                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-11-00175-CV


LYNDA W. TOMLINSON AND                                       APPELLANTS
HUSBAND DAVID TOMLINSON

                                     V.

JOHN MCCOMAS, CYNTHIA                                          APPELLEES
―CISSY‖ WILSON, MARVIN
JENSEN, TOM ROMAN, AND MIKE
ROBINIUS


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         FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                       MEMORANDUM OPINION1
                                  ----------

                              I. INTRODUCTION

     This is a summary judgment appeal. Appellants Lynda W. Tomlinson and

her husband David Tomlinson filed suit against Appellees John McComas,

Cynthia ―Cissy‖ Wilson, Marvin Jensen, Tom Roman, and Mike Robinius seeking

     1
      See Tex. R. App. P. 47.4.
damages from allegedly defamatory statements made at a homeowners’

association meeting. The trial court granted summary judgment for Appellees

and denied the Tomlinsons’ motion for partial summary judgment. In a single

issue on appeal, the Tomlinsons argue that the trial court erred by granting

summary judgment for Appellees and by denying the Tomlinsons’ motion for

partial summary judgment. We will affirm.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      Pecan Plantation Owners’ Association (PPOA) is a homeowners’

association comprised of members owning approximately 2,800 homes in the

Pecan Plantation subdivision located near Granbury, Texas.         In 2008, a

development group, referred to by the parties to this appeal as the Anthony

Group, sued PPOA over the collection of road impact fees. In February 2009,

PPOA’s board of directors met to discuss a proposed settlement of the Anthony

Group’s lawsuit.   At the time of that meeting, Bob Lowrey, Jr. served as

president; Lynda Tomlinson served as treasurer; and McComas and Wilson

served as directors on the board. A motion was made to approve the settlement,

Lynda seconded the motion, and the motion passed by a seven-to-two margin.

McComas and Wilson voted against accepting the settlement.

      In March 2009, Lynda was elected president of PPOA, and she and the

directors learned that past-president Lowrey had gone to work for the Anthony

Group on a part-time basis. Concerned that some conflict of interest might have

existed between Lowrey and PPOA at the time PPOA’s board voted to approve


                                       2
the settlement of the Anthony Group lawsuit, PPOA’s directors asked PPOA’s

attorney about the propriety of the settlement agreement and requested guidance

on the proper course of conduct.      PPOA’s attorney responded with a letter,

setting forth several options, including having a discussion with Lowrey, but

noting that there was no ―blue print for conduct in this regard‖ and advising that

PPOA’s board members should ―exercise their independent judgment.‖

      Lynda emailed the letter from PPOA’s attorney to PPOA’s board members.

Her email asked whether the matter with Lowrey had been adequately addressed

and questioned whether further review was needed. Lynda asked PPOA’s board

members to respond and indicated action would be taken in accordance with the

majority of votes. McComas responded to Lynda’s email. McComas expressed

his opinion that the settlement was not fair, that a potential conflict of interest

existed, and that he wanted additional investigation into the matter. Other PPOA

board members responded that they felt that the matter had been adequately

addressed.

      During the fall of 2009, PPOA board members expressed concerns about

Lynda’s leadership of PPOA. Appellees called for a special meeting of PPOA’s

board of directors on October 5, 2009, and the meeting was open to the public.

The special meeting was also recorded for replay on the local community

television station.

      At the special meeting, McComas stated that a group of directors had

asked Lynda to step down as PPOA’s president and made a made a motion that


                                        3
she resign from the presidency but not from the board.              The motion was

seconded. Lynda repeated the motion and called for discussion. One board

member voiced his support for Lynda, even after acknowledging that she had

made mistakes; another board member claimed that he had been excluded from

conversations about requesting Lynda’s resignation. Lynda asked if there was

any further discussion before a vote was called, and McComas said that he had

prepared a statement.         McComas then read his statement out loud.            The

complained-of portions of McComas’s statement, as transcribed by PPOA, are

set forth in italics below:

