                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-07-290-CV


PHILIP HADLOCK                                                  APPELLANT

                                       V.

TEXAS CHRISTIAN UNIVERSITY,                                      APPELLEES
MARY VOLCANSEK, SHARON
FAIRCHILD, JEFFREY TODD,
YUMIKO KEITGES, JEAN KNECHT,
AND WILLIAM POHL

                                   ------------

          FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

     Appellant Philip Hadlock appeals from a summary judgment for Appellees

Texas Christian University (“TCU”), Mary Volcansek, Sharon Fairchild, Jeffrey

Todd, Yumiko Keitges, Jean Knecht, and William Pohl on Hadlock’s defamation



     1
         … See Tex. R. App. P. 47.4.
claims. Because we hold that Hadlock failed to point out sufficient evidence to

defeat Appellees’ no-evidence motion for summary judgment, we affirm.

      Hadlock began working at TCU in 1998 as an instructor of French. He

was appointed to a tenure track position beginning in the fall of 1999. Hadlock

was given a positive performance evaluation for each academic year through

his five-year tenure probationary period. On January 21, 2004, Volcansek,

dean of the college in which Hadlock taught, provided her recommendation to

William Koehler, provost and vice chancellor at TCU, that Hadlock be granted

tenure and a promotion to associate professor.

      The modern languages department held a meeting on February 20, 2004,

at which Fairchild, the department chair, discussed the progress the department

was making in its search for a professor of German. The parties dispute what

happened at the meeting, but everyone agrees that Hadlock and his wife, also

an untenured faculty member of the department, objected that they had not

been included in the search process.        According to Appellees, Hadlock

expressed his objections vehemently and aggressively and “cast[] suspicion on

the motives” of the search committee and other faculty members. According

to Hadlock, he was not accusatory at the meeting and did not rise out of his

chair or use profanity, but he did become irritated and raise his voice.




                                       2
      On February 23, 2004, Fairchild met with Volcansek and described to her

the February 20 meeting.       Two days later, on February 25, Fairchild and

tenured faculty members Knecht, Todd, Keitges, and Pohl (“the Faculty”) sent

to Volcansek a letter retracting their recommendation that Hadlock be granted

tenure and stating that they were concerned that Hadlock had violated TCU’s

Statement on Professional Ethics—guidelines applicable to professors and

instructors at the school—by expressing disrespect to colleagues and by

refusing to accept opinions that differed from his own. Volcansek forwarded

this letter to Koehler with a brief note of her own.

      On March 8, the Faculty met with Hadlock and, without informing him of

the letters that had been sent to Koehler, told him that the Faculty had serious

concerns about his behavior. Then on March 10, the Faculty gave to Volcansek

another letter regarding Hadlock; this letter was almost identical to the letter of

February 25. Todd authored another letter on March 22 describing behavior by

Hadlock that the Faculty had found to show disrespect for his colleagues.

Volcansek forwarded this letter to Koehler, noting that in light of the allegations

contained within it, she withdrew her recommendation that Hadlock be granted

tenure.

      Koehler ultlimately recommended denying tenure to Hadlock, and TCU

gave Hadlock a terminal contract for employment for the 2004–05 academic

                                        3
year. According to Koehler, he recommended denying Hadlock tenure because

enrollment in the French program was so low that an additional tenured

professor would be a waste of resources.

      Hadlock filed suit against Appellees for breach of contract and

defamation. The trial court granted partial summary judgment for Appellees on

Hadlock’s breach of contract claim, and he did not appeal from that judgment.

      In Hadlock’s defamation claims, he contended that (1) the Facutly had

alleged in writing that Hadlock had engaged in professional misconduct and had

violated recognized standards of professional ethics; (2) Fairchild had made a

number of verbal statements to colleagues at TCU and at other academic

institutions to the effect that Hadlock had engaged in misconduct; and (3)

Volcansek had alleged in writing that Hadlock had demonstrated hostility and

a lack of respect toward his colleagues and that if he were granted tenure he

would hinder development of a community of scholars in the department.

