Opinion issued November 29, 2012.




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                              NO. 01-11-00973-CV
                           ———————————
             CORNELIUS C. SULLIVAN JR. D.D.S., Appellant
                                       V.
                   PETER T. TRIOLO JR. D.D.S., Appellee


                    On Appeal from the 80th District Court
                            Harris County, Texas
                      Trial Court Case No. 2007-11197



                         MEMORANDUM OPINION

      Dr. Cornelius C. Sullivan Jr. appeals the trial court’s rendition of a take-

nothing judgment on his defamation claims against Dr. Peter T. Triolo Jr. Sullivan

sued Triolo over two allegedly defamatory letters. Triolo moved for summary

judgment on various defensive theories, which the trial court granted. On appeal,
Sullivan contends that the trial court erred by denying him the opportunity to

depose Triolo and another witness and that Triolo did not establish his right to

summary judgment as a matter of law. We affirm.

                                  Background

      Since 1989, Sullivan worked as a non-tenured associate professor at the

University of Texas Health Science Center at Houston—Dental Branch in the

Department of Restorative Dentistry and Biomaterials.       On August 15, 2003,

Triolo, the chair of the department, wrote a letter about Sullivan to the Dental

Branch’s Faculty Appointment, Promotion, and Tenure Committee as part of the

ordinary six-year review process for faculty.     In the letter, Triolo expressed

“serious concerns” about Sullivan’s performance. Triolo stated that based on

“student evaluations and my own personal observations” Sullivan’s attendance had

been inconsistent. Triolo summarized Sullivan’s performance in the prior six years

as, “at best, mediocre.” At the six-year review, Sullivan received a “Satisfactory”

rating, the highest available—the other ratings being “Satisfactory with Comment”

and “Not Satisfactory.”

      In July 2004, Dr. Flaitz, Dean of the Dental Branch, notified Sullivan that

his faculty appointment would not be renewed for the coming year. A few days

later, Dr. Willerson, another member of the Dental Branch’s administration,

informed Sullivan that his appointment would end on August 31, 2004. Sullivan’s

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salary, however, was listed on the budget for the upcoming year in August 2004.

Inquiring about the reasons for his termination, Triolo told Sullivan it was due to

“budget problems.” Several days later, though, Dean Flaitz informed Sullivan that

his termination resulted from his “inadequate performance.” On August 31, 2004,

Triolo wrote another letter. This second letter, which was addressed to Dean

Flaitz, stated, in its entirety:

       Dr. Cornelius Sullivan was notified last month that his appointment as
       a Clinical Associate Professor in the Department of Restorative
       Dentistry and Biomaterials with the University of Texas Dental
       Branch at Houston would not be renewed for the upcoming year. He
       did not submit a year-end activity report for the 2003-2004 school
       year in order for a faculty evaluation to be performed. However, Dr.
       Sullivan’s faculty evaluation over the past few years has been in the
       bottom 10% of the faculty ratings.

       In April 2005, Sullivan filed a complaint with the Equal Employment

Opportunity Commission and the Texas Commission on Human Rights. After

receiving a right-to-sue letter, Sullivan sued the Dental Branch, Flaitz, Willerson,

and Triolo concerning the events surrounding his termination. Initially, Sullivan

brought suit in federal district court, but the court dismissed for lack of jurisdiction

based on Eleventh Amendment immunity. Sullivan then filed this suit in state

court, asserting causes of action against the Dental Branch for age discrimination

in violation of the Age Discrimination in Employment Act and the Texas

Commission on Human Rights Act and for violation of his right to due process.

Sullivan also sued Triolo, Flaitz, and Willerson for defamation.
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      The Dental Branch, Triolo, Flaitz and Willerson filed a plea to the

jurisdiction. The trial court granted the plea to the jurisdiction, dismissing all of

Sullivan’s claims except for his defamation claims against the individuals.

Sullivan appealed, and this court affirmed. Sullivan v. Univ. of Tex. Health Sci.

