AFFIRM in Part, REVERSE in Part, and REMAND; Opinion Filed April 7, 2014.




                                          S   In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                      No. 05-12-01737-CV

                      GID PORTER, Appellant
                               V.
 SOUTHWESTERN CHRISTIAN COLLEGE, JACK EVANS, AND HERBERT EVANS,
                            Appellees

                        On Appeal from the 86th Judicial District Court
                                   Kaufman County, Texas
                              Trial Court Cause No. 82412-86

                                          OPINION
                          Before Justices Francis, Lang-Miers, and Lewis
                                     Opinion by Justice Lewis
        Gid Porter appeals the trial court’s order granting summary judgment and dismissing all

of his claims against appellees Southwestern Christian College (the “College”), Jack Evans

(“Jack), and Herbert Evans (“Herbert”). In this Court, Porter contends the trial court erroneously

granted summary judgment on his claims against all appellees for slander, conspiracy, and

intentional infliction of emotional distress. We reverse the trial court’s judgment dismissing

Porter’s slander and conspiracy claims against Herbert and the College. In all other respects, we

affirm the trial court’s order.

                                           Background

        In 2010, Porter was the head track coach at the College. Herbert was the College’s

athletic director and Porter’s supervisor. Jack, Herbert’s father, was the College’s president.
       It is undisputed that Porter allowed two ineligible athletes to run in a meet in March

2010. Porter first denied this, but later admitted it. Herbert discovered what Porter had done and

reported it to Jack; Jack terminated Porter. Porter unsuccessfully appealed his termination to the

College’s Board of Directors. During the appeal hearing before the Board, Jack told the Board

that Porter was a liar and of low moral character.

       In the meantime—according to Porter—Herbert had failed to submit certain required

student eligibility forms to the National Junior College Athletic Association (the “NJCAA”), the

governing body for the College’s athletic programs. Porter contends it was Herbert’s job to

create and submit those forms; Herbert contends it was Porter’s job to do so.

       Because of the failure to submit eligibility forms in a timely fashion, the NJCAA initiated

an audit of the College’s track program. Herbert acknowledges he did not respond to the audit

request; he says he did not respond because the penalty for that failure would be less than the

penalty that would be incurred for running ineligible athletes in a track meet. The NJCAA

sanctioned the track program by refusing to allow them to compete in the 2010 outdoor track and

field national championships. Herbert addressed the track team and told members they were not

able to compete in the championships because Porter ran ineligible athletes. According to Porter,

Herbert made the same statement to Kragen Hawkins, the father of one of the track-team

members. Porter contends Herbert’s version of the sanction spread throughout the track-and-

field community, preventing Porter from obtaining another job.

       Porter sued Jack and Herbert on theories of slander, conspiracy, and intentional infliction

of emotional distress. Porter also sued the College on all three grounds, asserting in his petition

that both Jack and Herbert were acting in the course and scope of their employment, making the

College vicariously liable under the theory of respondeat superior. Appellees moved for both




                                               –2–
no-evidence and traditional summary judgment on all three claims, and the trial court granted the

motion without specifying the basis for its ruling. Porter appeals.

                                 Summary Judgment Standards

       We review the grant of summary judgment de novo. Travelers Ins. Co. v. Joachim, 315

S.W.3d 860, 862 (Tex. 2010). Porter’s first three issues address his no-evidence motion. We

review a no-evidence summary judgment under the same legal sufficiency standard used to

review a directed verdict. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). To

defeat a no-evidence summary judgment, the nonmovant is required to produce evidence that

raises a genuine issue of material fact on each challenged element of his claim. Id.; see also

TEX. R. CIV. P. 166a(i). In this case, appellees challenged all three of Porter’s claims in their no-

evidence motion. Porter’s fourth through seventh issues address appellees’ traditional summary

judgment motion. With respect to a traditional motion for summary judgment, the movant has

the burden to demonstrate 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); Nixon v. Mr. Prop. Mgmt. Co., 690

S.W.2d 546, 548–49 (Tex. 1985). In reviewing both a traditional and no-evidence summary

judgment, we consider the evidence in the light most favorable to the nonmovant. Smith v.

O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.