Appellees filed a combined traditional and no-evidence motion for summary

judgment on these claims.      The trial court granted the motion without

specifying the ground or grounds on which the motion was granted, and

Hadlock appeals from that judgment.

      After an adequate time for discovery, the party without the burden of

proof may, without presenting evidence, move for summary judgment on the

                                      4
ground that there is no evidence to support an essential element of the

nonmovant’s claim or defense.2 The trial court must grant the motion unless

the nonmovant produces summary judgment evidence that raises a genuine

issue of material fact.3 We review the evidence in the light most favorable to

the party against whom the no-evidence summary judgment was rendered.4 If

the nonmovant brings forward more than a scintilla of probative evidence that

raises a genuine issue of material fact, then a no-evidence summary judgment

is not proper. 5

      When a party moves for summary judgment under both rules 166a(c) and

166a(i), we will first review the trial court’s judgment under the standards of

rule 166a(i).6 If the appellant failed to produce more than a scintilla of evidence

under that burden, then there is no need to analyze whether the appellee’s




      2
          … Tex. R. Civ. P. 166a(i).
      3
     … See Tex. R. Civ. P. 166a(i) & cmt.; Sw. Elec. Power Co. v. Grant, 73
S.W.3d 211, 215 (Tex. 2002).
      4
       … King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003),
cert. denied, 541 U.S. 1030 (2004); Johnson v. Brewer & Pritchard, P.C., 73
S.W.3d 193, 197 (Tex. 2002); Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex.
2000).
      5
      … Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San
Antonio 1998, pet. denied).
      6
          … Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

                                        5
summary judgment proof satisfied the less stringent rule 166a(c) burden. 7

      Hadlock brings a Malooly point on appeal, asserting generally that the trial

court erred by granting summary judgment for Appellees.8            In Hadlock’s

arguments, he first attacks Appellees’ no-evidence summary judgment ground

alleging that there was no evidence of a defamatory communication.             He

contends that more than a scintilla of evidence raised a fact issue on this

element.

      Because Appellees asserted a no-evidence motion, Hadlock had the

burden to point out evidence in support of the challenged elements in order to

prevent summary judgment.9 Hadlock had to specifically identify the evidence

he wished the trial court to consider; a trial court is not required “to wade

through a voluminous record to marshal a respondent’s proof.” 10         And the


      7
          … Id.
      8
       … See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970)
(stating that appellant’s assertion on appeal of a broad point challenging the
summary judgment in its entirety is sufficient to allow argument as to all
possible grounds on which summary judgment should have been denied).
      9
          … See Tex. R. Civ. P. 166a(i) & cmt.
      10
       … See DeGrate v. Executive Imprints, Inc., 261 S.W.3d 402, 408 (Tex.
App.—Tyler 2008, no pet.); see also Arredondo v. Rodriguez, 198 S.W.3d 236,
238 (Tex. App—San Antonio 2006, no pet.); Tex. R. Civ. P. 166a(i) & cmt.
(“To defeat a motion made under paragraph (i), . . . [a nonmovant’s] response
need only point out evidence that raises a fact issue on the challenged
elements.”).

                                        6
record in this case was voluminous: Hadlock’s own evidence and the evidence

of Appellees, which he incorporated as summary judgment evidence, consisted

of over 800 pages. Thus, we look to Hadlock’s response to the motion and

determine if he pointed out to the trial court evidence raising a fact issue on

Appellees’ no-evidence grounds.11

      A defamatory statement may be made orally or in writing.12 Slander is

“a false oral statement that is published to a third person without a legal

excuse, which refers to an ascertainable person.” 13 Libel is defamation in

written or printed form.14 Not every statement about a person that depicts the

person in a negative light is actionable as libel. “A libel is a defamation . . . that

tends to injure a living person’s reputation and thereby expose the person to

public hatred, contempt or ridicule, or financial injury or to impeach any

person’s honesty, integrity, virtue, or reputation.” 15 A statement “may be false,

abusive, unpleasant, or objectionable to the plaintiff and still not be defamatory




