      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                               ON MOTION FOR REHEARING


                                       NO. 03-05-00426-CV



                                    Terry L. Dunn, Appellant

                                                  v.

                                    M. Ann Calahan, Appellee



      FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
           NO. 199,002-B, HONORABLE RICK MORRIS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Upon consideration of appellant Terry L. Dunn’s motion for rehearing, we overrule

the motion; however, we withdraw our opinion and judgment dated August 28, 2007, and substitute

the following in its place. Dunn appeals from the summary judgment rendered against him in his

suit for tortious interference with contract and intentional infliction of emotional distress. In five

issues on appeal, Dunn claims that the trial court erred in granting summary judgment for appellee

M. Ann Calahan because a genuine issue of material fact existed in his tortious interference cause

of action and in all of Calahan’s affirmative defenses. Because we hold that Calahan conclusively

negated at least one element of Dunn’s cause of action, we affirm the trial court’s summary

judgment.
                                           Background

                Dunn was a student at the Killeen campus of Tarleton State University (“Tarleton”)

working toward a degree in elementary education. In April 2000, on his way to a student teaching

assignment at an elementary school, Dunn stopped at a men’s bathroom facility in a public park in

Killeen.1 A man followed him into the restroom, the two had sex, and they were subsequently

arrested and charged with public lewdness. Dunn pleaded no contest to the offense and was placed

on deferred adjudication in August 2000.

                On discovery of the arrest, Tarleton’s administration placed Dunn on probation

pending the outcome of the criminal charges. One of Calahan’s official duties as the head of the

Curriculum and Instruction Department and member of the Teacher Education Council at Tarleton

was to assist in making the final decision as to whether a person was to be admitted or retained in

the teacher education department.2 Pursuant to standard procedures, Calahan recommended that

Dunn be removed from public school classrooms after his arrest.




   1
     According to a newspaper article made part of the summary judgment record, the restroom in
the park was under surveillance because of numerous complaints about drug use and lewdness
around children. Calahan’s reference to this article forms the basis of Dunn’s complaint against her.
   2
       During her deposition, Calahan was asked the following:

         Q.     Are you involved in the selection process of which particular students are
                admitted into the education program?

         A.     I serve on the Admissions Committee, yes, and I also serve on the Teacher
                Education Council as a representative of the department who makes the final
                decision as to whether or not that person is admitted into the Tarleton
                Teacher Education Program.

                                                 2
               In a series of letters from September to November 2000, the Dean of Education,

Joe Gillespie, agreed that Tarleton would provide a “deficiency plan” by which Dunn could obtain

his teacher certification if he secured employment with a school district or private school as long as

two requirements were met: (1) Dunn must make “full disclosure” about his arrest to his prospective

employer, and (2) the employer must confirm in writing to Tarleton that Dunn had “fully disclosed”

his arrest.

               In mid-July 2001, Dunn applied for a fourth grade teaching position in the

Temple Independent School District (“TISD”). He was interviewed by Gail Leidy, an elementary

school principal in the TISD. TISD expressed interest in hiring him. Thereafter, Dunn provided

Susan Brown, TISD’s director of human resources, a disk containing a letter that he had written

requesting a deficiency plan from Tarleton’s Dean of Education. Although Dunn authored the letter,

he asked Brown to sign it and send it to Tarleton. The letter, which was addressed to Gillespie,

requested a deficiency plan and stated that Dunn was to teach math to fourth graders at Raye-Allen

Elementary School. However, Brown stated that she was not comfortable with the second sentence

of the letter, which stated, “Mr. Dunn has been totally forthcoming about his arrest record and

has provided all documentation related to his arrest.” Brown further stated that she did not feel that

Dunn “had been totally forthcoming about his arrest records and provided all documentation related

to his arrest.” She testified that she understood the term “full disclosure” to mean “what he was

arrested for, what he was charged for, the nature of the arrest, everything that was involved,” and

that she did not feel that Dunn had provided full disclosure of his arrest. Although Dunn had




                                                  3
disclosed the fact of his arrest to Leidy, he simply said that it was for “public lewdness” without

further explanation.3

               Because the letter that Dunn had prepared for her signature “raise[d] flags” of

concern, Brown placed a reference-check call to the Copperas Cove School District Human

Resources Director, who informed her about a newspaper article related to Dunn’s arrest. Brown

had her assistant find this article from the Web site of the Killeen newspaper and print a copy of it.

