                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-13-00334-CV


                                   MIKE LEACH, APPELLANT

                                                   V.

  CRAIG JAMES, ESPN, INC., AND SPAETH COMMUNICATIONS, INC., APPELLEES

                              On Appeal from the 99th District Court
                                     Lubbock County, Texas
              Trial Court No. 2009-550,359, Honorable William C. Sowder, Presiding

                                         November 21, 2014

                                               Opinion
                      Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

                                   “There I go, turn the page.”1

      Before us once again is an appeal from Coach Mike Leach. The dispute centers

upon his termination as head coach of the Texas Tech University (University) football

team. This page of the story concerns his suit against Craig James (James), ESPN,

Inc., and Spaeth Communications, Inc.               Leach sued the three alleging claims of

defamation, tortious interference with a contract, and civil conspiracy to tortiously

interfere with his contract. Purportedly, all three uttered falsehoods against him as they

endeavored to terminate or otherwise interfere with his contractual relationship with the

      1
          “Turn the Page,” Bob Seger. With all due respect.
University. The three defendants filed separate motions for summary judgment. The

trial court granted each and entered judgment denying Leach recovery.                        He then

appealed.2 We affirm.

       James/Spaeth

       James and Spaeth urged numerous grounds to defeat liability in their respective

summary judgment motions. One, however, is dispositive. It pertains to causation.

Both movants asserted that, as a matter of law, their conduct was not the legal or

proximate cause of the University’s decision to terminate its contract with Leach. This

was allegedly so because the decision emanated from the University’s own

independent investigation into the incident. Citing our opinion in Bennett v. Computer

Assocs. Int’l, 932 S.W.2d 197 (Tex. App.—Amarillo 1996, writ denied) and the opinion

of the Austin Court of Appeals in Moriarty v. Malcolm Pirnie, Inc., No. 03-08-00665-CV,

2010 WL 1170244, 2010 Tex. App. LEXIS 2205 (Tex. App.—Austin March 25, 2010, no

pet.) (mem. op.), James and Spaeth believed that the University’s investigation and the

action undertaken subsequent thereto attenuated any causal link between James’ effort

to cause Leach to be fired and the actual firing.3 We agree.4




       2
          Leach did not appeal the entry of summary judgment upon his defamation claims. So, that
aspect of the suit is not before us.
       3
           Leach did not expressly address this ground in his appeal. That would normally require us to
affirm the summary judgment. Burnett Ranches, Ltd. v. Cano Petroleum, Inc., 289 S.W.3d 862, 870 (Tex.
App.—Amarillo 2009, pet. denied) (stating that one appealing a summary judgment must illustrate why
none of the grounds urged below support it). To the extent that his general allegations about causation
can be interpreted as effort to discuss the topic, we consider the argument out of caution.
       4
          It goes without saying that a defendant may defeat a cause of action via summary judgment by
disproving, as a matter of law, one of its elements. Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 456
(Tex. 1998). Elemental to a claim of tortious interference with a contract is, among other things, proof
that the interference in question proximately caused the injury of which he complains. Id. at 456;
Richardson-Eagle, Inc. v. William M. Mercer, Inc., 213 S.W.3d 469, 474 (Tex. App.—Houston [1st Dist.]
2006, pet. denied). Proximate cause exists when the act is a substantial factor in bringing about the
result. Id.
                                                    2
      Akin to Leach here, the plaintiff in Bennett v. Computer Assocs, Int’l sued

Computer Associates for tortious interference with contract and defamation. Bennett v.

Computer Assocs, Int’l, 932 S.W. 2d at 199.          The contract in question involved

Bennett’s employment agreement with Goal Systems International, Inc. and related

compensation due from the same entity for computer programs it bought from him.

Apparently, some of the programs contained code owned by Computer Associates.

The latter sued Bennett’s employer and ultimately settled that dispute. During this time,

the employer also began its own investigation to determine whether Bennett had done

that of which he was accused. The accusations were verified, and Bennett’s employer

fired him. Bennett then sued Computer Associates. The latter moved for summary

judgment, and one of the various grounds urged involved causation or the lack thereof.

Furthermore, the summary judgment record revealed that Bennett not only engaged in

the misconduct of which he was accused but also that he was fired for doing so. This

led us to conclude that Computer Associates “established, as a matter of law, that [the

employer] acted unilaterally upon information garnered through its own investigation,”

id. at 205, as opposed to action undertaken by Computer Associates. In other words,

Computer Associates may have initiated the investigation by pursuing its complaints

about Bennett, but the findings from the ensuing investigation undertaken by his

employer were the cause of his discharge.