       The Road Impact Fee lawsuit was negotiated during a part of this
       administration. And her . . . at this time, in the very last days of that
       administration’s term. Within the term of that administration, a key
       negotiator went to work for the Anthony Group. Madam President
       was made aware of the potential conflict of interest. And I
       underlined potential conflict of interest, just potential. And refused to
       allow an investigation into this potential conflict, ignoring requests to
       consider alternate legal advice and ignoring requests to stop the
       Judge[’]s signature that would make the gentleman everything but
       being ????instrickible. [sic] This ill minded[2] rejection of all the
       requests not only cost PPOA serious money, thousands and
       possibly millions of dollars, but it eliminates our ability to limit
       Anthony Groups’ truck weight limits unless they are specifically
       working a on [sic] single family dwelling. So when they are building
       the runway out there, they can drive anything they want to over our
       roads, as long as there is no immediate physical damage. Madam
       President’s actions were in description[:] unethical, unprofessional,
       and in direct conflict of interest of the best interest of our
       membership. The policy in this membership/Association is that it will

       2
        Appellees argue that the phrase used by McComas at the meeting was
―single minded,‖ and this is the phrase the Tomlinsons used in their original
petition. The Tomlinsons changed the phrase to ―ill minded‖ in their amended
petition, and PPOA’s transcription of the meeting uses the term ―ill-minded.‖


                                          4
      be the policy of PPOA to maintain the highest ethical and legal
      standards in conduct of its business. To be scrupulously honest and
      straight forward in all of its dealings, and to avoid situations where
      there might, just might give . . . either the appearance of unethical or
      illegal behavior. We didn’t even investigate it, in fact the way it was
      settled was okay, I want you board members to read the settlement,
      there will be no further discussion, you come back and you tell me
      whether you like this settlement or not, but that’s where it’s going.
      [Emphasis added to show portions complained of.]

      After McComas read his statement and other PPOA board members made

statements, Lynda called for a vote on the motion. No one voted in favor of the

motion, and the meeting was adjourned.            A month later, PPOA’s board

reconvened.    Another motion to remove Lynda as president was made and

seconded; this time, the motion passed by a vote of five to three.

      The Tomlinsons subsequently filed a defamation suit against Appellees

based on the statement that McComas had read at the October 5, 2009 meeting.

The Tomlinsons alleged that McComas was the spokesperson for Appellees, and

that as their spokesperson he published

      the knowingly false statements that Lynda’s ―ill-minded rejection‖ of
      all requests made to her concerning a negotiated settlement of a
      lawsuit by the board of PPOA of which Lynda was only one of nine
      members who voted with six other members to two to accept the
      settlement, ―not only caused PPOA serious money, thousands and
      possibly millions of dollars,‖ but it eliminated the board’s ―ability to
      limit Anthony Groups’ weight limits unless they are specifically
      working a (sic) on single family dwelling‖ and her ―actions were . . .
      unethical . . . and in direct conflict of interest of [. . .] our
      membership.‖

The Tomlinsons contend that the above statements are defamatory because

―they have injured Lynda’s reputation, exposing her to public hatred, contempt



                                          5
and ridicule impeaching her honesty, integrity and reputation.‖ The Tomlinsons

pleaded that the statements were made with actual malice; that Lynda was

damaged by the defamatory statements because ―she has been caused mental

anguish requiring professional treatment‖; and that as a result of the mental

anguish, her husband had suffered loss of consortium.

      Appellees filed a traditional motion for summary judgment, and the

Tomlinsons filed a traditional motion for partial summary judgment.      The trial

court held a hearing on the competing summary judgment motions and signed a

final take-nothing judgment in favor of Appellees. The trial court did not specify

the grounds on which it granted Appellees’ motion for summary judgment. The

Tomlinsons perfected this appeal.

