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holding good faith element of official immunity established in defamation case where defendant explained in affidavit she was top college administrator over plaintiff and allegedly defamatory letters were written to her superiors in response to question concerning plaintiff's performance
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No. 01-05-00760-CV
Opinion issued March 2, 2006.
On Appeal from the 281st District Court, Harris County, Texas, Trial Court Cause No. 2004-26205.
Panel consists of Justices TAFT, HIGLEY, and BLAND.
MEMORANDUM OPINION
Appellant, Diana Castillo, appeals an interlocutory order denying, in part, her summary judgment motion based on official immunity. See Tex. Civ. Prac. Rem. Code Ann. § 51.014(5) (Vernon Supp. 2005). We determine whether Castillo carried her burden of proving her affirmative defense of official immunity as a matter of law and, if so, whether appellee, Olga Flores, then raised a material fact issue on that affirmative defense. We reverse that portion of the trial court's order denying summary judgment on the basis of official immunity on part of Flores's claim against Castillo for defamation, we affirm that portion of the order denying summary judgment on the remainder of Flores's claim against Castillo for defamation and on Flores's claim against Castillo for intentional infliction of emotional distress ("IIED"), and we remand the cause with instructions.
Standard of Review and Summary Judgment Burden
The propriety of a summary-judgment ruling is a question of law, and we thus review that ruling de novo. Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In reviewing a summary judgment, evidence favorable to the non-movant is taken as true, and all reasonable inferences are indulged in the non-movant's favor. Johnson Co. Sheriff's Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996).
The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that she is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex. 1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant moving for traditional summary judgment must either disprove at least one element of each of the plaintiff's causes of action or plead and conclusively establish each essential element of her affirmative defense, thereby rebutting the plaintiff's causes of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). When the defendant has carried its summary-judgment burden, the burden shifts to the non-movant to raise a material fact issue precluding summary judgment. Virginia Indonesia Co. v. Harris County Appraisal Dist., 910 S.W.2d 905, 907 (Tex. 1995).
Background
Flores was the Dean of Student Development at Houston Community College's ("HCC") Southeast College. Until April 1998, Castillo was Dean of Students at HCC's Central College. From May 1998 until December 2002, she was College Operations Officer ("COO") at HCC's Southeast College. In January 2003, Castillo became the interim president at Southeast College. While interim president, Castillo was Flores's direct supervisor. The events underlying this litigation occurred while Castillo was COO and interim president of Southeast College. In a nutshell, Flores alleged that, just prior to and after Castillo's becoming interim president, Castillo had defamed her, harassed her, unfairly discredited and criticized her, interfered with her management, threatened her with adverse actions, attacked her work and reputation, and generally made working at HCC harsh and unbearable because Castillo wanted a presidency position for herself, to the exclusion of Flores, and because Castillo was retaliating against Flores for various reasons. Castillo disputed both the occurrence of most of the alleged actions and the motivation that was alleged to have been behind them.
In her final petition, Flores pleaded the following claims against Castillo in her individual capacity: (1) defamation, (2) IIED, and (3) "tortious interference with beneficial relations." Based on Flores's petition, as clarified by her summary-judgment response, Flores's defamation cause of action arose from the following seven communications, each of which, when viewed in the required light, criticized Flores:
Flores also sued the HCC System and Bruce Leslie, HCC's chancellor. The claims against Leslie were dismissed upon summary judgment, and all but one of the claims against the HCC System were dismissed upon summary judgment. The propriety of the rulings relating to those defendants is not before us in this interlocutory appeal, and they are not parties to this appeal.
• An e-mail ("the Castillo E-Mail"), dated October 15, 2002, from Castillo to HCC Trustee Yolanda Navarro Flores ("HCC Trustee Yolanda Flores").
HCC Trustee Yolanda Flores was not related to appellee Flores.
• A letter ("the Castillo Letter"), dated March 1, 2003 and authored by Castillo, which followed up on a previous discussion with HCC Trustee Herlinda Garcia.
• An anonymous faculty petition ("the Anonymous Faculty Petition"), dated August 4, 2003, requesting that the Health Sciences Student Services department be returned to the leadership of the Dean of Health Sciences.
• Four anonymous letters ("the Anonymous Letters"), each criticizing Flores and her actions or management.
Flores's claim for IIED was based on the seven communications summarized above and on other acts that allegedly subjected Flores to contempt and ridicule and that constituted "acts of insult, interference and harassment."
Castillo moved for traditional and no-evidence summary judgment, asserting the affirmative defense of official immunity to the three causes of action and also asserting attacks on the merits of all claims. See Tex. R. Civ. P. 166a(c), (i). Flores responded. After an oral hearing, the trial court granted Castillo's summary-judgment motion on Flores's claim for "tortious interference with beneficial relations," but denied the motion with respect to Flores's claims for defamation and IIED.