      11
           … See Tex. R. Civ. P. 166a(i) & cmt.
      12
      … AccuBanc Mortg. Corp. v. Drummonds, 938 S.W.2d 135, 147 (Tex.
App.—Fort Worth 1996, writ denied).
      13
           … Id.
      14
           … Id.; Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (Vernon 2005).
      15
           … Tex. Civ. Prac. & Rem. Code § 73.001.

                                          7
in light of the surrounding circumstances.” 16 Whether a statement is capable

of a defamatory meaning is a question of law for the court unless the statement

is ambiguous. 17    To be actionable as defamation, a statement must be an

assertion of verifiable fact (that is, a statement that purports to be verifiable);

purely subjective assertions (that is, opinions) that do not imply the existence

of undisclosed facts or do not misconstrue the facts are not actionable as

defamation.18

      We have reviewed Hadlock’s response, and regarding his slander claim

against Fairchild, we are unable to find where Hadlock pointed to any specific

spoken statement by Fairchild as defamatory. He alleged that Fairchild told

Punch Shaw, a TCU adjunct professor, that the February 20 meeting was the



      16
        … Columbia Valley Reg’l Med. Ctr. v. Bannert, 112 S.W.3d 193, 198
(Tex. App.—Corpus Christi 2003, no pet.); see also Turner v. KTRK Television,
Inc., 38 S.W.3d 103, 114 (Tex. 2000) (“[A]n allegedly defamatory publication
should be construed as a whole in light of the surrounding circumstances.”);
Phelan v. Texas Tech Univ., No. 07-07-0171-CV, 2008 WL 190741, at *11
(Tex. App.—Amarillo Jan. 23, 2008, pet. denied) (mem. op.) (holding that,
reading email as a whole in light of surrounding circumstances, indirect
reference to professor as a “creep” and writer’s description of professor’s
behavior as “dysfunctional” were not defamatory).
      17
           … Turner, 38 S.W.3d at 114.
      18
      … Bentley v. Bunton, 94 S.W.3d 561, 583–84 (Tex. 2002); Brown v.
Swett & Crawford of Tex., Inc., 178 S.W.3d 373, 382–83 (Tex.
App.—Houston [1st Dist.] 2005, no pet.); see also Thomas-Smith v. Mackin,
238 S.W.3d 503, 507 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

                                         8
turning point on his tenure and that until that meeting everything was fine.

Hadlock did not argue how such a statement was defamatory or even expressly

allege that it was defamatory. And in the excerpt of Shaw’s deposition pointed

out by Hadlock, Shaw only said that he had been given the impression that

Hadlock was close to getting tenure and that he got the impression that

“something turned in that faculty meeting” because he knew that after the

meeting, the department no longer supported Hadlock’s tenure. He stated that

Fairchild “never told [him] the particulars of the faculty meeting.”           Thus,

Hadlock    failed   to   point   out   any   evidence   of   a   spoken   defamatory

communication by Fairchild to Shaw. 19

      Hadlock also stated that in the March 8 meeting, those present “began

confronting [him] with allegations of misconduct.” He failed to allege what

allegations were made or who made them or to point to any evidence of

defamatory statements made by Fairchild at the meeting. Thus, he failed to

present any evidence of slander based on this meeting. Because Hadlock did

not point out any other evidence of slander in his response, the trial court




      19
        … Brown, 178 S.W.3d at 382–83 (holding that because plaintiff did not
provide any evidence about the substance of the “negative information,”
unflattering emails, and “disparaging things” that he alleged were defamatory,
trial court correctly granted no-evidence summary judgment on defamation
claim based on those statements).