      Similarly, in Moriarty v. Malcolm Pirnie, Inc., 2010 Tex. App. LEXIS 2205, at *6,

the reviewing court was asked to assess whether summary judgment upon a claim of

tortious interference was appropriate. Apparently, Moriarty was removed as project

manager for a particular City of Austin project. The removal occurred after information

about a relationship and potential conflict of interest between Moriarty and a third party


                                            3
was revealed to the city by representatives of Malcolm Pirnie, Inc. The city manager

investigated the allegation and confirmed the existence of a relationship posing such a

potential conflict. Thereafter, she decided to remove Moriarty from the project. The

reviewing court recognized that the summary judgment record contained evidence

indicating that there may have been “errors in its allegations concerning Moriarty.” Id.

at *13 n.9. Nonetheless, the city manager testified that “‘the one thing that did not

change was the very distinct conflict of interest.’” Id. Moreover, her testimony that the

decision was “based on an existing romantic and financial relationship that could be

perceived as a conflict was clear, direct, positive and uncontradicted,” according to the

court. Id. at *15. And, given the absence of “evidence or even allegation that the

results of the investigation—as to the existence of the relationship—were inaccurate,

an improper basis for requesting the project manager's removal, or a pretext for an

unstated justification for [the city manager’s] decision,” the court concluded that

Malcolm Pirnie had “demonstrated as a matter of law that the cause for the City's

requesting Moriarty's termination was the existence of a romantic and financial

relationship . . . not the . . . original allegations that precipitated the City's investigations

into the situation.” Id. at *15-16.

       We take from Bennett and Moriarty several observations. First, accusing an

employee of impropriety and demanding his termination does not ipso facto mean the

allegation proximately caused the employee’s termination.               Second, independent

investigation undertaken by the employer (even if instigated by inaccurate accusations

of misconduct) that creates or verifies basis for termination attenuates the legal nexus

between the complaints instigating the investigation and the ultimate decision.

However, the record must establish that the decision to terminate was based upon


                                                4
considerations or circumstances arising from the independent investigation.                        In a

summary judgment setting, evidence of the latter must be of sufficient ilk to permit such

an inference as a matter of law; one cannot so infer based upon unclear or

contradictory evidence.

        Here, the record indisputably illustrated that James’ son, an athlete on the

University football team, suffered a concussion and did not participate in team practice.

Noticing the student near or on the field wearing street clothes, Leach viewed him as a

distraction and grew upset and concerned about his appearance and attitude. The

coach did not want the student “loafing” while others were working.5 So, he directed a

subordinate to place the injured athlete in a dark place near the practice field and stand

during the entire practice time. Leach acknowledged telling Steve Pincock to “‘lock his

fucking pussy ass in a place so dark that the only way he knows he has a dick is to

reach down and touch it.’” The athlete was so secluded in an equipment shed for a

period of time spanning from one to several hours, depending on who is believed. He

was also directed to stand the entire time. Similar treatment occurred when the team

next practiced; however, on that day the student was placed in a dark media room after

the chairs were removed. Leach approved of this, according to the record.




        5
            Leach rationalized his conduct thusly:

        He had been a distraction and was violating team rules, so I wanted him away from the team.
        And as far as the darkness, you know, he had overly sensitive parents, so I wanted him out of the
        light. I wanted him somewhere where a ball or a body couldn't hit him, and I wanted him
        somewhere where he wouldn't exert himself to make sure that he was protected. But, you know,
        a portion of it is I wanted him away from the team because he was a distraction and defied team
        rules.

When asked if he had ever treated another athlete similarly, Leach answered “No, I didn’t” and
acknowledged never before directing a trainer to place an athlete suffereing from a brain concussion in a
“pitch dark place.”


                                                     5
         Upon hearing of his son’s treatment, James (a commentator for ESPN)

contacted one or more University officials or board members and lodged a complaint.

Whether then or later, it is clear that he demanded that Leach be fired as head coach of

the team. That those to whom James complained knew of his connection to ESPN was

clear.    Furthermore, various University officials and regents were concerned about

James’ notoriety and the affect it and the complaint may have had on the University.

         Shortly thereafter, the University assigned two individuals to conduct an

investigation into the incident. Among those interviewed were James, his son, a team

physician, Pincock, and Leach. The primary investigator (who was also an attorney

with the University) was aware of the pressure James attempted to exert on University

officials. She also testified, via deposition, that James appeared to be threatening a

lawsuit if appropriate action was not undertaken.      Nonetheless, she counseled the

University chancellor, president, and athletic director that 1) this “was a matter that

needed to be handled between the University and its employee, Mike Leach . . . and

that whatever action they took should not be influenced by the Jameses” and 2) “[w]e

needed to take the actions based on what we believed had happened and not on—and

not based on what the Jameses did.” The investigator also informed them that “there’s

not a lot in dispute” and that Leach “agreed with everything that was said and said that

some of the language that was pretty rough he said ‘that sounds like me, if I didn’t say

it, I wish I had . . . .’”   Simply put, the investigation verified the substance of the

complaint, though not each detail.