               After obtaining a copy of the article, Brown initiated contact with Tarleton

administrators for the purpose of making further reference checks. When she was unable to contact

Gillespie, who was on vacation, Brown was referred to Calahan. Calahan recalled Brown asking,

“How do I know that what [Dunn] told me is what really happened? . . . How do I know if it was

full disclosure?” In response, Calahan referred to the existence of a newspaper article discussing

the arrest—the same article that Brown already possessed as a result of her conversation with

the human resources director in Copperas Cove. Calahan testified that she told Brown about the

newspaper article so that TISD would have the information and not be “blindsided” if a parent were

to inquire about whether TISD knew that Dunn’s arrest had been reported in the newspaper. Calahan

denied having read the article and denied using the word “solicitation” during her conversation

with Brown.

               TISD also conducted a routine criminal background check on Dunn, which showed

that he had received deferred adjudication for public lewdness. Dunn, however, had answered “No”


   3
     Similarly, Leidy testified that she had assumed that Dunn meant he had been caught doing
something like urinating on the side of a building, or perhaps “gyrating” in public where people
could see.

                                                  4
to a question on his application that asked if he had “ever been convicted of a felony or offenses

involving moral turpitude and/or received probation or deferred adjudication.” Although Dunn had

already been assigned a classroom and placed in paid training, TISD ultimately declined to allow him

to teach. Dunn then sued Calahan for tortious interference with contract and intentional infliction

of emotional distress.4


                                            Discussion

               We review the district court’s summary judgment de novo. Valence Operating Co.

v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott,

128 S.W.3d 211, 215 (Tex. 2003). Summary judgment is proper when there are no disputed issues

of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c);

Shell Oil Co. v. Khan, 138 S.W.3d 288, 291 n.4 (Tex. 2004) (citing Knott, 128 S.W.3d at 215-16).

We view the evidence in favor of the nonmovant and indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-

49 (Tex. 1985); Dupont Photomasks, Inc. v. Strayhorn, 219 S.W.3d 414, 418 (Tex. App.—Austin

2006, pet. denied).

               A defendant seeking summary judgment must negate as a matter of law at least

one element of each of the plaintiff’s theories of recovery or plead and prove as a matter of law

each element of an affirmative defense. Missouri Pac. R.R. v. Lely Dev. Corp., 86 S.W.3d 787, 790




  4
    Dunn also sued TISD for sex discrimination and breach of contract. TISD filed a counter-claim
alleging that Dunn’s suit was groundless and was brought in bad faith and for the purpose of
harassment. TISD and Dunn entered an agreement to dismiss their claims against each other.

                                                 5
(Tex. App.—Austin 2002, pet. dism’d) (citing Centeq Realty v. Siegler, 899 S.W.2d 195, 197

(Tex. 1995)). If the defendant establishes his right to summary judgment, the plaintiff must then

raise a fact issue. Id. When the summary judgment does not specify the grounds on which it was

granted, the nonmovant must show that each ground alleged in the motion is insufficient to support

it. Goss v. Bobby D. Assocs., 94 S.W.3d 65, 68 (Tex. App.—Tyler 2002, no pet.). We must affirm

the summary judgment if any of the grounds asserted in the motion are meritorious. Texas Workers’

Comp. Comm’n v. Patient Advocates of Texas, 136 S.W.3d 643, 648 (Tex. 2004).

