                                 IN THE
                         TENTH COURT OF APPEALS

                               No. 10-09-00004-CV

DR. LINDA C. HAYNES,
                                                         Appellant
v.

BAYLOR UNIVERSITY,
                                                         Appellee



                          From the 414th District Court
                            McLennan County, Texas
                           Trial Court No. 2004-1888-5


                         MEMORANDUM OPINION


      Dr. Linda C. Haynes appeals the trial court’s summary judgments in favor of

Baylor University. We will affirm.

      Dr. Haynes brought suit against Baylor, alleging in pertinent part: In 1992, Dr.

Haynes became employed by Baylor University School of Nursing as a clinical faculty

member, non-tenure track. In 1997, she was promoted to a tenure-track Assistant

Professor position. In accordance with Baylor’s policies and procedures governing

tenure, she was evaluated by all tenured faculty of the nursing school each academic
year beginning in the 1997-98 academic year. Each year she was recommended for

continued employment as a tenure-track professor. In the fall of 2002, Dr. Haynes

submitted her application to become a fully tenured faculty member, but she was

denied tenure and received a one-year terminal contract for the 2003-04 academic year.

Dr. Haynes’s employment with Baylor terminated at the end of the spring semester in

2004.

        Immediately after she was notified that she had been denied tenure at Baylor, Dr.

Haynes initiated an administrative appeals process with the university, but she received

no satisfactory explanation for her tenure denial. Thus, she brought this suit against

Baylor. After filing suit, she learned that she had been recommended for tenure by the

majority of the tenured faculty of the School of Nursing, by the Dean of the School of

Nursing, and by the majority of the members of the University Tenure Committee, but

that tenure was nevertheless denied by Baylor administrators. She also learned that an

individual who was not recommended for tenure by her tenured faculty peers, by her

Dean, or by the majority of the members of the University Tenure Committee was

granted tenure by Baylor administrators. Dr. Haynes further learned that non-tenure-

track faculty delivered negative letters directly to Baylor administrators at or about the

time that the University Tenure Committee was considering her application for tenure.

The letters included information that was “provably false and misleading.”

        Dr. Haynes alleged a cause of action for breach of contract, among others, against

Baylor. Specifically, Dr. Haynes alleged that Baylor breached its Personnel Policies and

Procedures relating to the granting and/or denial of tenure by (1) allowing non-tenured

Haynes v. Baylor Univ.                                                              Page 2
faculty to provide information directly to administrators relating to the award or denial

of tenure to a tenure candidate; and (2) allowing for tenure decisions that are made as a

result of arbitrary and capricious actions, to-wit: (a) denying tenure to a tenure-track

faculty member on the basis of information furnished by non-tenure-track faculty

directed only to the attention of Baylor administrators; and (b) granting tenure to a

tenure-track faculty member when tenured faculty within the candidates’ department,

the Dean, and the University Tenure Committee opposed the granting of tenure and the

decision was made solely by the Baylor administrators.

       Baylor filed traditional and no-evidence motions for summary judgment. The

trial court granted both motions without specifying the grounds.

       In her sole issue, Dr. Haynes contends that the trial court erred in granting

summary judgment for Baylor on her breach of contract claims.1

       We review a trial court’s summary judgment de novo. Provident Life & Accident

Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A no-evidence motion for summary

judgment is essentially a motion for pretrial directed verdict. Mack Trucks, Inc. v. Tamez,

206 S.W.3d 572, 581 (Tex. 2006); see also Humphrey v. Pelican Isle Owners Ass’n, 238

S.W.3d 811, 813 (Tex. App.—Waco 2007, no pet.). Once such a motion is filed, the

burden shifts to the nonmoving party to present evidence raising an issue of material

fact as to the elements specified in the motion.               Tamez, 206 S.W.3d at 583.           The

nonmovant must produce “summary judgment evidence raising a genuine issue of



       1Dr. Haynes has not raised any issues as to whether the trial court erred in granting summary
judgment for Baylor on her other causes of action.

