work directly

through SAWS and that SAWS let us know if there is something else required of us with respect

to this report and Mr. Odem’s comments.” Evanson responded ten days later, stating he “will

attempt to check this weekend for your e-mail, but if I do not receive, can you please forward

directly to Dave next week.”

       The second e-mail is from Schwerdtfeger to John Morgan–both Deloitte & Touche

representatives who worked on the SAWS report. In that e-mail, Schwerdtfeger advised Morgan

the report was reviewed with Odem and Odem took exception to some portions of the report,

indicating the problems found by Deloitte & Touche with his department were not “his fault and

that everyone in mgt and bard has lied to us because they are trying to get rid of him.”

Schwerdtfeger noted Odem felt his department had added value to SAWS, but no one else in

management felt the same way, and that Deloitte & Touche’s independent evaluation found the

internal audit department was not providing the value it should. She expressed concern for

Odem, but concluded he does not understand the purpose of an internal audit department.

Schwerdtfeger stated that although Odem never had any problem with SAWS management in the

past, SAWS had undergone significant change in its board and leadership, specifically a new

CEO and an Audit Committee. It was new management that requested the outside scrutiny by

Deloitte & Touche because management had “heard from others and was beginning to observe

for themselves that IA was dysfunctional but they didn’t want to pull the trigger until a formal

review was done.” Schwerdtfeger then opined that SAWS was likely to make a change with

regard to the internal audit department, but the situation with Odem was complicated because of

his lawsuit against SAWS. Finally, she stated she was open to a response from Odem, but noted

that any response could be “very negative,” and SAWS would then be entitled to reply to



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Odem’s response. Schwerdtfeger asked Morgan if Deloitte & Touche really wanted to get into

that, and perhaps Deloitte & Touche should just let Odem and SAWS “duke it out internally.”

She advised that whatever Deloitte & Touche does, it should be conservative given Odem’s

“record of filing lawsuits and complaints.” This e-mail is dated November 21, 2006, more than a

month before the final report issued.

       Having reviewed these e-mails, which are the only summary judgment evidence provided

by Odem in response to Deloitte & Touche’s allegation that there was no evidence of any

meeting of the minds between Deloitte & Touche and SAWS to do an unlawful act, we agree

with Deloitte & Touche there is nothing in the e-mails to show a meeting of the minds between

Deloitte & Touche and SAWS to violate Odem’s civil rights or otherwise harm Odem. In sum,

these e-mails merely establish Deloitte & Touche was aware of the problems Odem was having

with SAWS, and was seeking to stay out of the fray in an attempt to avoid what ultimately

happened–a lawsuit against Deloitte & Touche by Odem. There is not a scintilla of evidence,

circumstantial or direct, within these e-mails to show an agreement between Deloitte & Touche

and SAWS to take any unlawful action. Accordingly, because Odem failed to present even a

scintilla of evidence to establish at least one element of his civil conspiracy claim, we hold the

trial court did not err in granting summary judgment in favor of Deloitte & Touche on the

conspiracy claim. See id.

                                          CONCLUSION

       Based on the foregoing discussion and analysis, we overrule all of Odem’s issues.

Having overruled Odem’s issues, we affirm the summary judgment in favor of Deloitte &

Touche.


                                                 Marialyn Barnard, Justice

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