Ctr. at Houston Dental Branch, No. 01-08-00327-CV, 2008 WL 5179023, at *4

(Tex. App.—Houston [1st Dist.] Dec. 11, 2008, pet. denied), cert. denied, 130 S.

Ct. 471 (2009). Triolo, Flaitz and Willerson filed motions for summary judgment

on Sullivan’s remaining claim for defamation. The trial court denied the motions.

Flaitz alone appealed.    This court reversed, holding that Flaitz conclusively

established her defense of official immunity. Flaitz v. Sullivan, No. 01-10-00806-

CV, 2011 WL 346213, at *5 (Tex. App.—Houston [1st Dist.] Feb. 3, 2011, pet.

denied).    Triolo again moved for summary judgment, asserting defenses of

limitations, qualified privilege, immunity under Texas Labor Code section

103.004, and official immunity. The trial court granted the motion. Sullivan also

nonsuited Willerson; thus, the trial court’s rendering of summary judgment in

favor of Triolo was a final judgment. Sullivan appeals.

           Motion to Compel Depositions and Motion for Continuance

      In his first issue, Sullivan argues that the trial court erred in denying his

motion to compel depositions of Flaitz and Triolo and his motion for continuance,




                                         4
denying him of the opportunity to discover summary judgment evidence before the

August 24, 2011, summary judgment hearing.

      “When a party contends that it has not had an adequate opportunity for

discovery before a summary judgment hearing, it must file either an affidavit

explaining the need for further discovery or a verified motion for continuance.”

Tenneco Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) (citing

TEX. R. CIV. P. 166a(g)). The party seeking a continuance for additional discovery

must, in the motion or accompanying affidavit, describe the evidence sought, state

with particularity the diligence used to obtain the evidence, and explain why the

continuance is necessary. TEX. R. CIV. P. 252; West v. SMG, 318 S.W.3d 430, 443

(Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing Rocha v. Faltys, 69 S.W.3d

315, 319 (Tex. App.—Austin 2002, no pet.)). We review the trial court’s ruling

for an abuse of discretion. West, 318 S.W.3d at 443 (citing BMC Software Belg.,

N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002)). In determining whether the

trial court abused its discretion, we may consider such factors as: (1) the length of

time the case has been on file; (2) the materiality and purpose of the discovery

sought; and (3) whether due diligence was exercised in obtaining the discovery.

Id. (citing Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex.

2004)); Levinthal v. Kelsey-Seybold Clinic, P.A., 902 S.W.2d 508, 510 (Tex.

App.—Houston [1st Dist.] 1994, no writ).

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      We conclude that the record does not support Sullivan’s contention that the

trial court abused its discretion in denying Sullivan’s motion for continuance. This

case was filed in state court in February 2007.1 The record does not show any

attempt by Sullivan to take Triolo’s or Flaitz’s depositions until June 2010, more

than three years after filing. This delay weighs against Sullivan. See West, 318

S.W.3d at, 443 (stating “no bright line rule exists regarding the length of time a

case has been on file,” but “Texas courts have overruled such motions in cases on

file for fewer than nine months”) (citing Rest. Teams Int’l, Inc. v. MG Sec. Corp.,

95 S.W.3d 336, 339–40 (Tex. App.—Dallas 2002, no pet.)). Sullivan also failed to

demonstrate that he exercised due diligence during the three-year period. During

this period, Sullivan requested and responded to written discovery, including

requests for production of documents, and was himself deposed.               The record

however is silent concerning any efforts on Sullivan’s part to take the depositions

of Flaitz or Triolo.2 Considering the length of the delay, we hold that the trial court


1
      Sullivan first filed suit relating to his termination in September 2005, in federal
      court.
2
      Sullivan’s motion to compel and for continuance asserts that the trial court granted
      his motion to compel depositions in August 2010, but he was unable to take the
      depositions because, very shortly after the motion to compel was granted, Flaitz
      filed her interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE ANN.
      § 51.014(b) (West Supp. 2012) (providing that interlocutory appeal of order
      denying summary judgment on immunity grounds “stays all other proceedings in
      the trial court pending resolution of that appeal”). But Sullivan presented no
      evidence showing his diligence during the three-year period between the time this
      state suit was filed in February 2007 and the time he moved to compel depositions
      in June 2010.
                                           6
did not abuse its discretion in denying Sullivan’s motion for continuance. See id.