2008). We credit evidence favorable to the nonmovant if reasonable jurors could, and we

disregard evidence contrary to the nonmovant unless reasonable jurors could not.              Mann

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

                                      Respondeat Superior

       At the threshold, we point out that Porter pleaded the College was responsible for Jack

and Herbert’s allegedly tortious conduct pursuant to respondeat superior. This common law rule

renders an employer vicariously liable for the tortious conduct of an employee acting within the

                                                –3–
scope of his employment, although the employer has not personally committed a wrong. See

Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). A plaintiff pleading

respondeat superior bears the burden of establishing that the employee acted within the course

and scope of his employment. Parker, 249 S.W.3d at 397 (citing Leadon v. Kimbrough Bros.

Lumber Co., 484 S.W.2d 567, 569 (Tex. 1972)). But appellees’ no-evidence summary judgment

motion did not challenge Porter’s ability to prove Herbert and Jack acted in the course and scope

of their employment.     Nor did appellees’ traditional summary judgment motion attempt to

establish as a matter of law that the individual defendants were not acting in the course and scope

of their employment when they made the complained-of statements. We are left with Porter’s

unchallenged pleading of respondeat superior. We conclude, therefore, that if any claims against

the individual defendants survive summary judgment, the corresponding claims against the

College must survive as well.

                                             Slander

         “Slander is a defamatory statement that is orally communicated or published to a third

person without legal excuse.” Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 646 (Tex.

1995).

                                      No-Evidence Motion

         Appellees’ no-evidence motion made the following four challenges to Porter’s slander

claim:

                First, [Porter] admittedly ran ineligible athletes in violation of NJCAA
                rules—a complete defense.

                Second, due to [Porter’s] improper conduct, [the College] was ultimately
                forced to opt to untimely respond to a mandated eligibility audit and
                accept sanctions in lieu of disclosing that [Porter] knowingly and
                improperly ran ineligible athletes in violation of NJCAA rules, to avoid
                subjecting [the College’s] entire athletic program to further scrutiny.
                Therefore, [appellees] had a good faith belief that [Porter’s] conduct


                                               –4–
               ultimately was the root cause of [the College] being subjected to
               sanctions—a substantial truth and complete defense.

               Third, [Porter] requested and was granted an appeals proceeding before
               [the College’s] Board to challenge his alleged wrongful termination.
               Therefore, [Porter] created a situation in which he invited the alleged
               defamatory statements to be presented to the Board—a defense to claims
               of defamation.

               Fourth, [Porter] has no evidence that he suffered any damages resulting
               from these truthful and/or substantially truthful statements regarding his
               improper conduct.

The first three of these challenges—truth, substantial truth, and invited remarks—are all

affirmative defenses on which appellees would have the burden of proof at trial. See id. (truth is

affirmative defense); Grotti v. Belo Corp., 188 S.W.3d 768, 775 (Tex. App.—Fort Worth 2006,

pet. denied) (substantial truth is affirmative defense); Oliphint v. Richards, 167 S.W.3d 513, 516

(Tex. App.—Houston [14th Dist.] 2005, pet. denied) (recovery is barred by consent,

authorization, or invitation to publish). Therefore, these defensive theories cannot be the subject

of a no-evidence motion for summary judgment. Thomas v. Omar Invs., Inc., 129 S.W.3d 290,

293 (Tex. App.—Dallas 2004, no pet.) (“A party should not move for no-evidence summary

judgment based on an affirmative defense that it has the burden to prove at trial.”).

       Accordingly, appellees’ no-evidence motion on slander is limited to their challenge to

evidence on the element of damages. In response, Porter argues that Herbert’s statements caused

damage to his professional status and are defamatory per se; thus, general damages are

presumed. See Bentley v. Bunton, 94 S.W.3d 561, 604 (Tex. 2002). However, Porter also

produced summary judgment evidence, in the form of affidavit testimony, indicating his

professional reputation and prospects were harmed by Herbert’s statements. The key affidavit

was from Mike Houston, the track coach at Oklahoma City College at the relevant time.

Houston testified that (1) he heard the rumor at the national championships—spread among track

coaches—that the College had been suspended from the meet because Porter had run ineligible

                                                –5–
runners at an earlier meet; (2) he recruited a track runner from the College, who told him Herbert

told the team the suspension was because Porter ran ineligible runners; and (3) Porter approached

him about an assistant coach position, but Houston could not recommend Porter for the job

because of this “baggage.” We conclude Porter brought forward sufficient evidence to raise a

material fact issue on the damages issue of his claim against Herbert, even if damages are not

presumed.

