                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-13-00348-CV


                         DEBRA LAVERIE, PH.D., APPELLANT

                                            V.

                         JAMES WETHERBE, PH.D., APPELLEE

                            On Appeal from the 99th District Court
                                   Lubbock County, Texas
            Trial Court No. 2012-502,988, Honorable William C. Sowder, Presiding

                                    February 20, 2015

                            MEMORANDUM OPINION
                   Before CAMPBELL and HANCOCK and PIRTLE, JJ.


       James Wetherbe, Ph.D., sued Debra Laverie, Ph.D., alleging she slandered him

through two statements she made to Texas Tech University’s provost. After discovery,

Laverie filed a traditional motion for summary judgment claiming immunity from suit

under section 101.106(f) of the Civil Practice and Remedies Code.           The trial court

denied her motion.      She appeals, contending the undisputed facts showed her

statements were made in the general scope of her employment. We will affirm the trial

court’s order.
                                     Background


      At the time of the events giving rise to the litigation, Wetherbe was an associate

dean of the Rawls College of Business Administration at Texas Tech University, and

Laverie was senior associate dean. The University was engaged in a search for a new

dean for the Rawls College, and Wetherbe was among the candidates.


      During the dean search process, the University’s provost, Bob Smith, sent the

following email to the Rawls College faculty and the members of the search committee:


      Dear Colleagues,

      I have been informed by different sources that rumors have emerged from
      the Rawls College about the conduct of the current search for a Rawls
      College Dean. Specifically, we are hearing that the Rawls community and
      professionals outside of Texas Tech are being told that there is a strong
      internal candidate or singular external candidate for the post and that
      additional internal or extramural candidates need not apply. I wish to set
      the record straight.

      The Rawls College Dean search is a totally open search and all qualified
      candidates are invited to apply. The search will come to fruition in an open
      and honest fashion and there is no inside track for anyone.

      If there are further questions about the search I encourage you to contact
      Dr. John Kobza (Associate Dean, Whitacre College of Engineering) who is
      currently serving as Chair of the Rawls College Dean Search Committee.
      He will confer with me as needed. Thank you for your cooperation and
      thank you for helping us spread the word about the authenticity of the
      Rawls College Business Dean search.

      Kind regards, Bob Smith.


      Laverie was the only defendant named in Wetherbe’s suit. The suit alleged that

Smith learned the rumor information from a telephone conversation with Laverie, that

she identified Wetherbe as the source of the rumor, that there was no such rumor, that


                                           2
Laverie fabricated the story, and that all recipients of the email would readily identify

Wetherbe as the “internal candidate.” The suit alleged that Laverie, in the same

telephone conversation, told Smith that an unnamed person in the Rawls College

informed her that Wetherbe was using a “listening device” to eavesdrop on

conversations in the school. The two slanderous statements, Wetherbe alleged, soured

his relationship with Smith and eventually cost him a final interview for the deanship

when he was among the selected leading candidates and cost him a promotion to Horn

Professor, the University’s highest faculty designation. The suit alleged Smith’s email

further defamed him.


        Along with her general denial, Laverie’s answer asserted defenses including

truth, privilege, sovereign and official immunity and the protection of Civil Practice and

Remedies Code section 101.106.1 Laverie’s traditional motion for summary judgment

asserted several grounds, among them the contention she was entitled to dismissal

under section 101.106(f).


        The trial court denied Laverie’s motion for summary judgment. This interlocutory

appeal followed.2


                                                Analysis

        1
         TEX. CIV. PRAC. & REM. CODE ANN. § 101.106 (West 2012). Unless otherwise stated, further
references to “§ 101.106” are to that section of the Civil Practice & Remedies Code.
        2
          We have jurisdiction over an interlocutory order of a district court that “denies a motion for
summary judgment that is based on an assertion of immunity by an individual who is an officer or
employee of the state or a political subdivision of the state.” TEX. CIV. PRAC. & REM. CODE ANN. §
51.014(a)(5) (West 2013). For this purpose, Texas Tech University is treated as a political subdivision.
See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Texas Political Subdivisions Prop./Cas. Joint Self-
Ins. Fund, 212 S.W.3d 320, 324 (Tex. 2006) ("The State's sovereign immunity extends to various
divisions of state government, including agencies, boards, hospitals, and universities"). By moving for
summary judgment under section 101.106(f), Laverie was asserting immunity. Franka v. Velazquez, 332
S.W.3d 367, 371 n.9 (Tex. 2011).

