Having more than one athletic department administrator communicate with a coach about the renewal or non-renewal of the coach’s contract is a recipe for disaster.
Just witness the litigation bubbling in the Texas court system, where Baylor University’s former volleyball coach picked up a legal victory last month after a panel of judges there sided with the coach in an appeal from a summary judgment ruling.
The coach, Tom Sonnichsen, sued the university after it declined to renew his contract after the 1995 season.
Sonnichsen was hired by the university in 1989. At the time, all Baylor coaches, other than the football and the men’s basketball coach, had oral, one-year contracts. The AD at the time, Bill Menefee, told Sonnichsen that he “would be able to retire” at Baylor if he ran a “clean” program and treated his players appropriately. Menefee’s successor, Dr. Richard Ellis, made similar representations, with one caveat: If and when Baylor joined the Big 12, which the school did in 1996, Dr. Ellis told Sonnichsen that the coaches that it would be imperative for them to strengthen and develop their programs to be competitive in the new conference and that winning would be important.
To accomplish that, the coach set out to strengthen his schedule. He discussed his strategy with both Ellis and Sonnichsens’s immediate supervisor Jeanne Nowlin, allegedly getting buy-in from the two. As expected the team’s record waned.
On a parallel course, Baylor’s general counsel, Basil Thomson, advised the head coaches (other than the head football and men’s basketball coaches) that they would be receiving written contracts as part of Baylor’s effort to resolve a Title IX complaint regarding disparities between its men’s and women’s athletic programs. Specifically, no coach in a women’s athletic program had a written contract.
When Nowlin gave the plaintiff his written evaluation in the fall of 1995, Nowlin told Sonnichsen that the “contracts were coming.” On November 13, as the season was winding down, she told him that the contracts were being revised.
However, Nowlin was saying something entirely different to the school’s new President, Dr. Robert Sloan, recommending that Sonnichsen’s employment be terminated on or before December 13. Sixteen days later, she summoned Sonnichsen for a meeting and advised him that his employment was being terminated because of his team’s losing records in 1994 and 1995.
Procedural History
Sonnichsen sued in December 1997, alleging fraud and breach of contract. Baylor sought summary judgment, primarily on the ground that both claims were barred by the statute of frauds. Sonnichsen asserted the counter-defense of promissory estoppel. The trial court granted summary judgment in Baylor’s favor, and Sonnichsen appealed. The appeals court affirmed the judgment as to Sonnichsen’s contract claim, reversed it as to the fraud claim, and remanded the case to the trial court for further proceedings. Sonnichsen v. Baylor Univ., 47 S.W.3d 122, 127 (Tex. App.–Waco 2001, no pet.).
On remand, Baylor filed a no-evidence summary judgment motion challenging three elements of Sonnichsen’s fraud claim. Sonnichsen filed a response to the summary judgment motion with supporting evidence and simultaneously filed an amended petition adding a claim for breach of his “contract of employment,” including his “contract rights created by [Baylor’s] representations and [by] the terms of the 1995-96 written contract,” which was never delivered to him.
Baylor responded to the amended petition with an amended answer and special exceptions. Baylor specially excepted to the amended contract claim on the grounds that it “is a violation of the doctrines of the law of the case, estoppel, and res judicata.” The trial court granted the summary judgment motion, sustained the special exceptions, and rendered a take-nothing judgment.
The Appeal
Sonnichsen argued on appeal that the trial court erred by granting Baylor’s no-evidence summary judgment motion because he presented some evidence that: (1) Baylor representatives made false representations with knowledge of their falsity or made them recklessly without any knowledge of the truth; (2) the representations were made with the intent that they be acted upon; and (3) that he suffered compensable damages because of his reliance on the representations.
The court agreed with the plaintiff’s first claim: “Given the evidence of Nowlin’s and Dr. Ellis’s prior statements, Thomson’s prior statements, and Nowlin’s status as his immediate supervisor, Nowlin’s statement that his contract was being revised and her failure to even suggest that his continued employment was under review collectively constitute some probative evidence of an actionable misrepresentation. See Bradford v. Vento, 48 S.W.3d 749, 755, 44 Tex. Sup. Ct. J. 655 (Tex. 2001) (failure to disclose can be actionable when there is a duty to speak).”
The court also found “probative evidence of fraudulent intent,” pointing to “the actions Baylor’s representatives took after Thomson’s statement, specifically during the course of the 1995 volleyball season and immediately thereafter.
Finally, the court agreed that there had been some compensable damages, such as the lost revenue from the 1996 volleyball camps
The court also found that the trial court abused its discretion by sustaining Baylor’s special exceptions. “None of the grounds asserted in Baylor’s special exceptions support the court’s decision to sustain them,” it wrote.
Chief Justice Tom Gray did dissent from the majority, writing that “evidence presented by Sonnichsen for his damages is of precisely the same damages that he sought to recover for breach of contract. We rejected his breach of contract claim because it did not comply with the statute of frauds. Sonnichsen has failed to show any difference between the damages sought and recoverable under the rejected contract claim and those sought and recoverable under his fraud claim,” he wrote. Sonnichsen v. Baylor University, Ct. App. Tx. 10th Dist., No. 10-02-00125-CV, 8/25/04