             III. SUMMARY JUDGMENT FOR APPELLEES AND AGAINST
                        THE TOMLINSONS WAS PROPER

      In their sole issue, the Tomlinsons argue that the trial court erred by

granting Appellees’ motion for summary judgment and by denying the

Tomlinsons’ motion for partial summary judgment. The Tomlinsons contend that

two specific statements by McComas are defamatory: his statement that Lynda’s

―ill-minded‖ or ―single-minded‖ rejection of requests for investigation into the

potential conflict of interest between PPOA and former president Lowrey

concerning the settlement agreement had ―cost PPOA serious money, thousands

and possibly millions of dollars‖ and his statement that Lynda’s actions were




                                        6
―unethical[,] . . . and in direct conflict of interest of the best interest of our

membership.‖

       A. Summary Judgment Standard of Review in Defamation Suit

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). A defendant who conclusively negates, as a

matter of law, at least one essential element of a cause of action is entitled to

summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d

494, 508 (Tex. 2010), cert. denied, 131 S. Ct. 1017 (2011); Brewer v. Capital

Cities/ABC, Inc., 986 S.W.2d 636, 643 (Tex. App.––Fort Worth 1999, no pet.);

see Tex. R. Civ. P. 166a(b), (c). Thus, to be entitled to summary judgment, a

defendant in a defamation suit has the negative burden to prove the absence of

one of the essential elements of defamation, e.g., that the statement complained

of was not defamatory. Ramos v. Henry C. Beck Co., 711 S.W.2d 331, 333–34

(Tex. App.—Dallas 1986, no writ).

                B. The General Law Concerning Defamation

      ―Defamation‖ is generally defined as the invasion of a person’s interest in

his or her reputation and good name. Prosser & Keeton on Torts § 111, at 771

(5th ed. 1984 & Supp. 1988). ―Defamation‖ encompasses both libel and slander.

By statute, Texas law defines ―libel‖ as a defamation expressed in written or

other graphic form that tends to injure a living person’s reputation and thereby

expose the person to public hatred, contempt, ridicule, or financial injury or to

impeach any person’s honesty, integrity, virtue, or reputation or to publish the


                                        7
natural defects of anyone and thereby expose the person to public hatred,

ridicule, or financial injury. Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (West

2011). Although ―slander‖ is not statutorily defined, at common law, slander is a

defamatory statement that is orally communicated or published to a third party

without legal excuse. Randall’s Food Mkts, Inc. v. Johnson, 891 S.W.2d 640,

646 (Tex. 1995).

      To prevail on a defamation cause of action, the plaintiff must prove that the

defendant (1) published a statement, (2) that was defamatory concerning the

plaintiff, (3) while acting with actual malice regarding the truth of the statement

where the plaintiff was a limited purpose public figure. See WFAA-TV, Inc. v.

McLemore, 978 S.W.2d 568, 571 (Tex. 1998), cert. denied, 526 U.S. 1051

(1999); Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219

S.W.3d 563, 574 (Tex. App.—Austin 2007, pet. denied). In this context, actual

malice refers to the defendant’s attitude toward the truth of what he said. WFAA-

TV, Inc., 978 S.W.2d at 573. Actual malice means that the defendant made the

statement knowing that it was false or with reckless disregard about whether the

statement was false or not. HBO v. Harrison, 983 S.W.2d 31, 36 (Tex. App.—

Houston [14th Dist.] 1998, no pet.).

         C. Whether a Statement Is Capable of Defamatory Meaning
                           Is a Question of Law

      Whether a statement is capable of a defamatory meaning is a question of

law. See Fort Worth Star-Telegram v. Street, 61 S.W.3d 704, 708 (Tex. App.—



                                        8
Fort Worth 2001, pet. denied) (citing Musser v. Smith Protective Servs., Inc., 723

S.W.2d 653, 655 (Tex. 1987)).      We must view the statements alleged to be

defamatory as a whole and in light of the surrounding circumstances; the

determination is based upon how a person of ordinary intelligence would

perceive the entire statement. Ezrailson v. Rohrich, 65 S.W.3d 373, 376 (Tex.

