




Opinion filed July 17, 2008











 








 




Opinion filed July 17,
2008
 
 
 
 
 
 
                                                                        In The
                                                                              
    Eleventh
Court of Appeals
                                                                 ____________
 
                                                          No. 11-06-00195-CV 
                                                    __________
 
                                        JULIE CROUCH, Appellant
 
                                                             V.
 
                      ANDREA
TRINQUE AND KOY FLOYD, Appellees
 

 
                                         On
Appeal from the 266th District Court
 
                                                           Erath
County, Texas
 
                                                 Trial
Court Cause No. CV26574
 

 
                                                                   O
P I N I O N
 




Julie
Crouch was employed at Tarleton State University as the annual giving officer. 
After her employment was terminated, Crouch sued her former supervisor, Andrea
Trinque, and Trinque=s
supervisor, Koy Floyd.  Crouch asserted claims of intentional infliction of
emotional distress, defamation, tortious interference, and conspiracy.  The
defendants filed a traditional motion for summary judgment based upon sovereign
immunity,[1] official
immunity, and the lack of any genuine issue of material fact in each of the
causes of action asserted by Crouch.  The trial court granted the defendants= motion without specifying
the grounds therefor and entered judgment that Crouch take nothing on her
claims.  We affirm in part and reverse and remand in part.  
                                                                         Issues
Crouch
presents seven issues for review.  In the first, she contends in a general
manner that the trial court erred in rendering summary judgment against her.[2] 
In the second issue, Crouch complains that the trial court erred in failing to
sustain her objections to the defendants=
summary judgment evidence.  In the third issue, which relates to official
immunity, Crouch contends that summary judgment was improper because an issue
of fact existed as to whether the defendants acted in good faith.  In the
fourth, fifth, sixth, and seventh issues, Crouch argues that summary judgment
was erroneous because issues of fact existed as to her claims for defamation,
tortious interference, intentional infliction of emotional distress, and
conspiracy.  
                                                            Evidentiary
Objections
Crouch
raised several objections to the defendants=
summary judgment evidence and brought these objections to the attention of the trial
court.  In her second issue on appeal, Crouch complains of the trial court=s failure to sustain these
objections.  The defendants assert that Crouch failed to preserve the issue for
appeal because she did not get a ruling on her objections.  Even though the
trial court did not rule on the objections, Crouch preserved the issue by
bringing her objections to the trial court=s
attention and by subsequently objecting to the trial court=s failure or refusal to
rule.  See Tex. R. App. P.
33.1(a).  




Crouch
objected that several portions of the defendants=
affidavits contained inadmissible hearsay, opinion testimony, conclusions,
speculations, and vague statements.  A trial court has discretion when ruling
on the admission or exclusion of summary judgment evidence.  Harris v.
Showcase Chevrolet, 231 S.W.3d 559, 561 (Tex. App.CDallas 2007, no pet.).  After reviewing the
affidavits and the objections, we hold that the trial court did not abuse its
discretion by failing to sustain Crouch=s
objections.  Moreover, Crouch has not shown that the admission of the
particular evidence was harmful.  See Doncaster v. Hernaiz, 161 S.W.3d
594, 601 (Tex. App.CSan
Antonio 2005, no pet.).   The second issue is overruled. 
                                                      Summary
Judgment Standard
A
trial court must grant a motion for summary judgment if the moving party
establishes that no genuine issue of material fact exists and that it is
entitled to judgment as a matter of law.  Tex.
R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470,
471 (Tex. 1991).  In order for a defendant to be entitled to summary judgment,
it must either disprove an element of each cause of action or establish an
affirmative defense as a matter of law.  Am. Tobacco Co. v. Grinnell,
951 S.W.2d 420, 425 (Tex. 1997).  Once the movant establishes a right to
summary judgment, the nonmovant must come forward with evidence or law that
precludes summary judgment.  City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671, 678‑79 (Tex. 1979).  When reviewing a traditional summary
judgment, the appellate court considers all the evidence and takes as true
evidence favorable to the nonmovant.  Am. Tobacco Co., 951 S.W.2d at
425; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548‑49 (Tex.
1985).  The appellate court Amust
consider whether reasonable and fair-minded jurors could differ in their
conclusions in light of all of the evidence presented@ and may not ignore Aundisputed evidence in the record that cannot
be disregarded.@  Goodyear
Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755, 757 (Tex. 2007).  
                                                                Official
Immunity