               The theory of tortious interference with business relations by a third person

includes two causes of action: (1) tortious interference with existing contracts, and (2) tortious

interference with prospective contractual relations. Sterner v. Marathon Oil Co., 767 S.W.2d 686,

689 (Tex. 1989); see generally, 13 William V. Dorsaneo III & Cecil C. Kuhne III, Texas Litigation

Guide § 205.01[1] (2007). The plaintiff has the burden of proving the essential elements of

tortious interference with a contract. These elements are: (1) the existence of a contract subject to

interference; (2) a willful and intentional act of interference; (3) the act was the proximate cause

of plaintiff’s damages; and (4) actual damage or loss. John Paul Mitchell Sys. v. Randalls Food

Markets, Inc., 17 S.W.3d 721, 730 (Tex. App.—Austin 2000) (citing Texas Beef Cattle Co. v. Green,

921 S.W.2d 203, 210 (Tex. 1996)). The elements of tortious interference with a prospective

contract are: (1) there must be a “reasonable probability” that the plaintiff would have entered into

the prospective relationship or contract; (2) an “independently tortious or wrongful” act by the

defendant that prevented the relationship from occurring; (3) the defendant did such act with a

conscious desire to prevent the relationship from occurring, or knew that the interference was certain



                                                  6
or substantially certain to occur as a result of the defendant’s conduct; and (4) the plaintiff suffered

actual harm or damage as a result of the defendant’s interference. Johnson v. Baylor Univ.,

188 S.W.3d 296, 304 (Tex. App.—Waco 2006, pet denied).

               In his first issue, Dunn contends that the trial court erred in granting summary

judgment against him on his tortious interference with contract claim.5 Dunn’s pleadings allege only

interference with an existing contract. In his pleadings he states that he:


       was notified by the Human Resources office of Defendant TISD that Susan C. Brown
       was authorizing Gail Liedy to hire Plaintiff as a teacher for academic year 2001-2002.
       Plaintiff signed a letter of commitment with Defendant TISD and in reliance upon
       the agreement that Plaintiff was hired, he gave notice and left his existing
       employment effective July 29, 2001.”


(Emphasis added.) He also alleges that “Calahan was aware that he had been employed by TISD.”

(Emphasis added.) Because we hold that Calahan conclusively negated the elements of intentional

interference and causation, we will begin by assuming that a contract existed and analyze the tort of

interference with an existing contract. See Lely Dev. Corp., 86 S.W.3d at 787.

               Recovery under tortious interference with contract requires that the alleged interfering

party must be shown to have acted willfully and intentionally. COC Servs., Ltd. v. CompUSA, Inc.,

150 S.W.3d 654, 670 (Tex. App.—Dallas 2004, pet. denied). A willful act involves more than


   5
     Dunn also contended that he had a contract with Tarleton concerning the deficiency plan with
which Calahan interfered. Because interference with the Tarleton contract could occur only if
Calahan’s actions caused TISD to refuse to employ Dunn, thus preventing the implementation of the
deficiency plan, we discuss the claimed interference with the TISD contract first. At various times,
Dunn refers to interference with business relationships, contract, and employment. However, the
only relationships subject to interference are the contracts with TISD and with Tarleton. Appellee
consistently refers to interference with contract, as will we.

                                                   7
simple participation in some act with a breaching party. See John Paul Mitchell Sys., 17 S.W.3d

at 730. The defendant must knowingly induce one of the contracting parties to breach its obligations.

Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 (Tex. 1993); John Paul Mitchell Sys.,

17 S.W.3d at 730 (citing Davis v. HydPro, Inc., 832 S.W.2d 137, 139 (Tex. App.—Eastland 1992,

writ denied). There must be some act interfering with a contract or act persuading a party to a

contract to breach; for example, offering better terms or other incentives. Davis , 839 S.W.2d at 139.

Liability for intentional interference may not be based on a simple finding that the defendant

performed certain acts; there must be a finding that the defendant performed certain acts with

the knowledge or belief that interference with a contract would result from that contract. See

Southwestern Bell Tel. Co. v. John Carlo Tex., Inc., 843 S.W.2d 470, 472 (Tex. 1992).