App.—Beaumont 2001, no pet.). Statements alleged to be defamatory must be

viewed in their context; they may be false, abusive, unpleasant, or objectionable

to the plaintiff and still not be defamatory in light of the surrounding

circumstances.    Id.   We must consider the entire communication, not mere

isolated sentences or portions. Musser, 723 S.W.2d at 655. Purely subjective

assertions or opinions that do not imply the existence of undisclosed facts and do

not misconstrue the facts are not actionable as defamation. Bentley v. Bunton,

94 S.W.3d 561, 583–84 (Tex. 2002); see also Carr v. Brasher, 776 S.W.2d 567,

570 (Tex. 1989) (explaining that ―[a]ll assertions of opinion are protected by the

first amendment of the United States Constitution and article I, section 8 of the

Texas Constitution‖). This is particularly so when the facts underlying an opinion

are set out in the publication itself, thereby allowing the listener to evaluate the

facts and either accept or reject the opinion.      Brewer, 986 S.W.2d at 643.

Instead, to be actionable as defamation, a statement must be an assertion of

verifiable fact, that is, a statement that purports to be verifiable. Bentley, 94

S.W.3d at 583–84.




                                         9
                D. Application of the Law to the Present Facts

      McComas’s full statement from the October 5, 2009 special meeting is as

follows:3

      Just a couple of words of comment on some of the statements.
      President Tomlinson, for whom I have high regard, was counseled
      and I did . . . from the first, since the early days of her administration,
      and there has not been a moment that this whole, this entire group
      has tried to help her get through this. (I don’t know what is causing
      the feedback.) And we have met and we have discussed at length
      the issues that are on the table here. I would just like you to listen
      with an open mind and understand the moral and ethical dilemma
      that this group finds our selves in. Okay, please? This movement is
      not directed at the employee, if anything it is supportive of, to get
      away from the micro-management and let Mr. Bartholomew run this
      company as he was hired to do. At any rate, today we are not
      gathered to remove a member from the board. Members of the
      Association elect the members of the board members/board of
      directors. Board members then elect, among themselves the Board
      member that they wish to lead them throughout the coming year.
      Each time that it is in the best interest of the Association to replace
      the officers an internal board business is the subject of consideration
      at a special meeting. We are here. The Board members requesting
      this meeting do so with no personal agenda and excludes no group,
      with no exceptions, particularly the PPCMA. This action is not a
      coop, as somehow rumored. We do however need to consider
      today our current leadership and search for answers which will help
      us arrive of what is in the best interest of our association and its
      membership. As legally elected directors of this association, each of
      us took an Oath of Office to defend and fulfill the dictates. And all
      that means is those that are put upon us by the Bylaws. It has come
      to out attention that there have been continued violations of our
      governing documents, that we feel are inappropriate. We have a
      fiduciary duty to both the Association and ourselves to assure the
      Association and its funds are managed in an open manner,

      3
       We note that the statement contains grammatical errors and sentences
that do not make sense; however, we set forth McComas’s statement exactly as
it appears in PPOA’s unofficial transcription of the special meeting that is in the
record before us.


                                          10
according to the governing documents we swore to defend. This
meeting is called only after a great deal of consideration, thought,
angst, back-and-forth, trying to reconcile the differences, trying to
make things work as they should according to the Bylaws. After
numerous unsuccessful attempts to reach an agreement following
the transfer of leadership, allowing the transfer of leadership it then
became a consideration for the Association and membership. The
last effort failed for compromise, because it included Cissy Wilson’s
resignation from the Board. It is this groups feeling this 15 years,
Granbury City Council woman’s views is a huge untapped Board
resource. And she was elected by the membership, in an election
where she garnered the highest vote count. For us to ask her to
resign so that Ms. Tomlinson would step down does not seem just.
My resolve remains strong and anyone adds less to this inescapable
action from this meeting. Under our current leadership we are faced
with an ethical dilemma to uphold the moral, ethical, and fiduciary
responsibility of this community that we are elected to serve or we
compromise our integrity. I will not do that. In my campaign for the
board, I stated I will serve with integrity. Certainly not political
outcome, I am not a politician. Therefore to resolve our ethical
dilemma we asked Mrs. Tomlinson to step down from the board
presidency, for the betterment of our community and allow the Board
to elect a new President. Who I hope will be Board Member, Jim
Miller. Some of the issues that have plagued us, and still haunt us
are:

In working with the budget, the salary ranges and employment
contracts for all PPOA upper Management have not been shared.
Repeated Board requests have been denied. It is unclear what
these salaries are. How can we approve the proposed budget
without this information? Where is the integrity in that?