One
ground upon which the defendants moved for summary judgment was official
immunity.  Common law official immunity is based on the need for public
officials to act in the public interest with confidence and without the
hesitation that could be caused by subjecting them to litigation.  Ballantyne
v. Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex. 2004).  Official
immunity is an affirmative defense that protects government employees in their
individual capacities from liability related to the performance of
discretionary duties if the actions are within the scope of the employee=s authority and are
performed in good faith.  City of Lancaster v. Chambers, 883 S.W.2d 650,
653 (Tex. 1994).  Because official immunity is an affirmative defense, the
defendants had the burden to establish each element as a matter of law.  See
Ballantyne, 144 S.W.3d at 424.  If we determine that the defendants met
this burden, then we must determine whether Crouch came forward with summary
judgment evidence to the contrary.  See Eastland County Coop. Dispatch v.
Poyner, 64 S.W.3d 182, 192 (Tex. App.CEastland
2001, pet. denied).  
Public
officials act within the scope of their authority if they are discharging the
duties generally assigned to them.  Ballantyne, 144 S.W.3d at 424; Chambers,
883 S.W.2d at 658.  A discretionary duty is one that involves personal
deliberation, decision, and judgment.  Ballantyne, 144 S.W.3d at 425. 
The defendants presented summary judgment evidence showing as a matter of law
that they were public officials performing discretionary duties within the
scope of their authority.  Crouch does not dispute that these two elements were
established by the summary judgment proof.  She does, however, argue that the
defendants failed to prove as a matter of law that they acted in good faith and
that the defendants=
motion failed to address immunity with respect to numerous allegations made by
Crouch, including an unnecessary and intimidating police presence at Crouch=s termination, Trinque=s verbal abuse of Crouch,
and an implication that Crouch had misappropriated money from Tarleton.
To
determine whether a public official has acted in good faith, we use an
objective standard, asking whether a reasonably prudent official, under the
same or similar circumstances, could have believed that his conduct was
justified based on the information he possessed when the conduct occurred.  Joe
v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 164 (Tex. 2004); Ballantyne,
144 S.W.3d at 426; Chambers, 883 S.W.2d at 656.  The standard of good
faith with respect to official immunity is not a test of carelessness,
negligence, or motivation and does not inquire into what a reasonable person Awould have done@ but what a reasonable
person Acould have
believed.@  Ballantyne,
144 S.W.3d at 426.  




The
defendants produced summary judgment evidence that included the affidavits of
both defendants and deposition excerpts from all three parties.  According to
Trinque=s affidavit,
she was employed by Tarleton as the Director of Development and was Crouch=s direct supervisor. 
Trinque reported to Floyd, the vice president of Institutional Advancement. 
Trinque=s affidavit
detailed Crouch=s
responsibilities at Tarleton and various incidents indicating that Crouch
failed to perform her job adequately, failed to follow appropriate guidelines
and office policy, acted in a hostile and confrontational manner toward Trinque
and a coworker, and refused to follow instructions.  During one of the
unpleasant conversations between Crouch and Trinque, Crouch stated that the
only way she would be promoted was if Trinque died or Crouch=s coworker left. 
Floyd=s affidavit indicated that
he supervised Trinque=s
department and that he and Trinque discussed issues relating to Crouch=s performance.  Trinque
informed Floyd of an incident during which Crouch had been verbally aggressive
and acted inappropriately.  Trinque also informed Floyd about various
shortcomings in Crouch=s
job performance, including the failure to produce a financial report for the
Greater Tarleton Annual Fund and the failure to adequately monitor that account
such that the expenses exceeded the income by $29,000.  Floyd also indicated
that he had been contacted by three university donors regarding Crouch=s job performance and
employment evaluation.  Crouch had contacted these donors and asked them to
intercede with Floyd on her behalf:  an action that Floyd deemed
inappropriate.  Floyd asked for and received permission to terminate Crouch=s employment.  Based upon
the information he had, Floyd arranged for a police officer to be present when
Crouch was notified of her termination.
The
defendants= summary
judgment evidence established that their actions were taken in good faith. 
Based upon the facts as presented in the defendants= summary judgment evidence, a reasonably
prudent official could have believed his conduct was justified under the
circumstances.  Crouch, however, responded to the defendants= motion for summary
judgment and produced controverting evidence tending to show that no reasonable
person in Trinque=s
position could have thought the facts were such that they justified her acts.  See
Chambers, 883 S.W.2d at 657; see also Vela v. Rocha, 52 S.W.3d 398,
405-07 (Tex. App.CCorpus
Christi 2001, no pet.).  