                                             9
correctly granted summary judgment on his slander claim.20

      With respect to his libel claim against Appellees, Hadlock referenced in

his response the two letters written by the Faculty and the two letters written

by Volcansek. He stated that the “general tenor” of the letters was that he

acted unethically and was guilty of misconduct and that the letters contained

“numerous” statements that were untrue. But Hadlock specifically pointed out

only a few statements within those writings as being defamatory. We have

considered each statement pointed out by Hadlock and have determined that

the statements are not defamatory.

      In     his   response,   Hadlock   primarily   took   issue   with   Appellees’

characterization of his behavior as hostile or disrespectful.          The crux of

Hadlock’s defamation claim was his contention that Appellees had asserted that

he acted unethically and unprofessionally and was guilty of misconduct. He

cited Bentley for the proposition that the Faculty’s opinions were actionable

because they implied the existence of verifiable facts demonstrating unethical

behavior.

      What the Faculty essentially said was that they believed his behavior

showed disrespect for the opinions of his colleagues, which in their opinion




      20
           … See Tex. R. Civ. P. 166a(i).

                                         10
violated TCU’s Statement on Professional Ethics, specifically the provision

stating, “Professors do not discriminate against or harass colleagues. They

respect and defend the free inquiry of associates. In the exchange of criticism

and ideas professors show due respect for the opinions of others.” The Faculty

asserted that they believed Hadlock had violated these criteria “by expressing

disrespect of colleagues and refusing to accept opinions that differ from his

own.”

      The Faculty did not express their opinion so as to imply the existence of

facts to back up their opinion; rather, they set out verifiable assertions of fact

and then stated that, from those asserted facts, they formed the opinion that

Hadlock had shown disrespect for his colleagues. Their opinions were purely

subjective assertions.

      This case is not like Bentley, where the defendant said, without giving

facts in support of his assertion, that the plaintiff was corrupt and assured his

audience that he had seen evidence to back up his claim, never telling the

audience what the facts were or what acts of the plaintiff constituted corrupt

behavior.21     Unlike the defendant in Bentley, Appellees did not imply the

existence of fact and then fail to disclose them — they did not drop dark hints




      21
           … Bentley, 94 S.W.3d at 584.

                                       11
about Hadlock's unethical and unprofessional behavior in a way that implied

that they were basing their opinion on verifiable facts.        They laid out the

behavior that they considered to be a problem, stated that such behavior was

characteristic of Hadlock’s attitude, and then stated that their ethics rules

required professors to show due respect for the opinions of colleagues and that

they believed his behavior violated that standard. And we note that for the

most part, Hadlock did not dispute the facts Appellees set out in support of

their opinion.22 Hadlock can disagree that it shows a lack of respect for his

colleagues to, for example, raise his voice in a faculty meeting, but they are

entitled to their opinions, and they are also entitled to express those opinions. 23

Appellees’ statements regarding their opinion about Hadlock’s behavior violating

TCU’s policies are not actionable as defamation.

      Although Hadlock argued generally that Appellees had defamed him by

accusing him of acting unethically, he did point to a few specific assertions by

Appellees that he contended were defamatory.          One such assertion was a


      22
           … Those facts that he does dispute are discussed below. See infra p.
15.
      23
        … See Thomas-Smith, 238 S.W.3d at 507; see also Phelan, 2008 WL
190741, at *12 (holding that interdeparmental email statements were not
stigmatizing as a matter of law when terms “creep” and “dysfunctional” were
used in popular rather than clinical sense and Appellant produced no evidence
that statements were stigmatizing other than statements themselves and his
legal conclusion that they were stigmatizing).