The Road Impact Fee lawsuit was negotiated during a part of this
administration. And her . . . at this time, in the very last days of that
administration’s term. Within the term of that administration, a key
negotiator went to work for the Anthony Group. Madam President
was made aware of the potential conflict of interest. And I
underlined the potential conflict of interest, just potential. And
refused to allow an investigation into this potential conflict, ignoring
requests to consider alternate legal advice and ignoring requests to
stop the Judges signature that would make the gentleman
everything but being ????instrickible. This ill minded rejection of all
the requests not only cost PPOA serious money, thousands and


                                   11
possibly millions of dollars, but it eliminates our ability to limit
Anthony Groups’ truck weight limits unless they are specifically
working a on single family dwelling. So when they are building the
runway out there, they can drive anything they want to over our
roads, as long as there is no immediate physical damage. Madam
President’s actions were in description; unethical, unprofessional,
and in direct conflict of interest of the best interest of our
membership. The policy in this membership/Association is that it will
be the policy of PPOA to maintain the highest ethical and legal
standards in conduct of its business. To be scrupulously honest and
straight forward in all of its dealings, and to avoid situations where
there might, just might give the either the appearance of unethical or
illegal behavior. We didn’t even investigate it, in fact the way it was
settled was okay, I want you board members to read the settlement,
there will be no further discussion, you come back and you tell me
whether you like this settlement or not, but that’s where it’s going.

On several occasions, Madam President violated the
Communications Policy, with her articles in the Columns potentially
discrediting Pecan members and incurring PPOA legal fees to offset
potential liable lawsuits.    To read the PPOA policy, it says
Communications should strive for impartial treatment of issues and
dispassionate handling of controversial subjects. That was certainly
controversial. It should provide a discussion forum for the exchange
of comment and criticism. Editorials and expressions of personal
opinion should be clearly labeled as such. Concern for community,
business or person interests should not cause the PPOA
communication to distort nor misrepresent the facts.

Let’s go on to the Anthony Group’s development with the Landings.
Director Roman advised the Board that the Anthony Group was
presenting their preliminary development plans to the County
Commissioner’s Court for approval at their regular meeting. The
Board decided and the Board discussed this at length, to send the
LENMO Chair, then, Mr. Frank Andrews. There was concern with
the plans and drainage, and asked the County to exercise due
diligence before approving them. Mrs. Tomlinson interceded that
evening, after the Board, but before the County hearing and based
on the advise of an Anthony Group employee and she touched
again with our legal, our law firm; advised not to do anything but wait
until the development is completed. And if it had problems at that
time, don’t accept it, and begin legal proceedings. Mr. Andrews did
exactly that and sat in the Commissioner’s hearing with an Anthony


                                  12
Group employee, thus giving/denoting PPOA’s approval of these
plans. Subsequently the preliminary plat was accepted by the
County and approved. Later, and again at the urging of Director
Roman, PPOA Board and certain members did become involved
and has stopped the development until appropriate plan is submitted
to the County and approved by them. Mrs. Tomlinson’s action was
in direct violation of the Board consciences and severely jeopardized
PPOA’s ability to insure the development was not harming our
existing member’s homes.

And to prepare for this meeting to defend her position, Ms.
Tomlinson spent PPOA legal fees in violation of the following policy:
Budgets, Contracts, Checks, Deposits and Funds, no Director of the
Board of Directors, Committee Chairperson or Committee member
may spend or commit to spend any budgeted or unbudgeted funds
of the Corporation without the approval of the Board of Directors.
Our General Manager, who must control this budget, was not even
aware that there was interaction between Mrs. Tomlinson and our
new and better, much improved legal team.

Mrs. Tomlinson has and continues to meet with the Anthony Group
on long range planning and other issues in violation of the
extraordinary meetings policy in the LENMO Agreement.
Additionally, the board has agreed that all communications with the
Anthony Group will go through the Lenmo Chair. This has been
ignored by Mrs. Tomlinson. It was agreed to provide continuity to
communications, one voice, the Board being communicated through
the Lenmo Chair, not being restrictive, but to have continuity. The
PPOA Policy reads that the President and one other Director who
will have been selected by the BOD in an Open Meeting and the
General manager will handle all extraordinary meetings such as
those with the Developer or any other outside entities concerning
PPOA business. This is flat policy violation.