(holding party seeking continuance did not meet burden when 29 months had

elapsed since filing, no evidence showed efforts to take depositions in timely

manner, and affidavit in support of continuance did not explain witnesses’

expected testimony, how it related to summary judgment, or that it was not

available from another source).

      We overrule Sullivan’s first issue.

                               Summary Judgment

      In his remaining issues, Sullivan challenges the merits of the trial court’s

summary judgment ruling.

A.    Standard of review

      We review a trial court’s summary judgment de novo. Travelers Ins. Co. v.

Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented

in the light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801, Inc.

v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). If a trial court grants summary

judgment without specifying the grounds for granting the motion, we must uphold

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the trial court’s judgment if any ground is meritorious. FM Props. Operating Co.

v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000); Beverick v. Koch Power, Inc.,

186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). In a

traditional summary judgment motion, the movant has the burden to show that no

genuine issue of material fact exists and that the trial court should grant judgment

as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison

Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant moving

for traditional summary judgment on an affirmative defense must conclusively

establish each element of the affirmative defense. Sci. Spectrum, Inc. v. Martinez,

941 S.W.2d 910, 911 (Tex. 1997).

B.    Official immunity

      Within his third, fourth, and fifth issues, Sullivan contends that summary

judgment was improper on Triolo’s official immunity defense because Triolo did

not conclusively establish that he acted in good faith and a fact issue remains on

that question.

      1.     Law Pertaining to Official Immunity

      Official immunity protects public officials from personal liability for their

performance of: (1) discretionary duties (2) in good faith and (3) within the scope

of their authority. Tex. Dep’t of Pub. Safety v. Rodriguez, 344 S.W.3d 483, 488–89

(Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing Telthorster v. Tennell, 92

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S.W.3d 457, 461 (Tex. 2002)).         Sullivan does not dispute that Triolo was

performing a discretionary duty within the scope of his authority, when he, as the

chair of the department, wrote the two complained-of letters concerning the job

performance of Sullivan, who was one of the professors in Triolo’s department.

The question of whether Triolo is protected by official immunity turns on whether

he conclusively established that he acted in good faith when he wrote the two

letters.

       Whether an official’s actions satisfy the good faith element of the official

immunity defense requires the defendant official to prove that a reasonable official

under the same or similar circumstances could have believed the defendant’s

conduct was justified. Id. (citing City of Lancaster v. Chambers, 883 S.W.2d 650,

656–57 (Tex. 1994)). If the official’s proof satisfies this objective standard, “the

nonmovant must meet ‘an elevated standard of proof’ to defeat the official

immunity defense.”      Id. at 490 (quoting Chambers, 883 S.W.2d at 656).

Specifically, “[t]he nonmovant must show that ‘no reasonable official could have

thought that the facts were such that they justified the official’s conduct’”—that is,

that a public official in the same or similar circumstances “could not have

reasonably reached the decision in question.” Id. (quoting Chambers, 883 S.W.2d

at 657 & n.7). The official’s acts are reviewed based on the information the




                                          9
official possessed when the conduct occurred. Ballantyne v. Champion Builders,

Inc., 144 S.W.3d 417, 426 (Tex. 2004); Rodriguez, 344 S.W.3d at 491.