          However, the summary judgment record does not contain evidence demonstrating how

Porter’s reputation was harmed by Jack’s statement before the Board. The summary judgment

evidence is undisputed that Jack’s statements were not re-published outside of the Board

meeting, so any harm from those statements would be limited to actions by the Board. But

Porter has not offered any evidence suggesting the Board’s decision on his appeal was based on

Jack’s statements rather than Porter’s own wrongdoing. In the absence of evidence of damages,

appellees’ no-evidence motion succeeds as to Jack.

          We overrule Porter’s first issue as to Jack. We sustain the issue as to Herbert and the

College.

                                                  Traditional Motion

          Next we determine whether appellees’ traditional motion for summary judgment on

Porter’s slander claim can succeed against Herbert.                               Appellees addressed their affirmative

defenses to slander in their traditional motion, undertaking to prove Herbert’s statements were

true or substantially true. 1 As to the statements made by Herbert to the track team and to Mr.

Hawkins, Porter claims the statements were false. He contends the NJCAA did not sanction the

College because Porter ran ineligible athletes; it sanctioned the College because Herbert failed to


     1
       Because Jack’s no-evidence motion succeeded on the no-damages ground, we need not address the defense of consent or invited remarks,
which Jack urged in the traditional motion.



                                                                  –6–
respond to audit requests that were, in turn, generated by Herbert’s own failures to submit

eligibility forms.   Porter produced summary judgment evidence—in the form of Herbert’s

deposition excerpts—showing: Herbert did not submit the eligibility forms; the audit request

came as a result; Herbert did not respond to the audit request; and the failure to respond to the

audit request was the reason given for the sanctions. The NJCAA letter stating sanctions were

being imposed because of the failure to respond to the audit request is included in the summary

judgment record as well. Given this evidence, we conclude Porter has raised a material fact issue

as to appellees’ affirmative defense of truth.

       Appellees next argue they established as a matter of law that Herbert’s statements were

“substantially true” because Herbert testified he chose not to respond to the audit request to

avoid a more stringent sanction if the body learned of Porter’s conduct. We determine whether a

statement is substantially true by considering whether the allegedly defamatory statement was

more damaging to the plaintiff’s reputation in the mind of the average listener than a truthful

statement would have been. McIlvain v. Jacobs, 794 S.W.2d 14, 16 (Tex. 1990). The question

here is whether it was more damaging to Porter’s reputation to tell the average listener that the

College was suspended because Porter ran ineligible runners than to tell that listener the College

was suspended because Herbert failed to respond to an audit request. And the statement made by

Herbert about Porter would have been more harmful to Porter’s reputation. Therefore, Porter has

raised a fact issue on appellees’ defense of substantial truth. See id.

       Appellees’ traditional motion for summary judgment did not establish either of their

affirmative defenses to slander as a matter of law. We sustain Porter’s fourth issue as to Herbert

and the College.

       In his fifth issue, Porter argues the traditional motion concerning recovery of punitive

damages for slander should fail because he raised a fact issue as to whether appellees acted with

                                                 –7–
malice. A plaintiff must prove the statements were made maliciously to justify punitive damages

in a defamation case. See Leyendecker & Assocs., Inc. v. Wechter, 683 S.W.2d 369, 375 (Tex.

1984). Malice may be inferred from circumstances showing “such recklessness as to indicate a

disregard of the consequences.” Id. In Leyendecker, the court concluded an inference of malice

could be supported by the repetition of a false statement when its truth or falsity was peculiarly

within the knowledge of the speaker. The summary judgment evidence indicates the falsity of

Herbert’s statements was peculiarly within his knowledge—the NJCAA’s letter explaining the

sanctions was sent to him. Moreover, we have only Herbert’s testimony that he decided not to

respond to the NJCAA’s audit request because the penalty would be greater if he revealed the

coach’s wrongdoing.        Summary judgment is rarely appropriate when based solely on an

interested witness’s statement of his own intent; a fact finder could choose not to believe that

witness. See Hunt v. Van Der Horst Corp., 711 S.W.2d 77, 79 (Tex. App.—Dallas 1986, no

writ); see also Parkway/Lamar Partners, L.P. v. Tom Thumb Stores, Inc., 877 S.W.2d 848, 850

(Tex. App.—Fort Worth 1994, writ denied).

       We conclude appellees failed to establish as a matter of law that Herbert did not act with

malice. We sustain Porter’s fifth issue as to his claim for punitive damages against Porter and

the College for slander.