               The act at issue in this case is the telephone conversation between Brown and Calahan

during which Calahan mentioned the newspaper article. Dunn alleges in his petition that Calahan

“made it clear that she believed that hiring or retaining Plaintiff as a TISD teacher would embarrass

both TISD and Tarleton.” For evidentiary support, he refers to Brown’s deposition. In Brown’s

deposition, she said that Calahan referred to the newspaper article as giving the arrest date. She

stated that Calahan did not read her the article or provide her a copy. In fact, Brown testified that

she already possessed a copy of the article at the time she and Calahan spoke on the phone. This is

the entirety of the evidence on which Dunn relies to support his assertion that Calahan advised TISD

that hiring Dunn would create problems; he refers to no other evidence that Calahan expressed

any opinion to Brown, the only TISD administrator with whom she had contact, concerning




                                                  8
Dunn’s employment with TISD, and our review of the record finds no other evidence.6 In Calahan’s

deposition, she said that she responded to Brown’s question about Dunn because she thought that

Brown should have the information to “avoid being blindsided” by a parent who might have seen

the article. Calahan herself had not read the contents of the article at that time. She had no previous

relationship with Brown. The record does not show any further contact with Brown or any other

TISD administrator to whom she could have communicated a negative recommendation about Dunn.

               Based on the evidence in the record, no reasonable fact finder could have

concluded that Calahan performed an act intended to knowingly induce TISD to breach its contract

with Dunn, see John Paul Mitchell Sys., 17 S.W.3d at 730, or that the conversation with Brown

was done with the knowledge or belief that it would interfere with the Brown’s TISD contract,

see Southwestern Bell, 843 S.W.2d at 472. Accordingly, Calahan conclusively negated the element

of tortious interference that requires a willful and intentional act. See John Paul Mitchell Sys.,

17 S.W.3d at 730. It then became Dunn’s burden to raise a fact issue. See Lely Dev. Corp.,

86 S.W.3d at 790. Dunn produced no countervailing evidence that Calahan offered TISD some

inducement to breach its contract with Dunn or that her reference to a newspaper article that

TISD already had served as a “negative inducement” for TISD to breach the contract. Calahan




   6
      Dunn asserts that Calahan was motivated to interfere with his contract because she personally
did not think that Dunn should teach. At a deposition, when asked whether in her professional
opinion Dunn should be a teacher, she said that he should not. However, at the time of the phone
call, Calahan did not know all of the details about the arrest nor did she express an opinion to Brown
concerning Dunn’s employment. By the time of the deposition, Calahan learned more details and
formed this professional opinion. At one point, Dunn even admitted that Calahan was not acting
maliciously but in the best interests of Tarleton and the teacher education program.

                                                  9
demonstrated her entitlement to summary judgment, and Dunn failed to meet his burden to raise a

fact issue. See id.

                Calahan also conclusively negated the element of causation. Causation in a tortious

interference case is “but for” causation; the test in whether the act was a substantial factor in causing

the injury “without which the harm would not have occurred.” See COC Servs., 150 S.W.3d at 679.

The factors given by TISD as the cause of the decision not to allow Dunn to teach were that he

did not “fully disclose” his arrest to TISD and that he lied on his application when he said “No”

in response to the question concerning deferred adjudication.7 Dunn’s pleadings allege that

Calahan’s interference caused the loss of his job and the associated lost wages and benefits. Dunn’s

brief addresses the element of causation in a single sentence: “But for Calahan’s interference,

Dunn would have retained his position with TISD and Calahan’s actions caused TISD [sic] actions.

Victoria Bank & Trust v. Brady, 811 S.W.2d 931, 939 (Tex. 1991).” In his discussion of this

element, Dunn provides no specific record references that would show any causative factors for his

injury other than those enunciated by TISD, nor do we find such evidence in the record. Based on

this record, no reasonable factfinder could conclude that Calahan’s actions were a substantial factor

in causing damages to Dunn. Because Calahan conclusively negated the causation element of

tortious interference, see COC Servs., Ltd., 150 S.W.3d at 679, the burden shifted to Dunn to raise




    7
      We note that Dunn argues that he raised material fact issues concerning the scope of “full
disclosure” of his arrest, i.e., whether he had to disclose more information than merely the offense
for which he was arrested, and that the question concerning deferred adjudication could be
interpreted as referring only to deferred adjudication for felonies and offense involving moral
turpitude. However, the basis of his claim against Calahan is the one phone conversation and
reference to the newspaper article, neither of which are affected by these arguments.