      2.    Analysis

      Sullivan contends that Triolo did not establish that he acted in good faith or,

alternatively, Sullivan’s own evidence raises a fact issue on the question of good

faith. In his affidavit in support of his motion for summary judgment, Triolo

asserted that he based the content of the two letters on student evaluations and his

personal observations of Sullivan’s declining performance.       Sullivan does not

contend that it was unreasonable for the chair of the department to rely on student

evaluations and his own observations in evaluating a faculty member. Rather,

Sullivan responds that Triolo is not entitled to official immunity because no

reasonable person in Triolo’s position could have thought the facts were such that

they justified Triolo’s conduct. Specifically, Sullivan argues that in his six-year

review he received the highest rating available, “Satisfactory.” Sullivan contends

that this “Satisfactory” rating contradicts Triolo’s statement that Sullivan was in

the bottom ten percent of faculty ratings and that he received reviews “at the

bottom end of the departmental scale.”       Sullivan further argues that, because

Triolo, as the chair of Sullivan’s department, was aware of Sullivan’s

“Satisfactory” rating, Triolo knew the “bottom ten percent” statement and other

allegedly defamatory statements were false when Triolo made them. Sullivan

                                        10
contends that no reasonably prudent official in Triolo’s position could have

believed—based on the information he possessed when he wrote the letter—that he

was justified in writing that Sullivan was in the bottom ten percent of faculty

ratings, was receiving scores at the bottom end of the departmental scale, and that

his performance had been “at best, mediocre.”

      Sullivan relied upon this same argument in his unsuccessful attempt to

defeat Flaitz’s assertion of official immunity. As this court pointed out in Flaitz,

“there is no contradiction between the Committee’s conclusion that from 1997

through 2003, Sullivan’s performance overall was ‘satisfactory’ and Triolo’s

characterization that Sullivan’s scores were some of the lowest in his department.”

Flaitz, 2011 WL 346213, at *5.        In other words, all of the faculty in the

department, including Sullivan, could have received “Satisfactory” ratings at their

respective six-year reviews, but, when ranked against one another, Sullivan could

have been in the bottom ten percent. Although Triolo attached a sheet showing the

scores assigned to Sullivan by his department chairs, including Triolo, for the last

eight years, we noted in Flaitz, as we do here, that neither Sullivan nor Triolo

presented summary judgment evidence showing Sullivan’s ranking among his

peers. See id. Sullivan has presented no evidence showing that he was not in the

bottom ten percent or that Triolo (or any reasonable official in Triolo’s position)

must have known that the statement concerning Sullivan’s relative ranking among

                                        11
his peers was false. Sullivan failed to meet his burden to produce evidence that no

official under the same or similar circumstances as Triolo could have believed that

he was justified in writing a letter to department officials noting that Sullivan was

in the “bottom 10% of faculty ratings” or received reviews “at the bottom end of

the departmental scale.”3 See Rodriguez, 344 S.W.3d at 489; see also Flaitz, 2011

WL 346213, *5; Castillo v. Flores, No. 01-05-00760-CV, 2006 WL 488609, at *4

(Tex. App.—Houston [1st Dist.[ Mar. 2, 2006, no pet.) (mem. op.) (holding good

faith element of official immunity established in defamation case where defendant

explained in affidavit she was top college administrator over plaintiff and allegedly

defamatory letters were written to her superiors in response to question concerning

plaintiff’s performance); Davila v. Flores, 6 S.W.3d 788, 793 (Tex. App.—Corpus

Christi 1999, no pet.) (noting that defendants met good faith element of official

immunity defense to defamation claim by affidavit testimony showing

reasonableness of their inquiry into plaintiff’s conduct and dissemination of

information as part of official duties, and plaintiff failed to offer any contradictory

testimony).

      We overrule Sullivan’s third, fourth and fifth issues.


3
      We note that Sullivan, in addition to his own affidavit, included the affidavit of
      another Dental Branch employee, Dr. Mark Connelly. Connelly’s affidavit,
      however, merely mirrors Sullivan’s argument. In his affidavit, Connelly, opines
      that the statements in Triolo’s letters are not supported because the Dental Branch
      gave Sullivan a “Satisfactory” rating on his six-year review.
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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Rebeca A. Huddle
                                             Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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