                                                    3
      On appeal, Wetherbe contends the trial court properly denied Laverie’s motion

for summary judgment because in her telephone conversation with Smith she did not

act “within the general scope of [her] employment” under the terms of section

101.106(f).


      We review de novo the trial court's ruling on a summary judgment motion. Mann

Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). The

party moving for traditional summary judgment bears the burden of showing that no

genuine issue of material fact exists and the party is entitled to judgment as a matter of

law. TEX. R. CIV. P. 166a(c). When moving for summary judgment based on an

affirmative defense, such as immunity, the movant bears the burden to conclusively

establish each element of the defense. Morgan v. City of Alvin, 175 S.W.3d 408, 413

(Tex. App.—Houston [1st Dist.] 2004, no pet.) (citing Cathey v. Booth, 900 S.W.2d 339,

341 (Tex. 1995) (per curiam)). If the movant conclusively establishes the affirmative

defense, the burden shifts to the non-movant to raise a disputed fact issue. Id. (citing

Brand v. Savage, 920 S.W.2d 672, 673 (Tex. App.—Houston [1st Dist.] 1995, no writ)).

To determine if the non-movant raises a fact issue, we review the evidence in the light

most favorable to the non-movant, crediting favorable evidence if reasonable jurors

could do so and disregarding contrary evidence unless reasonable jurors could not.

Fielding, 289 S.W.3d at 848 (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.

2005)).


      Section 101.106(f) reads:


      (f) If a suit is filed against an employee of a governmental unit based on
      conduct within the general scope of that employee's employment and if it

                                            4
      could have been brought under this chapter against the governmental unit,
      the suit is considered to be against the employee in the employee's official
      capacity only. On the employee's motion, the suit against the employee
      shall be dismissed unless the plaintiff files amended pleadings dismissing
      the employee and naming the governmental unit as defendant on or
      before the 30th day after the date the motion is filed.

      TEX. CIV. PRAC. & REM. CODE ANN. § 101.106(f).

      A defendant is entitled to dismissal under section 101.106(f) on proof that the

plaintiff's suit (1) was based on conduct within the general scope of the defendant's

employment with a governmental unit and (2) could have been brought against the

governmental unit under the Tort Claims Act. Franka v. Velasquez, 332 S.W.3d 367,

369 (Tex. 2011); Univ. of Tex. Health Sci. Ctr. v. Bailey, 332 S.W.3d 395, 401 (Tex.

2011). The Tort Claims Act defines "scope of employment" as "the performance for a

governmental unit of the duties of an employee's office or employment and includes

being in and about the performance of a task lawfully assigned to an employee by

competent authority." TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(5).


      As plead, Wetherbe’s suit alleged Laverie intentionally defamed him. In Franka,

the court stated that “section 101.106(f)’s two conditions are met in almost every

negligence suit against a government employee” 332 S.W.3d at 381, but noted that

“[w]hether an employee’s intentional tort is within the scope of employment is a more

complex issue.”    Id. at n.63.   The court cited generally to section 7.07 of the

Restatement (Third) of Agency. Id.


      In a per curiam opinion issued last year, the court elaborated on its reference to

the Restatement of Agency. Alexander v. Walker, 435 S.W.3d 789, 792 (Tex. 2014)

(per curiam). After quoting the Tort Claims Act’s definition of scope of employment, the


                                           5
court stated that “[t]he Restatement (Third) of Agency provides additional clarity by

defining the term negatively.” Id. The opinion then quoted the second sentence of the

Restatement’s section 7.07(2), which provides, "[a]n employee's act is not within the

scope of employment when it occurs within an independent course of conduct not

intended by the employee to serve any purpose of the employer." Id. (quoting

Restatement (Third) of Agency § 7.07(2)).3


          At least three courts of appeals have applied the Restatement of Agency’s

language to scope of employment determinations under section 101.106(f) in cases

involving allegations of intentional torts. Reece v. Johnson, No. 10-12-00077-CV, 2013

Tex. App. LEXIS 10621 (Tex. App.—Waco Aug. 22, 2013, no pet.) (mem. op.) (alleged

theft of personal property by correctional officers); Redburn v. Garrett, No. 03-12-00215-

CV, 2013 Tex. App. LEXIS 6005 (Tex. App.—Corpus Christi May 16, 2013, pet. denied)

(mem. op.) (suit to enjoin alleged trespass by municipal employees); Mason v. Wood,

No. 09-12-00246-CV, 2013 Tex. App. LEXIS 2692 (Tex. App.—Beaumont March 14,

2013, no pet.) (mem. op.) (alleged theft and fraud by correctional officers).