As is discussed in more detail below, although Castillo's summary-judgment motion asserted official immunity as an affirmative defense to the causes of action for IIED and "tortious interference with beneficial relations," the motion asserted official immunity as a defense to only two of the allegedly defamatory publications underlying Flores's defamation claim: the Castillo E-Mail and the Castillo Letter. Castillo's motion did not assert this affirmative defense to the remaining allegedly defamatory publications.
Official Immunity
In her sole issue, Castillo argues that the trial court erred in denying her summary-judgment motion on the basis of official immunity. Because the trial court's order left standing Flores's claims for defamation and IIED, and the parties' official-immunity evidence differed to some extent for the two causes of action, we separately consider the propriety of the order on each cause of action.
A. The Law
Official immunity is an affirmative defense. Telthorster v. Tennell, 92 S.W.3d 457, 460 (Tex. 2002). Official immunity immunizes a public official from liability when her complained-of actions were (1) performed within the scope of her authority, (2) discretionary duties, and (3) performed in objective good faith. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161-62 (Tex. 2004). In the summary-judgment context, a defendant asserting official immunity must conclusively establish all three elements. Telthorster, 92 S.W.3d at 461. Only if the proponent conclusively proves all three elements does the summary-judgment burden shift to the non-movant to raise a fact issue. See Virginia Indonesia Co., 910 S.W.2d at 907; see also Telthorster, 92 S.W.3d at 465 (holding same in context of good-faith element of official-immunity affirmative defense).
1. Scope of Authority
"[P]ublic officials act within the scope of their authority if they are discharging the duties generally assigned to them." Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex. 2004). "The fact that a specific act that forms the basis of the suit may have been wrongly or negligently performed does not take it outside of the scope of authority." Koerselman v. Rhynard, 875 S.W.2d 347, 350 (Tex.App.-Corpus Christi 1994, no writ).
2. Discretionary Duty
"Ministerial acts are those for which `the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment.'" Ballantyne, 144 S.W.3d at 425 (quoting Comm'r of the Gen. Land Office v. Smith, 5 Tex. 471, 479 (1849)). "If the public official must obey an order, without having any choice in complying, the act is ministerial." Id. In contrast, however, "[i]f an action involves personal deliberation, decision, and judgment, . . . it is discretionary." Id. 3. Good Faith
"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, 145 S.W.3d at 164. Accordingly, "[t]he standard of good faith as an element of official immunity is not a test of carelessness or negligence," is not "a measure of an official's motivation," and does not require that the proponent "prove that it would have been unreasonable not to engage in the conduct, or that all reasonably prudent [officials] would have engaged in the same conduct." Ballantyne, 144 S.W.3d at 426; Telthorster, 92 S.W.3d at 465. Neither does the good-faith test "inquire into `what a reasonable person would have done,' but into `what a reasonable [person] could have believed.'" Ballantyne, 144 S.W.3d at 426 (quoting Telthorster, 92 S.W.3d at 465) (emphasis in Telthorster). Therefore, "[w]hen a public official considers two courses of action that could reasonably be believed to be justified, and selects one, he satisfies the good faith prong of official immunity as a matter of law." Id.
If the public official carries her summary-judgment burden of conclusively establishing good faith, the plaintiff, in order to raise a material fact issue, must produce evidence that no reasonable official in the defendant's position could have believed that the facts were such that they justified her conduct. Telthorster, 92 S.W.3d at 465.
B. Defamation
Castillo first argues that the trial court improperly rejected her official-immunity affirmative defense with respect to Flores's defamation claim. As Castillo did below in her summary-judgment motion, we divide our discussion into two parts: (1) one considering the defamation claim based on the Castillo Letter and the Castillo E-Mail, both of which Castillo admitted authoring, and (2) the other considering the defamation claim based on the four Anonymous Letters and the Anonymous Faculty Petition, which Castillo denied authoring.
1. The Castillo Letter and the Castillo E-Mail
The Castillo E-Mail was sent to HCC Trustee Yolanda Flores and said, among other things, that Flores "is not ready for a Presidency. . . . [S]he may have credentials, but she is scattered to the winds. Central [College] is huge and complex. She cannot do this." The Castillo Letter followed up on a conversation with HCC Trustee Garcia and said, among other things, that Flores "did not work out at [HCC's] Central [College]"; that the former HCC president had been ready to release Flores for not having met her primary responsibilities at HCC's Central College; that Flores would "probably fail at [HCC's Southwest College] because the team out there is not going to tolerate her antics; that Flores was "having problems with" five African American Southeast College employees; that Flores made a bad hiring decision; that "the blacks all know that [Flores] gave this . . . job to [the job recipient] because of the LULAC connections"; and that Flores had "burned her bridges with everyone" and that "no one trusts her."
a. Scope of Authority
Castillo produced the following summary-judgment evidence relevant to the scope of her authority. From 1991 until April 1998, Castillo was Dean of Students at HCC's Central College. From May 1998 until December 2002, she was COO at HCC's Southeast College. As COO, Castillo's duties included, among other things, the oversight of all personnel matters. In December 2002, Castillo accepted the interim presidency at Southeast College, and she transitioned into the position in January 2003. As interim president, Castillo was "the top administrator and the ultimate decision maker at the college level regarding personnel," and she handled all human-relations matters, position-control matters, hirings, and terminations for two other HCC campuses. Castillo was Flores's supervisor during her interim presidency.