                                                   10
a fact issue, see Lely Dev. Corp., 86 S.W.3d at 790. He did not do so. Accordingly, Calahan was

entitled to summary judgment against Dunn because she negated the existence of at least one element

of plaintiff’s cause of action. See id.

               We have accepted Dunn’s characterization of the contract as existing.8 Even if

we were to consider Dunn’s cause of action as that for interference with prospective business

relations, Calahan would still prevail by negating the elements that the defendant’s conduct

was independently tortious or wrongful and that the plaintiff’s damage was the result of defendant’s

act. Johnson, 188 S.W.3d at 304. An “independently tortious act” does not mean that plaintiff

must be able to prove an independent tort; the plaintiff must prove that defendant’s conduct would

be actionable under a recognized tort. Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 726

(Tex. 2001). Calahan and Brown produced evidence that their phone call simply involved a response

by Calahan to Brown’s question about how to verify the details of Dunn’s offense; Calahan

mentioned to Brown a newspaper article about which Brown already knew. There is no actionable

tort present or assertion made that the conversation was defamatory or fraudulent.9 A reasonable

factfinder could not conclude that Calahan committed a tortious act in her phone call. The causation

element also fails for the same reasons as previously discussed. There was no evidence that



  8
    In other words, contrary to Dunn’s position, a fact issue about whether the contract was existing
or prospective may exist. Summary judgment is nevertheless proper because of the negation of
other elements.
  9
    Dunn asserts that the “full disclosure” required by his “contract” for the deficiency plan did not
specify that he had to disclose this newspaper article. He seems to have interpreted the absence of
specific language about the newspaper article as a prohibition against Calahan disclosing its
existence. However, nowhere in the correspondence between Dunn and Tarleton concerning the
deficiency plan is there any discussion of non-disclosure of any information.

                                                 11
Calahan’s acts caused damage to Dunn and no evidence that the cause of TISD’s non-retention of

Dunn was based on any reasons other than those stated by the district, which were not related to the

conversation between Brown and Calahan.

               Dunn also claimed that Calahan interfered with his contract with Tarleton by

preventing the deficiency plan from being implemented. However, the implementation of the

deficiency plan depended on Dunn’s securing employment. We have held that Calahan’s actions

did not interference with Dunn’s contract; TISD’s decision was not based on Calahan’s actions.

Accordingly, Calahan did not cause the termination of the deficiency plan by preventing

his employment.


                                            Conclusion

               We hold that Calahan has conclusively negated one or more elements of Dunn’s cause

of action for tortious interference and, thus, was entitled to summary judgment. See Lely Dev. Co.,

86 S.W.3d at 790. Accordingly, we overrule Dunn’s first issue. Because we have held that Calahan

was entitled to summary judgment as a defendant who conclusively negated one or more elements

of the plaintiff’s claim, we will not address Dunn’s issues concerning Calahan’s affirmative defenses

because they are not necessary to resolve this case. See Tex. R. App. P. 47.1 (opinion to be as brief




                                                 12
as practicable while addressing all issues necessary to disposition of claim).10 We affirm the trial

court’s summary judgment.




                                              W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Affirmed on Motion for Rehearing

Filed: December 17, 2008




     10
          Calahan also moved for summary judgment on Dunn’s claim of intentional infliction
of emotional distress. Dunn brings no issue or argument on appeal concerning the summary
judgment against him on that claim and so waived appeal of that claim. See Tex. R. App. P. 38.1(e).
Further, Calahan’s action in disclosing the newspaper article does not rise to the level of “extreme
and outrageous” conduct that this tort requires. See Twyman v. Tywman, 855 S.W.2d 619,
621 (Tex. 1993). Extreme and outrageous conduct is conduct so 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. (citing Restatement (Second) of Torts § 46,
cmt. d.).

                                                13