Haynes v. Baylor Univ.                                                                           Page 3
material fact.” TEX. R. CIV. P. 166a(i); see id. Comment 1997 (“To defeat a motion made

under paragraph (i), the respondent is not required to marshal its proof; its response

need only point out evidence that raises a fact issue on the challenged elements.”). A

genuine issue of material fact exists if more than a scintilla of evidence establishing the

existence of the challenged element is produced. King Ranch, Inc. v. Chapman, 118

S.W.3d 742, 751 (Tex. 2003). More than a scintilla of evidence exists when the evidence

“rises to a level that would enable reasonable and fair-minded people to differ in their

conclusions.” Id. (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.

1997)). On the other hand, the evidence amounts to no more than a scintilla if it is “so

weak as to do no more than create a mere surmise or suspicion” of fact. Id. When

determining if more than a scintilla of evidence has been produced, the evidence must

be viewed in the light most favorable to the nonmovant. Ford Motor Co. v. Ridgway, 135

S.W.3d 598, 601 (Tex. 2004).

       In reviewing a traditional motion for summary judgment, we must consider

whether reasonable and fair-minded jurors could differ in their conclusions in light of

all of the evidence presented. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754,

755 (Tex. 2007). We must consider all the evidence in the light most favorable to the

nonmovant, indulging every reasonable inference in favor of the nonmovant and

resolving any doubts against the motion. See id. at 756.

       When a successful summary judgment movant presents both traditional and no-

evidence grounds, we must uphold the summary judgment if it can be sustained under



Haynes v. Baylor Univ.                                                               Page 4
either method. Bradford Partners II, L.P. v. Fahning, 231 S.W.3d 513, 517 (Tex. App.—

Dallas 2007, no pet.).

        Dr. Haynes’s revised letter of appointment to the faculty of Baylor for the Fall

2002 and Spring 2003 semesters, which was signed by Dr. Haynes and Baylor’s

President, stated that her employment contract with Baylor consisted of the revised

letter of appointment and the “applicable provisions of the Baylor University Personnel

Policy Manual, which Baylor may change from time to time.” See Halper v. Univ. of the

Incarnate Word, 90 S.W.3d 842, 845 (Tex. App.—San Antonio 2002, no pet.) (“An

unsigned paper may be incorporated by reference in a signed agreement.”). Baylor’s

Personnel Policy Manual included a detailed policy dealing with tenure, entitled

Tenure Policy and Procedures of Baylor University, BU-PP 704. It provided in pertinent

part:

        III. Tenure Process

        The tenure process for tenure-track faculty not transferring prior research
        or teaching credit toward tenure is as follows. . . .

        ....

        C. Tenure Review

        Tenure will not be awarded by default; it is the responsibility of the tenure
        candidate to demonstrate conclusively why he/she should be given
        tenure at Baylor. If the tenure candidate fails to do so during the Tenure
        Review year, a terminal letter of appointment will be issued for the
        succeeding year. The sixth year of service at Baylor (or equivalent prior
        credit granted for employment at another institution and service at
        Baylor) is designated the Tenure Review year.

        The tenure-track faculty member, all available tenured departmental
        faculty, the departmental chairperson, the dean, and the University

Haynes v. Baylor Univ.                                                                  Page 5
       Tenure Committee, the Provost and Vice President for Academic Affairs,
       and the President participate in the review process. The following are the
       responsibilities of each participant in this process:

       ....

       5. The responsibilities of the University Tenure Committee Chairperson
       are as follows:

               a. Secure a list of tenure candidates from the Assistant Provost for
               Academic Services at the beginning of the Fall semester.

               b. Secure from the deans a list of the tenured departmental faculty
               members from the deans to receive tenure evaluation forms.

               c. Send appropriate documents to the candidate and the tenured
               departmental faculty members.

               d. Monitor the return of acknowledgment forms, departmental
               faculty member evaluation forms, and receipt of credential
               notebooks.

               e. Arrange for and conduct meetings of the University Tenure
               Committee. Obtain appropriate additional information requested
               by the committee members. Make any personal contacts with the
               candidates as required to obtain additional information.

               f. Complete a summary report for each candidate and forward the
               Committee recommendations to the Provost and Vice President for
               Academic Affairs with a copy to each Tenure Committee member.

               g. Forward all tenure documents, including ballots, to the
               Assistant ProvostDean [sic] for Academic Services.

       ....

       7. The responsibilities of the Provost and Vice President for Academic
       Affairs are as follows:

               a. Review each case and make a recommendation to the President.

               b. Submit all relevant material         and    Tenure   Committee
               recommendations to the President.