In
her affidavit, Crouch disputed many of the factual statements made by the defendants. 
According to Crouch, Trinque initiated a campaign to torment Crouch and
ultimately see that Crouch=s
employment was terminated.  Crouch stated that Trinque never gave her the
authority or the discretion to direct the Greater Tarleton Annual Fund, that
Crouch merely carried out Trinque=s
directions with respect to the fund, and that the blame for the shortfall in
the account belonged to Trinque.  According to Crouch, she had no authority to
write checks on the account and took no money from the account; all
expenditures were authorized by Trinque.  Although Crouch agreed that she had
been reprimanded for her use of leave time, she rebutted some of the statements
made about her excessive absences from work.  Crouch gave a different version
of a meeting that she had had with Trinque regarding the leave policy and
stated that Trinque informed her she had to take off because she had too many
hours of Acomp time@ from working tremendous
hours on work-related events.  Crouch also rebutted the facts of another
incident that Trinque deemed inappropriate regarding the interviewing of
student workers.  Another incident that Crouch controverted related to Crouch
having previously been the victim of domestic abuse.  Crouch had told Trinque
about the ordeal of being a victim of domestic abuse.  Trinque, however, turned
the story around and attempted to justify her fear of Crouch with her alleged
knowledge that Crouch had previously assaulted someone and had been arrested
for that crime.  Crouch presented documented proof that she had not been
arrested for a crime involving domestic abuse but had instead been a victim. 
Crouch also disputed Trinque=s
statements about Crouch refusing to follow instructions regarding the award of
an armoire at a charity auction and the general handling of the situation. 
Crouch indicated in her affidavit that the reason she failed to produce the
financial report as asked was that Trinque had not trained her on that aspect
of her job.
Crouch
further stated that she did not behave in a confrontational or angry manner
toward Trinque or any coworker but, rather, that Trinque behaved toward Crouch
in ways that were confrontational, angry, physically assaultive, verbally
abusive, and intimidating.  Crouch reported one incident in which Trinque
called Crouch into Trinque=s
office and asked her to sign a three-page disciplinary document.  When Crouch
refused to sign the document because she did not agree with its content,
Trinque raised her voice and told Crouch she had to sign it.  Trinque refused
to allow Crouch to leave the office, blocking the door and grabbing Crouch=s arm.  Trinque informed
Crouch that her word would be believed over Crouch=s.  Trinque ultimately tore up the
disciplinary report and said something like, ALet=s pretend this never
happened.@  After four
hours of Aabuse and
intimidation,@ Trinque
allowed Crouch to leave the room.




Viewing
all of the summary judgment evidence, we hold that reasonable jurors could
differ in their conclusions with respect to Trinque=s good faith.  In light of Crouch=s controverting evidence,
we cannot determine as a matter of law that a reasonable person in Trinque=s position could have
believed her conduct was justified.   Thus, an issue of fact existed as to
whether Trinque was entitled to official immunity.  The summary judgment
evidence with respect to Floyd, however, established that a reasonable person
in Floyd=s position
could have believed that his conduct was justified.  Thus, Floyd established
the affirmative defense of official immunity as a matter of law, and summary
judgment in Floyd=s
favor was proper.  However, if summary judgment was granted to Trinque on the
basis of official immunity, it was erroneous.  The third issue is sustained as
to Trinque.  
                                                           Claims
Against Trinque
Next,
we must address whether Trinque was entitled to summary judgment on the
particular claims asserted against her. 
1.
Defamation.
In
her fourth issue, Crouch asserts that summary judgment was improper because a
fact issue existed regarding her claim for defamation.  To be entitled to
summary judgment on the defamation claim, Trinque must have either established
a defense or disproved one of the following elements:  (1) that Trinque
published a statement, (2) that the statement was defamatory concerning Crouch,
or (3) that Trinque acted with negligence regarding the truth of the
statement.  See WFAA-TV, Inc. v.  McLemore, 978 S.W.2d 568, 571
(Tex. 1998).  In her petition, Crouch alleged that she was defamed by false
accusations and statements publicized by Trinque.  Trinque asserted the defense
of privilege. 
An
employer has a conditional or qualified privilege that attaches to communications
made in the course of an investigation following a report of employee
wrongdoing.  Randall=s
Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex. 1995).  The
privilege remains intact as long as communications pass only to persons having
an interest or duty in the matter to which the communications relate.  Id. 
However, the privilege is defeated if the statement was motivated by actual
malice existing at the time of publication.  Id.  In the defamation
context, a statement is made with actual malice if the statement is made with
knowledge of its falsity or with reckless disregard as to its truth.  Id. 
To invoke the privilege on summary judgment, an employer must conclusively
establish that the allegedly defamatory statement was made with an absence of
malice.  Id.  