Castillo's evidence showed that she sent the Castillo E-Mail to HCC Trustee Yolanda Flores in response "to inquiries of me related to the subject of [employment] opportunities for Hispanics," which was a subject in which Castillo and HCC Trustee Yolanda Flores had discovered that they had a common interest. Castillo's evidence also showed that she drafted the Castillo Letter "in response to some inquiries [HCC Trustee Garcia] made of me during a meeting concerning situations that were arising at Southeast College. . . ." Castillo also averred that the matters that she discussed in the Castillo Letter — specifically, the possibility of Flores's transfer, Flores's treatment of African Americans, Flores's not "work[ing] out at Central [College]" — were in response to prior questions or statements from, or prior discussions with, HCC Trustee Garcia.
Taken together, the above evidence showed that, when Castillo drafted these two documents, she was "discharging the duties generally assigned to [her]," that is, acting within the scope of her authority as COO, which gave her oversight of all personnel matters, and as interim president, which made her the ultimate decision-maker at Southeast College on personnel matters. See Ballantyne, 144 S.W.3d at 424.
In response, Flores first asserts that Castillo admits in her brief that the "summary judgment evidence on this element is controverted." Castillo's brief did not admit this: instead, Castillo's briefing merely noted what Flores's summary-judgment arguments below had been. In fact, we have found no controverting summary-judgment evidence on the scope-of-authority element.
Flores next contends that Castillo could not have carried her burden on this element because Castillo's affidavit "admits that `no law or [HCC] policy required' her to make the communications" and because Castillo did not "provide any summary judgment evidence demonstrating the hierarchical relationship between herself and the individual trustee." First, Castillo did not aver that no HCC policy or law required her to make the communications, but instead averred that no HCC policy or law dictated how she should respond to trustees' inquiries. Second, although Castillo did not produce evidence of the hierarchical relationship between herself and the HCC trustees, she did produce uncontroverted evidence that, as COO, she had oversight of all personnel matters at HCC, and as interim president, she was the ultimate decision-maker on personnel matters. The statements in the Castillo E-Mail and the Castillo Letter concerned personnel matters; the statements were thus made in the scope of Castillo's duties as COO and interim president.
Flores focuses incorrectly on whether Castillo had authority to respond to HCC trustees' personnel inquiries; the proper focus, however, is on the "duties generally assigned" to Castillo — here, her oversight of personnel matters. Cf. City of Hidalgo v. Prado, 996 S.W.2d 364, 368, 372 (Tex.App.-Corpus Christi 1999, no pet.) (holding that police chief acted within scope of authority, for official-immunity purposes, when committing acts alleged to have amounted to IIED and wrongful termination because chief's actions "related to personnel actions" and because "[h]iring, firing, and reprimanding police officers is generally within the scope of the authority of the police chief"); Moulton v. Vaughn, 982 S.W.2d 107, 110-11 (Tex.App.-Houston [1st Dist.] 1998, pet. denied) (holding that university-employee defendant — whose duties include recruiting employees and making personnel recommendations to university board — acted within scope of duties when he ordered plaintiff to undergo required psychological testing for university job, obtained testing results, and divulged that information to university entity to which plaintiff had not consented divulging his confidential information).
See Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 424 (Tex. 2004).
Rule 166a allows a summary-judgment motion to be based on the "uncontroverted testimonial evidence of an interested witness, . . . if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted." Tex. R. Civ. P. 166a(c). Castillo's scope-of-authority evidence meets that test by, for example, not having been controverted by Flores's evidence and by being subject to being confirmed or controverted through examining HCC's policies, deposing Castillo's superiors, or the like.
We hold that Castillo conclusively proved the scope-of-authority element with respect to the Castillo E-Mail and the Castillo Letter.
b. Discretionary Duty
Castillo averred that
[t]he actions I took in responding to the inquiries of Trustees [sic] Navarro Flores and Trustee Garcia, and my various supervisory decisions, involved my judgment and discretion. There were no [HCC] policies that precisely dictated how I should respond to Trustees' inquiries, nor were there any policies that dictated how I should supervise my subordinates. These decisions were left to my judgment.
Castillo also produced evidence that the Castillo E-Mail and Castillo Letter were responses to trustees' inquiries on personnel-related matters. In addition, Castillo produced evidence that (1) when the Castillo E-Mail was written, she was COO of Southeast College and had oversight of all personnel matters and (2) when the Castillo Letter was written, she was "the top administrator and the ultimate decision maker at the college level regarding personnel." As with the scope-of-authority official-immunity element, the proper focus is on whether the allegedly defamatory statements were made pursuant to Castillo's discretionary duties as the head of personnel matters, not on whether she had discretion to make defamatory statements while discharging those personnel-management duties. See Dear v. City of Irving, 902 S.W.2d 731, 738 (Tex.App.-Austin 1995, writ denied).