The current interviews with PPOA Audit firm . . . Every year we
choose to continue or find a new audit firm. During this year’s
interviews with the auditing firms, it was discovered by the audit
committee that we lost $159,000, due to, of membership monies,
due to, let me find my script folks, I’m sorry, . . . due to PPOA’s
failure to comply with the state sales tax recovery requirements.
Mrs. Tomlinson directed the board to keep this from the
membership. This directly violates our personal ethics, PPOA’s
Mission Statement, PPOA’s Policy Statement, which I read; the


                                 13
officers, the board members and management of the Corporation will
set an example of the highest ethical conduct. The corporation
expects complete candor and total honestly of all of its officers,
board members, managers, and employees to assure compliance
with this policy.

There are a number of things that go on every day in our board
activities that we are not following the policy. And again, we have
asked to follow the policy. I don’t want to be up here, I don’t want to
be subject to lawsuits, I don’t want to be personally liable, and I don’t
want to be responsible to you, the members of this Association, we
want to do things right. Some of the things that aren’t happening
correctly; the board of Directors must approve any expenditure or
funding that is not approved in the budget or knowingly exceeds the
approved budget. And we are not doing that. The Board of
Directors must also approve any transfer of budgeted funds between
line items or between departments. We are not doing that. The
General Manager and his designee shall have the authority to sign
checks up to and including $1,000. The Board must approve all
expenditures after $1,000. And by having the President of the
organization to sign the check for that over $1000 expenditure does
not give the Board of Director’s approval, we did not approve it. All
contracts and agreements with cumulative costs exceeding $1,000
must be approved by the Board of Directors and signed by the
President, Treasurer, or other officer of the Corporation. The terms
and conditions of all personal contracts and agreements must be in
writing and approved by the Board of Directors. This Board of
Directors, does not, once again seen any of these and yet we are
asked by you and the Finance Committee to approve a budget, but
we don’t know what the contracts or obligations and salaries are. I
don’t get it. Again, how does a conscientious director approve a
budget without these items.

Once again, this group of dedicated directors simply asking Mrs.
Tomlinson to step down and allow the election of a new president
who can resolve these moral and ethical dilemmas. Allow this Board
and community to begin restoring trust amongst us. This is
probably, it is, the hardest thing, the most difficult thing I have been
involved in, in my total life. Working on this Board, more than
anything coming to this Board meeting, this specially called board
meeting, when it could have been resolved without this action. I
thank you very much for your ears, your consideration, as to each of
the group that are trying to resolve this moral, ethical dilemma we


                                   14
      find ourselves in. We have the power and votes to depose Mrs.
      Tomlinson but we choose not to do that. We ask Mrs. Tomlinson, in
      good conscience, to step down. Should she not do that, then an
      option is to back away and work with the board to solve these
      issues. I thank you again. [Emphasis added to show portions
      complained of.]

      After viewing the two specific complained-of statements in the context of

McComas’s entire statement, and considering the forum in which McComas read

his statement—at a specially-called homeowners’ association meeting to address

the issue of removal of PPOA’s president—we hold that the statements are not

defamatory as a matter of law. As set forth above, McComas expressed his

opinions regarding the way Lynda presided over matters affecting PPOA. He

stated that her ―ill-minded‖ or ―single-minded‖ rejection of requests for

investigation into the potential conflict of interest between PPOA and former

president Lowrey concerning the settlement agreement had ―not only cost PPOA

serious money, thousands and possibly millions of dollars, but it eliminates our

ability to limit Anthony Groups’ truck weight limits unless they are specifically

working a on [sic] single family dwelling.‖ He stated that, ―Madam President’s

actions were in description[:] unethical, unprofessional, and in direct conflict of

interest of the best interest of our membership‖ and noted that ―[t]he policy in this