We
hold that Trinque failed to conclusively establish an absence of malice.  The
summary judgment evidence was controverted as discussed above, resulting in an
issue of fact as to whether Trinque made statements knowing of their falsity or
with reckless disregard as to their truth.  Because Trinque did not as a matter
of law establish a qualified privilege or defense or disprove an element of
defamation, she was not entitled to summary judgment on the cause of action for
defamation.  The fourth issue is sustained as to Trinque.  
2.
Tortious Interference.
In
her fifth issue, Crouch asserts that summary judgment was improper because
issues of fact existed on her claim for tortious interference with an
employment relationship.  Trinque moved for summary judgment on the tortious
interference claim on two grounds.  First, she asserted that Crouch could not
recover for tortious interference because Crouch was an at-will employee
without an employment contract.  However, the lack of an employment contract
does not circumscribe the availability of a claim for tortious interference. 
Under Texas law, an at-will employee may recover for tortious interference with
a contract of employment terminable at will.  Sterner v. Marathon Oil Co.,
767 S.W.2d 686, 688-89 (Tex. 1989).  Second, Trinque asserted the affirmative
defense of justification, citing Texas Beef Cattle Co. v. Green, 921
S.W.2d 203, 211 (Tex. 1996).  Justification is an affirmative defense and,
therefore, must be pleaded.  See Tex.
R. Civ. P. 94; Sterner, 767 S.W.2d at 690.  Although
justification was asserted as a defense in the motion for summary judgment, it
was not included in the defendants=
pleadings.  In her response to the motion for summary judgment, Crouch pointed
out that justification is an affirmative defense that must be pleaded and that
the defendants had failed to plead justification.  The defendants did not amend
their pleadings to include justification.  Consequently, we must agree with
Crouch that Trinque cannot rely on justification as a basis to uphold the
summary judgment as to tortious interference.  The fifth issue is sustained as
to Trinque.
3.
Intentional Infliction of Emotional Distress.




In
the sixth issue, Crouch contends that summary judgment was erroneous on her
claim for intentional infliction of emotional distress because an issue of fact
existed as to whether the defendants=
conduct was extreme and outrageous.  To recover for intentional infliction of
emotional distress, a plaintiff must prove (1) the defendant acted
intentionally or recklessly,  (2) the conduct was extreme and outrageous,  (3)
the actions of the defendant caused the plaintiff emotional distress,  and (4)
the resulting emotional distress was severe.  GTE Sw., Inc. v. Bruce,
998 S.W.2d 605, 611 (Tex. 1999).  To be extreme and outrageous, conduct must be
Aso outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community.@ 
Id.  Generally, insensitive behavior, rude behavior, mere insults,
indignities, threats, annoyances, and petty oppressions do not rise to the
level of extreme and outrageous conduct.  Id. at 612.  Texas has taken a
particularly strict view on claims for intentional infliction of emotional
distress in the employment setting, requiring that an employee prove the
existence of some conduct that brings the dispute outside the scope of an
ordinary employment dispute and into the realm of extreme and outrageous
conduct.  Id. at 612-13. 
The
summary judgment evidence in this case, even when viewed in Crouch=s favor, does not rise to
the level of extreme and outrageous conduct required to prove intentional
infliction of emotional distress in an employment setting.  Consequently,
Crouch=s sixth issue
is overruled.  
4.
Conspiracy. 
In
her final issue, Crouch contends that the trial court erred in entering summary
judgment  on her claim for conspiracy.  The elements of a civil conspiracy claim
are (1) two or more persons, (2) an object to be accomplished, (3) a meeting of
the minds on the object or course of action, (4) one or more unlawful,
overt acts, and (5) damages as the proximate result.  Massey v. Armco Steel
Co., 652 S.W.2d 932, 934 (Tex. 1983).  
Trinque
and Floyd moved for summary judgment on the conspiracy claim on the basis that
Tarleton and its employees constitute a single entity, which cannot conspire
with itself.  See Hillard v. Ferguson, 30 F.3d 649 (5th Cir. 1994); Wilhite
v. H.E. Butt Co., 812 S.W.2d 1, 5 (Tex.  App.CCorpus
Christi 1991, no writ), overruled on other grounds by Cain v. Hearst Corp.,
878 S.W.2d 577, 578-79 (Tex. 1994).  Crouch argues that the general rule that a
corporation cannot conspire with itself through its agents does not apply here
because she has not sued Tarleton and has not alleged that Trinque and Floyd
entered into a conspiracy with Tarleton but, rather, have conspired between
themselves.  We disagree.  Employees or agents of a principal acting within the
course and scope of their employment or agency relationship cannot enter into a
conspiracy with each other so long as they are not acting outside their
capacity as an employee or agent or are not acting for a personal purpose of
their own;  the acts of the employees or agents are acts of the principal, and
the general rule applies.  See Tex.-Ohio Gas, Inc. v. Mecom, 28 S.W.3d
129, 138 (Tex. App.C
Texarkana 2000, no pet.); Atl. Richfield Co. v. Misty Prods., Inc., 820
S.W.2d 414, 421 (Tex. App.CHouston
[14th Dist.] 1991, writ denied). 