The above evidence carried Castillo's summary-judgment burden to establish the discretionary-duty element conclusively. See Cantwell v. Tex. Dep't of Transp., No. 08-00-00229-CV, 2001 WL 258622, at *4 (Tex.App.-El Paso Mar. 15, 2001, no pet.) (not designated for publication) (holding that plaintiff's immediate supervisor, among others, had carried summary-judgment burden of proving that his terminating plaintiff was discretionary duty because affidavit showed that he "had discretion in personnel matters, including reviewing, evaluating, and making decisions such as whether to terminate an employee"); see also Titus Reg'l Med. Ctr. v. Tretta, 180 S.W.3d 271, 275 (Tex.App.-Texarkana 2005, no pet. h.) ("Executives and supervisors of State entities have uniquely discretionary authority."); Gustafson v. Dodds, No. 03-00-00644-CV, 2001 WL 359685, at *4 (Tex.App.-Austin Apr. 12, 2001, pet. denied) (not designated for publication) (in dictum, noting that "[p]ersonnel decisions are necessarily discretionary."); cf. Enriquez v. Khouri, 13 S.W.3d 458, 463 (Tex.App.-El Paso 2000, no pet.) (holding that director defendant's summary-judgment evidence proved conclusively that her statements to reporter, when she was not provided with rules or guidelines concerning contents of statements, was discretionary act under meaning of Education Code immunity statute); cf. also Deaver v. Bridges, 47 S.W.3d 549, 554 (Tex.App.-San Antonio 2000, no pet.) (holding that defendant was entitled to Education Code immunity because, among other things, his interpretation of settlement agreement with plaintiff, upon which his responses to outside inquiries were based, was left to his discretion).
Flores responds that Castillo's affidavit testimony concerning the Castillo E-Mail and the Castillo Letter contained hearsay. Although Flores raised this objection at trial, she did not obtain a ruling on it. Because hearsay is an objection concerning form and not substance, the objection may not be raised for the first time on appeal of a summary-judgment ruling. Tex. Commerce Bank v. New, 3 S.W.3d 515, 517 (Tex. 1999); Rizkallah v. Conner, 952 S.W.2d 580, 589 n. 7 (Tex.App.-Houston [1st Dist.] 1997, no pet.). Accordingly, Flores has waived her hearsay challenge to Castillo's evidence. See Ausaf v. Highlands Ins. Co., 2 S.W.3d 363, 365 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) ("To preserve error on an objection to summary judgment evidence, an order sustaining the objection must be in writing[,] signed, and entered into the record.").
Because Castillo carried her burden on the discretionary-duty element, the burden shifted to Flores to raise a material fact issue on this element. See Virginia Indonesia Co., 910 S.W.2d at 907. Flores produced no evidence that did so. Accordingly, we hold that Castillo conclusively proved that the Castillo E-Mail and the Castillo Letter were written and published in the performance of her discretionary duties at HCC's Southeast College.
c. Good Faith
In addition to having presented the evidence mentioned above, Castillo presented evidence that she had the opportunity to observe Flores's performance as part of Castillo's day-to-day supervisory responsibilities over the deans concerning budgetary issues, position control, and other oversight assignments that had been delegated to Castillo. Castillo's evidence showed that she based her opinion in the Castillo E-Mail that Flores was not ready to handle an HCC presidency on the fact that Central College was "a huge and complex institution" that had a "variety of construction projects that would be complex to handle"; on her observation that Flores had "difficulty with ambiguity"; on how "Flores conducted herself in meetings"; and on "information reported to me . . . by students," some of whom had complained that Flores "was not being responsive to them regarding their stipends, and others of whom had complaints that [Flores] was taking too long with their disciplinary hearings."
Castillo also averred that Flores had difficulty in "articulating to her staff and to other Deans how the projects were to be accomplished" and in "taking projects from the beginning to closure," but we may not consider that testimony because Flores produced evidence that, when viewed in the required light, tended to controvert it. See Johnson Co. Sheriff's Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996) (indicating that, in reviewing summary judgment, appellate court must take evidence favorable to non-movant as true and must indulge all reasonable inferences in non-movant's favor).
Castillo also averred that she based her opinion in the Castillo E-Mail on "information reported to me by [Flores's] staff," but we may not consider that testimony because Flores produced evidence that, viewed in the required light, tended to controvert it. See Endsley, 926 S.W.2d at 285.
We hold that this evidence carried Castillo's burden of conclusively proving that a reasonably prudent COO or interim president, in the same or similar circumstances that faced Castillo, could have believed her drafting and sending the Castillo E-Mail was justified based on the information that she possessed at the time. See Joe, 145 S.W.3d at 164. The burden thus shifted to Flores to produce some evidence that no reasonable official in Castillo's position could have believed that the facts were such that they justified that act. See Telthorster, 92 S.W.3d at 465.