          Laverie relies principally on opinions applying the definition of scope of authority

from City of Lancaster v. Chambers. 883 S.W.2d 650, 658 (Tex. 1994) ("An official acts

within the scope of her authority if she is discharging the duties generally assigned to

her"); see, e.g., Anderson v. Bessman, 365 S.W.3d 119, 124 (Tex. App.—Houston [1st


3
    The Restatement’s section 7.07(2) reads, in its entirety:

          An employee acts within the scope of employment when performing work assigned by
          the employer or engaging in a course of conduct subject to the employer's control. An
          employee's act is not within the scope of employment when it occurs within an
          independent course of conduct not intended by the employee to serve any purpose of the
          employer. Restatement (Third) of Agency § 7.07(2) (2006).

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Dist.] 2011, no pet.) (quoting Chambers). In view of the Supreme Court’s recent

application of the Restatement language, however, we include consideration of its

negative definition as well. Alexander, 435 S.W.3d at 792.4


        Opinions      applying     the    Chambers        language      to    scope     of    employment

determinations under section 101.106(f) recognize that conduct may fall within the

scope of employment “even if done in part to serve the purposes of the employee or a

third person.”      Anderson, 365 S.W.3d at 125-26 (citation omitted).                       Likewise, the

Restatement language quoted in Alexander takes an act outside the scope of

employment only when it is part of an independent course of conduct not intended by

the employee to serve any purpose of the employer. 435 S.W.3d at 792.5


        On appeal Wetherbe acknowledges that speaking with the University’s provost

about occurrences at the Rawls College may fall within Laverie’s duties for the

University, but urges that summary judgment was properly denied because the record

does not conclusively establish that, on the occasion of their conversation regarding




        4
          We do so despite the language in Comment a to the Restatement’s section 7.07, stating, “[t]his
section [7.07] is inapplicable to an employer’s liability for one employee’s tortious conduct toward a fellow
employee, a topic being considered by Restatement Third, Employment Law, in preparation as
Restatement Third, Agency, was completed.” See Restatement (Third) of Agency § 7.07, cmt. a. Laverie
and Wetherbe are, of course, fellow employees of the Rawls College.
        5
            Among the cases involving intentional torts within the scope of employment cited in the
Reporter’s Notes to section 7.07 is GTE Southwest v. Bruce, 998 S.W.2d 605 (Tex. 1999). Restatement
(Third) of Agency § 7.07 (Reporter’s Notes (c) (2006)). There, the court found evidence to support a
jury’s finding that a supervisor was acting in the scope of his employment when he intentionally inflicted
emotional distress on other employees. Id. at 617-18. The court noted an employer may be liable for an
intentional tort committed in the accomplishment of a duty entrusted to the employee, “rather than
because of personal animosity.” Id. at 618. Finding GTE cited no evidence that the supervisor’s actions
“were motivated by personal animosity rather than a misguided attempt to carry out his job duties,” the
court affirmed the jury’s conclusion.


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Wetherbe, she was serving any purpose of her employer, as opposed to furthering her

own purposes only. We must agree.


       Reiterated, it was Laverie’s burden when seeking summary judgment to establish

conclusively that she was acting within the scope of her employment when she

conversed with Smith. See Cathey, 900 S.W.2d at 341. The summary judgment record

contains no direct evidence of Laverie’s intentions when she spoke with Smith about

Wetherbe before Smith sent his email, and does not conclusively establish the nature of

her motivation in doing so, either as to the dean search or as to the report of Wetherbe’s

use of a listening device. Consequently, Laverie has failed to satisfy her traditional

summary judgment burden required for dismissal under section 101.106(f).6                  For that

reason, the trial court’s ruling on Laverie’s motion for summary judgment was correct.

We overrule Laverie’s appellate issue and affirm the order of the trial court.




                                                      James T. Campbell
                                                          Justice




       6
         Laverie also filed a no-evidence motion for summary judgment. TEX. R. CIV. P. 166(a)(i). We
need not address the no-evidence motion. We also do not address the second element of section
101.106(f) immunity, requiring proof Wetherbe’s suit could have been brought against the University
under the Tort Claims Act. See Franka, 332 S.W.3d at 381 (suit could have been brought under the Tort
Claims Act if “in tort and not under another statute that independently waives immunity”).

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