When
does an agent act outside his capacity as an employee or agent or act for a
personal purpose of his own?
Fojtik
v. First National Bank of Beeville, 752 S.W.2d 669 (Tex. App.CCorpus Christi 1988), writ
denied, 775 S.W.2d 632 (Tex. 1989), is an example of a situation where the
employee or agent acted outside of his capacity as an agent.  Fojtik was
engaged in the farming and ranching business.  He also operated an auction and
equipment business.  Jack Chesnut was a competitor.  Chesnut also sat on the
board of directors of a bank that had entered into various loan arrangements
with Fojtik.  Bevans Welder was the president of that bank and was also on its
board of directors.  Claiming that the bank was changing the terms of the
arrangement it had made with him, Fojtik sued the bank, Chesnut, and Welder
upon various legal theories including conspiracy.  Fojtik alleged that they had
conspired to put him out of business so that he would be eliminated as one of
Chesnut=s main
competitors.  The trial court directed a verdict in favor of the defendants on
the conspiracy claim.  On appeal, the court noted the general rule that a
corporation cannot conspire with itself.  Fojtik, 752 S.W.2d at 673.  It
also noted the rationale for the rule:  the acts of a corporation=s agent are deemed to be
the acts of the corporation.  Id.  However, the court found that the
general rule was inapplicable to the facts of that case.  Chesnut was both on
the board of the bank and the owner of a business that was in direct
competition with Fojtik.  AHence
it is conceivable that Chesnut, if he had in fact conspired with the bank, did
so in his capacity not as a corporate agent but as an independent equipment
dealer.@  Id.
Here,
even assuming that Trinque acted in a mean, vicious, and vindictive manner, all
of the acts that appear in the summary judgment proof show that she was acting
within her capacity as an employee of Tarleton.  The summary judgment evidence
does not show that she was off on some personal purpose outside the scope of
her duties as was the case in Fojtik.  Although Trinque might have
chosen a more appropriate, less vindictive way to perform those duties, she was
acting, however offensively, within her capacity as an employee of Tarleton. 
The trial court did not err in granting summary judgment on Crouch=s conspiracy claim.  The
seventh issue is overruled.  
                                                               This
Court=s Ruling




The
trial court=s
take-nothing summary judgment is affirmed in part and reversed and remanded in
part.  We affirm as to all causes of action asserted against defendant Koy
Floyd and also as to the causes of action for intentional infliction of
emotional distress and conspiracy asserted against defendant Andrea Trinque.  We
reverse the summary judgment as to the causes of action asserted against
Trinque for defamation and tortious interference, and those causes of action
are remanded for further proceedings in the trial court.  
 
 
JIM R. WRIGHT
CHIEF JUSTICE
 
July 17, 2008
Panel consists of: Wright, C.J.,
McCall, J., and
Strange, J.




[1]We note that sovereign immunity is not addressed in the
parties= briefs and is not an issue in this appeal.  In their
motion for summary judgment, the defendants asserted sovereign immunity to the
extent that they were being sued in their official capacities. Crouch responded
that she was suing the defendants in their individual capacities only, not
their official capacities.


[2]Crouch=s substantive
arguments are addressed in the third, fourth, fifth, sixth, and seventh
issues.  To the extent that these issues are overruled, the first issue is also
overruled.  To the extent that they are sustained, the first issue is also
sustained.