Haynes v. Baylor Univ.                                                                Page 6
               c. Report the President’s decision regarding the granting or denial
               of tenure to the Chairperson of the Tenure Committee.

               d. Report the President’s decision regarding the granting or denial
               of tenure to the appropriate dean and departmental chairperson.
               After final tenure decisions have been made, the Provost and Vice
               President for Academic Affairs will communicate to each dean the
               tenure decision made for each faculty member within the dean’s
               academic unit, and, in the case of successful tenure candidate(s),
               will provide the dean a summary of the conclusions reached during
               the review process regarding strengths and weaknesses of the
               candidate.

       8. The responsibilities of the President are as follows:

               a. Consult with the Provost and Vice President for Academic
               Affairs and make the final decision regarding the granting or denial
               of tenure. The decision of the President shall be final and binding.

               b. Sign a letter to the candidate conveying this decision to be
               delivered as stated in III.C.4.d.

               c. Report the decision to the Provost and Vice President for
               Academic Affairs.

       ....

       G. Implementation

       ....

       3. Additionally, The [sic] procedures contained in this policy describe the
       system for evaluating tenure-track faculty members as that system ideally
       should work. Each participant in the process should strive to meet his or
       her important responsibilities as outlined in this policy and should
       encourage other participants in the process to fulfill their responsibilities.
       Nonetheless, there will invariably be circumstances when participants in
       the process fail to fully and completely comply with their responsibilities
       under this policy. If such an error is promptly brought to the attention of
       the University prior to any final tenure decision through the Provost and
       Vice President for Academic Affairs, the University will make reasonable
       efforts to correct the error if practicable. However, recognizing that such

Haynes v. Baylor Univ.                                                                  Page 7
       errors will invariably occur and that tenure should be awarded based on
       the merits of the candidate rather than the performance of participants in
       the process of evaluation, an error in complying with the requirements of
       this policy shall in no event justify the award of tenure and shall not
       provide the basis for any legal claim against the University or against
       participants in the process of evaluation.

       One of Baylor’s grounds for traditional summary judgment was that the

procedural error alleged by Dr. Haynes in the tenure review process could not amount

to a breach of contract because Section G.3. of the tenure policy states that an error in

complying with the policy will not justify the award of tenure and shall not provide the

basis for any legal claim against Baylor.

       Our primary concern in interpreting the contract is to ascertain the true

intentions of the parties as expressed in the instrument. Seagull Energy E & P, Inc. v.

Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006). If the written instrument is so

worded that it can be given a definite or certain legal meaning, then it is not ambiguous,

and we will construe the contract as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393

(Tex. 1983). Terms are given their plain, ordinary, and generally accepted meaning,

unless the instrument shows the parties used them in a technical or different sense.

Heritage Res., Inc. v. Nations Bank, 939 S.W.2d 118, 121 (Tex. 1996). We must examine

and consider the entire writing in an effort to harmonize and give effect to all

provisions so that none are rendered meaningless. J.M. Davidson, Inc. v. Webster, 128

S.W.3d 223, 229 (Tex. 2003). To the extent of any conflict, specific provisions control

over more general ones. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133-34 (Tex. 1994).




Haynes v. Baylor Univ.                                                               Page 8
       We conclude that, based on the unambiguous language of Section G.3. of the

tenure policy in this case, the error alleged by Dr. Haynes in the tenure review process

could not provide the basis for a breach of contract claim against Baylor. Thus, the trial

court did not err in granting summary judgment for Baylor on Dr. Haynes’s breach of

contract claims because Baylor met its burden of establishing that it was entitled to

judgment as a matter of law. See TEX. R. CIV. PROC. 166a(c); Sw. Elec. Power Co. v. Grant,

73 S.W.3d 211, 215 (Tex. 2002); see also Halper, 90 S.W.3d at 845-47 (upholding summary

judgment in favor of university because evidence conclusively established that

university did not breach Faculty Handbook requirements with regard to procedures to

be followed in making tenure decision).

       We overrule Dr. Haynes’s sole issue and affirm the trial court’s judgments.



                                                REX D. DAVIS
                                                Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed December 22, 2010
[CV06]




Haynes v. Baylor Univ.                                                               Page 9