Flores responded by producing ample summary-judgment evidence that Castillo unfairly criticized Flores and attacked her work and reputation because (1) Castillo wanted the HCC Central College presidency for herself and wanted to prevent Flores, who had been the likely choice for that position, from obtaining it and (2) Castillo was retaliating against Flores for her lawsuit or for her allies' complaints against Castillo. However, because "probative evidence on good faith is limited to objective evidence," "[g]ood faith in official immunity cases must be measured against a standard of objective legal reasonableness, without regard to the official's subjective state of mind." Tretta, 180 S.W.3d at 276 (rejecting consideration of summary-judgment evidence that defendant official did not act in good faith because he "disliked [plaintiff] and deliberately tried to prejudice his position and future at the Hospital" because such evidence concerned defendant's subjective state of mind). Moreover, this evidence does not meet Flores's burden of showing that no reasonable official in Castillo's position could have believed that the facts were such that they justified her actions. See Telthorster, 92 S.W.3d at 465; see also see Cayce v. Pomposelli, No. 05-01-01706-CV, 2002 WL 31159968, at *2 (Tex.App.-Dallas Sept. 30, 2002, pet. denied) (not designated for publication) ("We have reviewed [the plaintiff's] evidence that his transfer was retaliatory and [the individual defendants'] remarks defamatory. However, we cannot conclude that [the plaintiff] has carried his burden of proving that no reasonable person in [the individual defendants'] position could have thought the facts were such that they justified their acts.").
Regarding the Castillo Letter, Castillo presented evidence, in addition to that mentioned above, that "the backdrop" against which she discussed the matters raised in the letter was as follows: (1) Castillo's experience was that Flores had difficulty taking directives from Castillo and accepting Castillo's constructive criticisms (Castillo included a specific example of this that was not controverted by Flores); (2) Flores "often verbaliz[ed]" to Castillo that "[Flores] felt the college was not being administered to her satisfaction"; and (3) HCC Trustee Garcia told Castillo that her opinion was that "the president of the college [Castillo] should exercise a great deal of authority over the personnel that were entrusted to them [sic]" and that Castillo thus "should go ahead and make a recommendation to Chancellor Leslie to transfer [Flores], if [Castillo] felt that [Flores] was having a difficult time accepting supervision from [Castillo]." Castillo also averred that her statements about Flores's experience at Central College were based in part on what Flores had communicated to Castillo herself and on the statements of Dr. Sylvie Ramos, the then-president of HCC's Southeast College, who told Castillo that the former president of Central College had been getting ready to release Flores. Castillo also averred that she mentioned Flores's problems with African-American employees in the letter because HCC Trustee Garcia had reported to Castillo that HCC "Trustee Michael P. Williams . . . was concerned that some of the African Americans within the Southeast College felt that they were being mistreated by [Flores]" and had wanted to know what Castillo knew about the situation. Castillo further testified to basing her response to this specific inquiry on her "involvement in handling a series of employee grievances and my involvement with other personnel decisions."
The Castillo Letter mentioned five such African-American employees. Flores asserts that she raised a fact issue on whether four of these five employees had actually filed grievances against Flores by evidence that one of the five employees "was the only African American reporting directly to me that had a grievance." (Emphasis added.) In contrast, neither Williams's statements to Castillo, nor the Castillo Letter itself, limited the employees who had filed grievances against Flores to those reporting directly to Flores. Accordingly, Flores's summary-judgment evidence does not necessarily controvert Castillo's evidence as to why the four remaining employees were identified in the Castillo Letter. We may thus consider this evidence of Castillo's in determining whether she carried her summary-judgment burden. Moreover, Flores admits that at least one African American listed in the Castillo Letter did file a grievance against her.
We hold that this evidence carried Castillo's burden of conclusively proving that a reasonably prudent COO or interim president, in the same or similar circumstances that faced Castillo, could have believed her drafting the Castillo Letter was justified based on the information that she possessed at the time. See Joe, 145 S.W.3d at 164. The burden thus shifted to Flores to produce some evidence that no reasonable official in Castillo's position could have believed that the facts were such that they justified the her conduct. See Telthorster, 92 S.W.3d at 465.
In response, Flores first asserts that Castillo admits in her brief that the "summary judgment evidence on this element is controverted." Castillo's brief did not admit this: instead, Castillo's briefing merely noted what Flores's summary-judgment arguments below had been. Flores next relies on her summary-judgment evidence that Castillo's motives in making the statements were to prevent Flores from obtaining the Central College presidency, so that Castillo could obtain it, and to retaliate against Flores. This evidence does not carry Flores's summary-judgment good-faith burden because "probative evidence on good faith is limited to objective evidence" and thus "[g]ood faith in official immunity cases must be measured against a standard of objective legal reasonableness, without regard to the official's subjective state of mind." Tretta, 180 S.W.3d at 276; see Telthorster, 92 S.W.3d at 465; Cayce, 2002 WL 31159968, at *2.
