A Texas state appeals court reversed the ruling of a trial court, giving new life to the claim of a former college track coach, who sued his former employer and several individual defendants, including the athletic director, for slander and conspiracy.
In dealing a setback to Southwestern Christian College (SCC), the court found that the defendants failed to provide the requisite evidence to secure a summary judgment ruling.
Gid Porter was the head track coach at SCC. Herbert Evans was the college’s athletic director and Porter’s supervisor. Jack Evans, 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 SCC’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 SCC’s program. Herbert acknowledges that he did not respond to the audit request. He said 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 SCC 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. The defendants moved for both 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 appealed.
The appeals court first examined the common law respondeat superior, which renders an employer vicariously liable for the tortious conduct of an employee acting within the scope of his employment, even though the employer has not personally committed a wrong. See Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998).
The defendants’ no-evidence summary judgment motion did not challenge Porter’s ability to prove that Herbert and Jack acted in the course and scope of their employment as the law requires. Nor did their 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,” wrote the appeals court, necessitating the reversal of the trial court’s ruling.
Turning to the slander claim, the court noted that the defendants made four challenges:
“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 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. 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.)
Gid Porter v. Southwestern Christian College, Jack Evans, and Herbert Evans; Ct. App. Tex., 5th Dist.; No. 05-12-01737-CV, 2014 Tex. App. LEXIS 3713; 4/7/14
Attorneys of Record: (for appellants) David C. Cowden, The Law Offices of David C. Cowden, P.C., Fort Worth, TX. (for appellees) Buena Vista Lyons, Allyn Jaqua Lowell, Ford & Harrison LLP, Dallas, TX.