                                        12
statement in the March 22 letter that according to Hadlock contended that he

“too aggressively participated in the decision to choose an outside consultant

for the program degree.” The letter actually said that the Faculty, including

Todd, “had felt Hadlock had been unnecessarily acrimonious.”        The letter

elaborated that Hadlock was “incensed that the matter had not been debated

and that various candidates had not been considered” and that he reacted

“vociferously” to the announcement that a candidate had been chosen. This

statement does not appear to defame Hadlock; although it is not flattering, it

is not necessarily injurious to his reputation, especially considering that the

letter Hadlock referred to went on to say that Todd felt that Hadlock had a

point and proposed a meeting to discuss the issue and that as a result of the

meeting, the search for a consultant was reopened. Furthermore, Todd did not

appear to be accusing Hadlock of any particular behavior other than expressing

his views in an acrimonious way. Todd’s statement that the Faculty found

Hadlock’s manner of expressing his disagreement to be acrimonious is clearly

a subjective assertion and therefore not actionable.24

      Hadlock also objected to Appellees’ statements regarding the February 20

meeting. In two of the letters, the Faculty stated that in the meeting, Hadlock



      24
        … See Thomas-Smith, 238 S.W.3d at 507 (holding that purely
subjective assertions are not actionable as defamation).

                                      13
“expressed objections in an extremely vehement and aggressive manner,

casting suspicion on the motives of the search committee and other faculty

members.” While not expressly stating in his response that this statement was

defamatory, Hadlock did dispute its accuracy—he stated that he “was not

accusatory of anything” and that he “did not question the motives of the people

at the department meeting,” and he pointed to his deposition testimony to

support his view of events. In that testimony, he denied accusing anyone of

anything at the meeting but admitted that he had become irritated and had

raised his voice.   Furthermore, attached to one of the letters that Hadlock

alleged contained defamatory statements was a February 22 email from

Hadlock in which he stated that, with respect to the search for a new German

professor, “I find it neither hostile nor unreasonable for faculty members to raise

questions about this matter, and I wonder about the motivations of anyone who

would try to silence or suppress those questions.” Hadlock acknowledged that

there was a dispute in the meeting, that he expressed dissent, that he became

irritated, and that he raised his voice. Thus, Hadlock did not really dispute the

gist of the Faculty’s factual assertions but rather their characterization of his

expression of disagreement as “vehement” and “aggressive.” But their view

of his behavior was a purely subjective assertion and not actionable as




                                        14
defamation.25

      The only purely factual assertion in the letters pointed out by Hadlock in

his response as defamatory were statements that on two occasions, he

slammed a door on a colleague. He contended that these statements were

untrue and defamatory. We disagree that a statement that he slammed doors

rises to the level of defamation, unflattering though it may be. 2 6      This is

particularly true where the rest of the letter contains factual assertions

unchallenged by Hadlock as either untrue or defamatory—such as assertions

that he left meetings in a huff when he disagreed with decisions made in them,

that he sent a colleague an email “wonder[ing] about the motives of anyone

who would try to silence or suppress” his questions about the search for the

German professor, that he sent another email stating that to deny him a voice

in the matter was “a hostile gesture,” and that he sent Fairchild a letter stating

that TCU did not follow the academic tradition of considering dissent and

debate productive. That is, if the other statements were either true or not

defamatory, then an assertion that Hadlock slammed doors could not have

injured his reputation.



      25
           … See id.
      26
       … Bentley, 94 S.W.3d at 587 (stating that a defamatory statement is
one that is injurious to reputation).

                                       15
     Hadlock did not point out in his response any other specific statements

by Appellees as being defamatory. Because we have held that the statements

that Hadlock did point to as evidence of a defamatory communication were not

defamatory, the trial court did not err by granting a no-evidence summary

judgment on that ground.27 We overrule Hadlock’s issue.

     Having overruled Hadlock’s issue, we affirm the trial court’s judgment.




                                              LEE ANN DAUPHINOT
                                              JUSTICE

PANEL: DAUPHINOT and MCCOY, JJ.; and DIXON W. HOLMAN, J. (Senior
Justice, Retired, Sitting by Assignment).

DELIVERED: February 26, 2009




     27
          … See Tex. R. Civ. P. 166a(i).

                                       16