                                          Conspiracy

       In his second and sixth issues, Porter challenges the summary judgment granted on his

conspiracy claim on both no-evidence and traditional grounds. On both grounds of their motion,

appellees urged a single reason why they were entitled to judgment as a matter of law. They

contended Porter could not prevail on his slander theory against any of the appellees, so he could

not possibly prevail on the “derivative” theory of conspiracy to commit slander. However, we

have concluded that Porter raised a genuine issue of material fact on his slander claim against

                                               –8–
Herbert. Appellees did not raise any other ground for summary judgment on the conspiracy

claim. We cannot affirm a summary judgment on any ground not raised in the motion. See Stiles

v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993) (“a summary judgment cannot be

affirmed on grounds not expressly set out in the motion”). Accordingly, because we have

reversed the summary judgment on slander as to Herbert—and therefore as to the College—we

must reverse the summary judgment on conspiracy as to those parties as well.

       We sustain Porter’s second and sixth issues as to Herbert and the College.

                          Intentional Infliction of Emotional Distress

       In his third issue, Porter challenges the no-evidence summary judgment granted on his

claim for intentional infliction of emotional distress. 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 emotional distress suffered by the
               plaintiff was severe.

Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). Appellees’ motion contended Porter had

no evidence of any of these elements. In his response (and on appeal), Porter responded with

evidence of the purported slander by Herbert. Porter argues Herbert intentionally lied as to the

cause of the NJCAA’s sanctions to avoid blame for his own failures. And Porter argues the

consequences of the purported slander were the loss of his job and of future job prospects.

        Whether a defendant’s conduct may reasonably be regarded as so extreme and

outrageous as to permit recovery for intentional infliction of emotional distress is a question of

law. Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993). The standard for extreme and

outrageous conduct is very high. As the supreme court has instructed:

               liability for outrageous conduct should be found “only where the conduct
               has been so outrageous in character, and so extreme in degree, as to go


                                               –9–
               beyond all possible bounds of decency, and to be regarded as atrocious,
               and utterly intolerable in a civilized community.”

Twyman, 855 S.W.2d at 621 (quoting RESTATEMENT (SECOND) OF TORTS § 46, cmt. d (1965)).

A defendant’s motive or intent is insufficient, standing alone, to support liability: the conduct

itself must be extreme and outrageous. Tex. Farm Bureau Mut. Ins. Cos. v. Sears, 84 S.W.3d

604, 612 (Tex. 2002). Courts have rarely found extreme and outrageous conduct in workplace

disputes. See id. at 611–12. Indeed, even the fact of wrongful termination is legally insufficient

to meet the Twyman standard. SW Bell Mobile Sys., Inc. v. Franco, 971 S.W.2d 52, 54 (Tex.

1998). Accepting all of Porter’s summary judgment evidence as true, we cannot conclude it is

evidence of extreme and outrageous conduct.

       We overrule Porter’s third issue. Given this resolution, we need not address his seventh

issue, challenging appellees’ traditional summary judgment motion on the same claim.


                                            Conclusion

       We reverse the trial court’s order insofar as it dismisses Porter’s slander and conspiracy

claims against Herbert and the College. We remand those claims to the trial court for further

proceedings. In all other respects, we affirm the trial court’s order.




                                                     /David Lewis/
                                                     DAVID LEWIS
                                                     JUSTICE


121737F.P05




                                                –10–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

GID PORTER, Appellant                                  On Appeal from the 86th Judicial District
                                                       Court, Kaufman County, Texas
No. 05-12-01737-CV          V.                         Trial Court Cause No. 82412-86.
                                                       Opinion delivered by Justice Lewis.
SOUTHWESTERN CHRISTIAN                                 Justices Francis and Lang-Miers
COLLEGE, JACK EVANS, AND                               participating.
HERBERT EVANS, Appellees

       In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court’s
judgment dismissing appellant Gid Porter’s slander and conspiracy claims against appellees
Herbert Evans and Southwestern Christian College. In all other respects, the trial court’s
judgment is AFFIRMED. We REMAND this cause to the trial court for further proceedings
consistent with this opinion.
       It is ORDERED that each party bear its own costs of this appeal.


Judgment entered this 7th day of April, 2014.




                                                   /David Lewis/
                                                   DAVID LEWIS
                                                   JUSTICE




                                                –11–
