Lynda W. Tomlinson and Husband David Tomlinson v. John McComas, Cynthia \"Cissy\" Wilson, Marvin Jensen, Tom Roman, and Mike Robinius ( 2011 )

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
----------
FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
----------
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
17
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.
18