We hold that Castillo conclusively proved the good-faith element with respect to the Castillo E-Mail and the Castillo Letter.
d. Resolution
Because we have held that Castillo conclusively proved all elements of official immunity, we further hold that the trial court erred in denying summary judgment on that portion of the defamation claim based on the Castillo E-Mail and the Castillo Letter on the ground of official immunity. We thus sustain that portion of Castillo's sole issue that challenges the denial of summary judgment on Flores's defamation claim based on the Castillo E-Mail and the Castillo Letter.
2. The Four Anonymous Letters and the Anonymous Faculty Petition
Castillo also argues that the trial court erred in denying her motion for summary judgment against Flores's defamation claim that was based on the four Anonymous Letters and the Anonymous Faculty Petition. Specifically, Castillo argues that Flores offered no competent evidence that Castillo authored or published the five anonymous documents.
The Anonymous Faculty Petition stated, among other things, that the "Student Service Department's leaders appear to not function well and as a result they have created problems for the health sciences in the area of admissions, registration and counseling. . . . [T]he Student Services' leaders nod and smile and do whatever they want, regardless of our input. This simply does not work for our students and us." The four Anonymous Letters can be described as follows: (1) one purportedly from an unnamed faculty member to the HCC chancellor and board members, dated May 20, 2003, criticizing Flores's management and actions; (2) one purportedly from unnamed local League of United Latin American Citizens ("LULAC") members, criticizing Flores and her actions; (3) one parodying Flores in the form of a negative evaluation, containing a depiction of her as a monster, and carrying the title, "Faculty Profile on Olga Flores, HCC's Leadership Disaster"; and (4) one purportedly written by unnamed employees of the University of Texas Community College Leadership Program, criticizing Flores.
We reject Castillo's challenge for two reasons.
a. Castillo Did Not Raise This Argument Below as Part of Her Official-Immunity Summary-Judgment Ground
First, because "[s]ummary judgment is a harsh remedy," an appellate court "will strictly construe summary judgment in procedural and substantive matters against the movant." Tanksley v. CitiCapital Commercial Corp., 145 S.W.3d 760, 763 (Tex.App.-Dallas 2004, pet. denied) (citations omitted). Accordingly, "[w]e strictly construe [the movant's] summary judgment grounds." City of Houston v. Aspenwood Apartment Corp., No. 01-97-01378-CV, 2002 WL 89650, at * 3 (Tex.App.-Houston [1st Dist.] Jan. 24, 2002, no pet.) (not designated for publication). We do so because a summary judgment motion "must stand or fall on the grounds expressly presented in the motion." McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 340 (Tex. 1993); accord Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997).
Castillo moved for summary judgment on the ground of official immunity on Flores's defamation claim only to the extent that that claim was based on the Castillo Letter and the Castillo E-Mail. Castillo's official-immunity ground attacking defamation was expressly limited only to those two defamation allegations. Castillo did not urge her official-immunity summary-judgment ground on the defamation claim to the extent that that claim was based on the publication of any other documents. It was only in a totally separate ground in her summary judgment motion — a ground attacking the merits of the defamation claim under rule 166a(i) and not relating to her official-immunity affirmative defense — in which Castillo argued that the defamation claim failed, to the extent that it was based on the four Anonymous Letters and the Anonymous Faculty Petition, because nothing showed that she had written or published these documents. Strictly construing the grounds in Castillo's summary judgment motion, as we must, we conclude that she did not assert official immunity as a defense to Flores's defamation claim to the extent that that claim was based on the four Anonymous Letters and the Anonymous Faculty Petition.
Such a challenge attacks an element of the plaintiff's defamation cause of action. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998) (holding that, to maintain defamation cause of action, plaintiff must prove, among other things, that defendant "published a statement"). Castillo did not alternatively assert, in her summary-judgment motion, that even if she had written or published the five anonymous documents, official immunity would nonetheless protect her from a defamation suit based on those five documents.
Even if we were not bound to construe Castillo's summary-judgment grounds strictly against her, we would still conclude that, under a plain reading of Castillo's motion, she simply did not assert official immunity against the defamation claim to the extent that it was based on the five anonymous documents. In fact, as is discussed below, Castillo's motion could not have asserted this affirmative defense against any incidents of alleged defamation other than the Castillo E-Mail and the Castillo Letter because she denied having authored or published any other documents that formed the basis of Flores's defamation claim.
We note that "Texas law treats each alleged defamatory publication as a single transaction with an independent injury." Tex. Disposal Sys. Landfill, Inc. v. Waste Mgm't Holdings, Inc., No. 03-03-00631-CV, 2005 WL 1489681, at *5 (Tex.App.-Austin June 23, 2005, no pet.); accord Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 394 (Tex.App.-Houston [1st Dist.] 1993, writ dism'd, w.o.j.) ("Each distinct publication of slander inflicts an independent injury from which a slander cause of action may arise."); see Akin v. Santa Clara Land Co., 34 S.W.3d 334, 340 (Tex.App.-San Antonio 2000, pet. denied) (citing this holding in Marshall Field Stores, Inc.). Because each allegedly defamatory publication could give rise to a separate cause of action for defamation, Flores's petition, in effect, asserted seven separate causes of action for defamation — each one based on the publication of a separate document. Accordingly, her summary-judgment motion could assert official immunity as a defense to some of Flores's defamation allegations, while not asserting it against others. This is, in fact, what a plain reading of her motion leads us to conclude that she did.