membership/Association is that it will be the policy of PPOA to maintain the

highest ethical and legal standards in conduct of its business‖ and ―[t]o avoid

situations where there might, just might give the either the appearance of

unethical or illegal behavior.‖



                                         15
      The two statements by McComas that the Tomlinsons allege are

defamatory simply express McComas’s opinions––neither statement constitutes

the assertion of a verifiable fact or purports to be verifiable––and opinions are not

actionable for defamation. See id.; Vice v. Kasprzak, 318 S.W.3d 1, 22 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied) (holding statement that plaintiff, who

acted as president of board of directors for homeowners’ association and

attorney of record for subdivision developer in actions against association

members for delinquent maintenance fees, had engaged in ―unethical business‖

was an opinion and was not actionable as defamatory statement); Brewer, 986

S.W.2d at 643 (holding that statements in ―20/20‖ news report program that

plaintiffs––nursing home owners––were responsible for patient abuse and had

engaged in ―profiteering‖ were, based on context and viewed in light of entirety of

report, opinions that would not support defamation action); Falk & Mayfield,

L.L.P. v. Molzan, 974 S.W.2d 821, 824 (Tex. App.––Houston [14th Dist.] 1998,

pet. denied) (holding statement accusing plaintiff of ―lawsuit abuse‖ was an

opinion and was not actionable as defamatory statement); see also Double

Diamond, Inc. v. Van Tyne, 109 S.W.3d 848, 854–56 (Tex. App.—Dallas 2003,

no pet.) (holding statements in flyer and letter distributed to homeowners

criticizing homeowner’s association’s management of subdivision were not

capable of defamatory meaning); Hadlock v. Tex. Christian Univ., No. 02-07-

00290-CV, 2009 WL 485669, at *3–5 (Tex. App.––Fort Worth 2009, pet. denied)

(holding statements made in faculty meeting—the crux of which were that plaintiff


                                         16
professor had acted unethically and unprofessionally and was guilty of

misconduct—were opinions that were not actionable as defamation).

      Moreover, the two opinions expressed by McComas are set out in the

lengthy statement that he read at the PPOA meeting, and that statement sets

forth the factual basis for McComas’s opinions. See Brewer, 986 S.W.2d at 643.

A listener hearing McComas’s statement and the two complained-of opinions

contained in the statement would be able to hear and to evaluate the facts on

which McComas based his opinions and either accept or reject the opinions.

See id. Based on the facts given in McComas’s statement, the persons hearing

it or reading it could easily decide for themselves the validity of McComas’s

opinions concerning Lynda’s alleged conduct and its impact. See id.

      Because—when viewed as a person of ordinary intelligence would

perceive the entire statement—the two opinions expressed by McComas and

complained of by the Tomlinsons are not actionable as defamatory statements as

a matter of law, Appellees conclusively negated an essential element of the

Tomlinsons’ defamation claim. Accordingly, we hold that the trial court did not err

by granting Appellees’ motion for summary judgment or by denying the

Tomlinsons’ motion for partial summary judgment. 4 See, e.g., Double Diamond,



      4
       The Tomlinsons do not point to any defamatory statements made by
Wilson, Jensen, Roman, and Robinius; therefore, summary judgment is proper
for them as well. To the extent that the Tomlinsons rely on McComas’s opinions
as being on behalf of the board and as extending to the remaining Appellees, we
have held that such opinions are not actionable as defamatory statements as a

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Inc., 109 S.W.3d at 854–55 (holding summary judgment for defendant proper

because the complained-of statements were not defamatory as a matter of law);

Marx v. Elec. Data Sys. Corp., No. 07-08-00022-CV, 2009 WL 1875505, at *9

(Tex. App.—Amarillo June 30, 2009, no pet.) (holding summary judgment for

defendant on plaintiff’s slander claim proper because statements, such as ―yeah,

you know, the sneaky snake is here,‖ were not defamatory as a matter of law).

      We overrule the Tomlinsons’ sole issue.

                                IV. CONCLUSION

      Having overruled the Tomlinsons’ sole issue, we affirm the trial court’s

judgment.

                                                 SUE WALKER
                                                 JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

DELIVERED: November 17, 2011




matter of law and therefore cannot be grounds for holding the remaining
Appellees liable.


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