         Those to whom the investigator reported arrived at a consensus that the action

undertaken by Leach against the injured athlete was punitive in nature and

inappropriate.    As summarized by the University president when asked “what the


                                             6
material facts were that there was agreement on?”: 1) “that Adam James had received

a concussion”; 2) “[t]hat - - at the practice the next day, he had been required to stand

in a shed or something for most - - all of the practice or most of the practice”; 3) “that

the subsequent day [he] had been required to do the same thing”; and 4) “that this was

a punitive action.”6

       The president initially decided to reprimand Leach. Then he decided that Leach

should execute a letter of apology or as Leach described it, “some statement that, you

know, that we can give to the Jameses to hopefully pacify them.” That option was

discussed with Leach; he refused to sign a document indicating he acted improperly.

Thereafter, the president suspended Leach. The decision to terminate him occurred

after the coach approached the media about the situation.                         As explained by the

president, “[o]n the evening of [December] 28th. . . [i]n response to our letter of

suspension, [Leach] or his attorney . . . got [sic] on the news media disparaging

Tech . . . we had hoped that the or I had hoped specifically that the - - that the letter of

suspension would elicit cooperation. But it really didn't. And it appeared to me at that

point the relationship was probably broken.” The president, further, stated that on “the

morning of the 29th, I sat down with [the athletic director] and said . . . is this a

relationship that can be repaired.” When the athletic director said “no,” “we made the

decision to terminate.”

       The athletic director confirmed that the president “and I came to [the] conclusion

that we couldn’t fix this, that we needed to make the change.” He further commented

that whatever various members of the board of regents desired or suggested was of no

consequence to him. As he explained, “the board can express their views . . . give their

opinions . . . [y]ou can call it pressure, whatever you want to call it,” but “[i]n the end we
       6
           The University president had sole authority to discipline the head football coach.
                                                      7
have to make our decision . . . I’ve been in this job 13 years . . . [and] know the protocol

. . . they couldn’t fire the coach.       That was [the president’s] decision on my

recommendation . . . he could make the decision without my recommendation if he

wanted to.” Yet, “we agreed we needed to make a change” or change “the way things

were going and had gone.”

       That James actively pursued the termination of Coach Leach upon hearing of

the incident involving his son is clear. Similarly clear is that not every aspect of James’

description of the incident actually occurred as described.      Yet, his complaint to the

University spawned an investigation by that entity. The investigation revealed material

or substantial aspects of the allegation to be accurate. Leach ordered that a student

athlete suffering from a brain concussion be made to stand in a “pitch dark” room for

two entire team practices.    Such conduct was deemed mistreatment by those with

authority to discipline the coach. Efforts were made to ameliorate the situation. They

were rebuffed by the coach. Thus, he was suspended. The decision to terminate him

was made after Leach approached the media about the situation. At that point and

after consultation with his athletic director, the University official having sole authority

over the discipline of Leach considered the University’s relationship with him

irreparable.

       The testimony provided by both the president and athletic director explaining

why Leach was fired was clear and direct. And while there may be insinuation that

James’ pressure may have influenced the outcome, it is just that . . . insinuation. The

latter or conjecture or surmise is not the stuff upon which reasonable inference may be

founded. See Thompson & Knight LLP v. Patriot Exploration, LLC, No. 05-13-00104-

CV, 2014 WL 4072120, 2014 Tex. App. LEXIS 9164, at *31 (Tex. App.—Dallas August


                                             8
19, 2014, no pet).        Leach cites us to no evidence from which a rational juror can

reasonably deduce that the University’s president and athletic director actually

succumbed to pressure exerted by James or others on his behalf. Nor does he attempt

to illustrate that a rational juror could infer that calling a concussed player a “fucking

pussy ass” and requiring that athlete to stand for long periods of time in a darkened

room since he was “a distraction” who “defied team rules” was insufficient basis to

warrant discipline or termination. 7

         As in Bennett and Moriarty, an independent investigation coupled with University

action responding thereto intervened to attenuate the causal link between the conduct

deemed tortious interference and the employee’s dismissal, as a matter of law. The

trial court did not err in granting James and Spaeth summary judgment on the issue of

causation. And because ESPN also moved for summary judgment on that ground, the

trial court did not err in granting that entity judgment.

         Finally, the purported civil conspiracy urged at bar depended upon proof of a

viable claim for tortious interference with contract. Since the trial court did not err in

rendering judgment on that cause of action, it did not err when denying the conspiracy

claim.

         We affirm the summary judgment of the trial court denying Leach recovery

against James, ESPN, and Spaeth.



                                                                 Brian Quinn
                                                                 Chief Justice

         7
          We note that Leach also posited below that the decision to terminate him arose from animosities
linked to prior contractual negotiations between him and the University. Yet, the evidence allegedly
supporting that contention would be of no help to him. If believed, it only suggests that motives unrelated
to the James’ efforts caused his discharge, and it was James’ efforts to have him fired that underlie his
causes of action here.

                                                    9