Accordingly, Castillo may not now urge that the affirmative defense of official immunity applies to this aspect of Flores's defamation claim.
b. We Have No Jurisdiction to Review an Interlocutory Summary-Judgment Order Rendered on a Basis Other Than Official Immunity
Second, to the extent that the order denying summary judgment was based on a ground other than official immunity, we have no subject-matter jurisdiction to review it in this interlocutory appeal. "Generally, we have jurisdiction to hear an appeal from an interlocutory order only if a statute explicitly makes the order appealable." Ahmed v. Shimi Ventures, L.P., 99 S.W.3d 682, 688 (Tex.App.-Houston [1st Dist.] 2003, no pet.). This appeal is from an interlocutory order denying "a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state," which by statute is appealable. Tex. Civ. Prac. Rem. Code Ann. § 51.014(5). "We must strictly construe section 51.014's grant of interlocutory jurisdiction because the Legislature intended it to be a narrow exception to the general rule that only final judgments are appealable." Ahmed, 99 S.W.3d at 688. An interlocutory order denying summary judgment on a basis other than official immunity is not appealable. See id. Therefore, we have no subject-matter jurisdiction to review that portion of the trial court's order denying judgment on the defamation claim that was based on the five anonymous documents, against which Castillo did not assert an official-immunity defense. See id. c. Resolution
We overrule that portion of Castillo's sole issue that challenges the denial of summary judgment on Flores's defamation claim based on the four Anonymous Letters and the Anonymous Faculty Petition.
C. Intentional Infliction of Emotional Distress
In the remainder of her sole issue, Castillo argues that the trial court erred in denying her summary-judgment motion on the basis of official immunity against Flores's claim for IIED.
In Flores's interrogatory answers, which Castillo produced as summary-judgment evidence, Flores described her claim for IIED as follows:
The extreme and outrageous conduct of . . . Castillo . . . is not in discrete incidents, but in the totality of their acts which subjected me to contempt and ridicule and ruined my professional reputation by publication of defamatory statements, and the intentional failure to insure that the defamatory statements were not published outside [HCC], by the day-to-day acts of insult, interference and harassment by Defendant Castillo, . . . in particular the use and abuse by Defendant Castillo . . . of [her] power over me as a subordinate, without providing any effective means for me to respond or defend myself.
In her summary-judgment response, Flores likewise alleged that Castillo engaged in an on-going course of conduct that "included continuous unfounded criticism of [Flores's] work" and in "vicious attack[s] on [Flores's] character and reputation."
This interrogatory answer left intact the following allegations, from Flores's live petition, supporting her claim for IIED:
1. the publication of the seven documents underlying her defamation claim;
2. "communicating with [HCC] officials and others to falsely and unfairly criticize [Flores's] character and performance";
3. "falsely and inaccurately evaluating [Flores's] performance of her duties";
4. "needlessly and maliciously interfering with [Flores's] management of her department and individuals under [Flores's] supervision";
5. "promising [Flores] financial and other support for [her] department and assignments, with the knowledge that the promises would not be kept";
6. "summoning [Flores] to conferences purportedly for college business, but using the conferences solely to harass, interrogate and threaten [Flores]";
7. "arbitrarily countermanding [Flores's] personnel management directives and decisions";
8. "rudely causing [Flores] to be interrupted during [her] public presentations";
9. "perversely mistreating [Flores's] subordinates";
10. "communicating to [Flores's] subordinates and others that [she] is disfavored and that those supporting or associating with [her] will similarly be disfavored";
11. "threatening [Flores] with unfavorable evaluations and other adverse actions";
12. "diminishing [Flores's] authority and scope of discretion in the management of [her] department and the performance of [her] duties";
13. "regularly and continually making [Flores's] daily work harsh and unbearable by other unfair acts of interference, criticism, and obstruction";
14. "manipulating good faith efforts at resolution to further injure and discredit [Flores]"; and
15. "selecting a committee to screen candidates for the Southeast College presidency that [Castillo] . . . knew in advance would not fairly consider [Flores], nor recommend that [she] be considered for the presidency."
As the summary-judgment movant, Castillo had the burden to prove conclusively all elements of her affirmative defense — here, the affirmative defense of official immunity. See Cathey, 900 S.W.2d at 341. To carry that burden, Castillo had to prove conclusively, among other things, that she acted in objective good faith in doing the actions alleged in Flores's petition to constitute IIED. See id.; see also Telthorster, 92 S.W.3d at 461. To prove objective good faith conclusively, Castillo had to prove that a reasonably prudent official, under the same or similar circumstances, could have believed that her complained-of conduct was justified based on the information that she possessed at the time. See Joe, 145 S.W.3d at 164.
Although Castillo's summary-judgment evidence at least partially addressed the good-faith element with respect to two of the actions that Flores's live petition alleged constituted IIED, Castillo simply failed to present any such evidence with respect to the majority of the actions alleged to have constituted IIED. Castillo's was a traditional summary-judgment motion, and the burden was thus entirely on her to show her entitlement to official immunity on the IIED claim as pleaded by Flores. See Cathey, 900 S.W.2d at 341. Castillo failed to do this. Castillo's summary-judgment affidavit did state that "all of the actions that I took with respect to [Flores] in my supervisory capacity over her were taken in good faith" and "were based on my assessment of the needs of the college and what I reasonably believed to be the prudent course of action to meet those needs." However, those statements are either conclusory, and thus cannot support summary judgment as a matter of law, or concerned her subjective belief of the prudent course of action, which is not the test for official-immunity good faith.
For example, Castillo's summary-judgment evidence addressed the good-faith element with respect to the Castillo E-Mail and the Castillo Letter (part of allegation 1, listed above) and Castillo's evaluation of Flores (allegation 3, listed above).
See Marshall v. Sackett, 907 S.W.2d 925, 933 (Tex.App.-Houston [1st Dist.] 1995, no writ) ("Marshall stated in her affidavit that she acted in good faith and as a reasonably prudent program director would have acted under similar circumstances. This statement, by itself, is insufficient to support the defendants' contention that Marshall acted in good faith. Summary judgment may be based upon the uncontroverted testimonial evidence of an interested witness only if the evidence is clear, positive and direct, otherwise credible and free from inconsistencies, and could have been readily controverted."); see also Tex. R. Civ. P. 166a(c); cf. Wadewitz v. Montgomery, 951 S.W.2d 464, 466-67 (Tex. 1997) ("Conclusory statements by an expert [there, on good-faith element of official immunity] are insufficient to support or defeat summary judgment.").
See, e.g., Ballantyne, 144 S.W.3d at 427 ("We have consistently held that probative evidence on the issue of good faith is limited to objective evidence."); Tretta, 180 S.W.3d at 276.
Accordingly, we hold that the trial court did not err in denying summary judgment on Castillo's official-immunity defense to Flores's IIED claim because Castillo did not conclusively prove the good-faith element and, thus, the affirmative defense.
Conclusion
"If the error affects part of, but not all, the matter in controversy and that part is separable without unfairness to the parties, the judgment must be reversed and a new trial ordered only as to the part affected by the error." Tex.R.App.P. 44.1(b). Because "Texas law treats each alleged defamatory publication as a single transaction with an independent injury," and because Flores alleged seven separate incidents of defamation — each of which allegations appears separable without unfairness to the parties, and on only some of which allegations the trial should have rendered summary judgment — we conclude that this is one of the situations in which rule 44.1(b) requires that the judgment be reversed in part. See id. (making above-referenced disposition mandatory, with certain exceptions inapplicable here, if error affecting part of controversy is separable without unfairness to parties). This Court has done so before in an appeal from a summary judgment asserting, among other grounds, official immunity as a defense to a defamation claim based on separate defamatory statements. See Perry v. Greanias, 95 S.W.3d 683, 692, 699, 700-01, 702 (Tex.App.-Houston [1st Dist.] 2002, pet. denied); see also Woodland v. Wisdom, 975 S.W.2d 712, 717 (Tex.App.-Texarkana 1998, no pet.) (reversing partition judgment only as to its partition of certain assets, based on affirmative defense relating only to those assets, and affirming judgment as to its partition of other assets, to which affirmative defense did not apply). Moreover, this is how the parties litigated the defamation claim in their summary-judgment pleadings below: both treated the defamation claim based on the Castillo E-Mail and the Castillo Letter differently from how they treated the defamation claim based on the five anonymous letters — understandably, too, because Castillo asserted official immunity as a summary-judgment ground only as to the former, not as to the latter.
Tex. Disposal Sys. Landfill, Inc. v. Waste Mgm't Holdings, Inc., No. 03-03-00631-CV, 2005 WL 1489681, at *5 (Tex.App.-Austin June 23, 2005, no pet.); accord Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 394 (Tex.App.-Houston [1st Dist.] 1993, writ dism'd, w.o.j.).
Accordingly, we reverse that portion of the trial court's order denying summary judgment on the basis of official immunity on Flores's claim for defamation, but only to the extent that that claim was based on the Castillo Letter and the Castillo E-Mail. We affirm that portion of the order denying summary judgment on the remainder of Flores's defamation claim and on her IIED claim against Castillo. We further remand the cause with instructions to grant Castillo's summary judgment motion on that portion of Flores's defamation claim based on the Castillo Letter and the Castillo E-Mail.
We express no opinion on the admissibility of the Castillo E-Mail and the Castillo Letter into evidence upon remand.