### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00243- CV

Dennis Fr eiheit, Appellant

v. Tif fan y Stub bin gs and TEKSystem s, Inc., Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 345 TH JUDICI AL DISTRICT NO. D-1 -GN-1 0-0 0281 7, H ONO RAB LE STEP HEN Y ELENOSK Y , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant Dennis Fr eiheit appeal s from a summary judgme nt g rante d in favor of appellee s Tiffa

ny Stubbings and TEKSy stems, I nc., on Fr eiheit’s defa mation claims. For the

rea sons set forth below, w e af firm the district cour

t’s judgme nt. Background I n late 2009, Fr eiheit bega n working for the Texas Depa rtment of P u b l i c S af

et y as

an independe nt contra ctor throug h Titan Soluti ons, I nc., an information-t e c h n o lo g y s ta f f ing firm that contra cted with DPS to develop softwar e for that ag ency . Stubbings, who wa s an em p l oy ee of a differ ent information technolog y staffing firm that also contra cted with DPS, TEKSy stems, worke d on the same D PS s oftwar e proje ct as F reihe it. Titan fired F reihe it in J une 2010.

Be lieving that he had been fired beca use Stubbings had made fa l se and “der og atory

” statem en t s about him to DPS manag ement, Fr eiheit filed this suit asser ting claimsfor “def

amation/slander” and defa mation per se. Fr eiheit alleg ed that Stubbings had told DPS that

1 (1) “[Fre iheit] made insulting r emar ks conce rning Def

endant Stubbings’ immigra nt husband” a

nd (2) “[Fre iheit] ref

used to w ork with f

oreig n individuals who did not spe ak perf ect Eng lish.” After discovery by both parties, Stubbings and TEKSy stems filed a traditional and no-evide nce motion for summary judgme nt challeng ing Fr eiheit’s defa mation claims on various g rounds, including that the statements wer e not capa

ble of a defa

matory meaning and, even if they wer e capa ble of a defa

matory meaning , the statements wer e true. The district court g rante d the motion wit h o u t s p ec i fy ing the g rounds and dismissed Fr eiheit’s ca se. I t is from this final judgment that F reihe it now appea ls.

Stand ard of review The standards for revie wing a motion for summary judgm ent are well established: the movant for summary judgme nt has the burden of showing that no g enuine issue of materia l fac t exis ts and that he is entitled to judgme nt as a matter of law; (2) in deciding whether t h er e i s a disputed material f

act issue pr ecluding summary judgme nt, evidence favor able to the non- movant will be taken as true; and (3) ever y rea sonable infere nce must be indulge d in favor of the non-movant and any doubts resolved in the non-movant’s favor

. Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W .2d 546, 548-49 (Tex. 1985) ; see Tex. R. Civ. P. 166a(c ). When, a s here , the district c ourt’s order g ranting summary judgme nt does not specify the g round or g rounds reli ed o n for the ruling , we may aff irm the s ummary judgme nt if any of t he grounds advance d by the m ovant are m eritorious. See

Fr eiheit also asser

ted claims for tortious interfe renc e with an exis ting contra ct and tortious 1 interfe renc e with prospec tive business rela tions, but these claims wer e dismiss ed by the district court in an ea rlier summary

judgme nt that Fre iheit does not challeng e. 2Merriman v. XTO Energy , In c. , 407 S.W .3d 244, 248 (Tex. 2013); State Farm Fire & Cas. Co.

v. S.S. , 858 S.W .2d 374, 380 (Tex. 1993). Analysis

As best we can construe Fr eiheit’s briefing , he challeng es t h e d istrict court’s g rant of summary judgme nt in two issues. First, he arg ues that t h e al leg ed statements made by Stubbings—i.e., that Fr eiheit insulted her immigra nt hu s b an d an d t hat Fr eiheit said he would not work with fore igne rs who did not speak perf ect Eng lish—are defa

matory as a matter of law. I n the second, Fre ihei t ar gu es that the s ummary -judg ment evidenc e presented to the di strict court raised questions of fac t that prec lude summary judgme nt. 2

Defam atory m eaning

The initial question for deter mination in a d ef

amation suit is whether the words used are rea sonably capa ble of a defa

matory meaning

. Musser v. Smith Protective Servs., Inc. , 723 S.W .2d 653, 654–55 (Tex. 1987). A statement i s d ef am at o ry if it tends to injure a person’ s reputa tion “and there by expose the person to public hatre d, contempt or ridicule, or financ ial injury

or to impeach that person’ s honesty , integ rity , virtue, or reputa tion.” Tex. Civ. Prac. & Rem. Code § 7 3

. 0 0 1 (desc ribing libel); Means v. ABCABCO, Inc. , 315 S.W .3d 209, 214 (Tex. App.—Austin

Fr eiheit also arg ues, in what he char acte rizes as a second issue, that the district court 2 misapplied the “sham aff

idavit” doctrine in deciding the motion for summary judgme nt. Howeve r, in addition to the fac t that the district court did not specify the g rounds on which it relied, we would note that whether Fr eiheit’s aff idavit is a “sham aff

idavit”—i.e., whether it raises a question of fac t to defe at summary judgme nt—and its eff ect here is a matter subsumed within our deter mination of whether any issues of mater ial fac t exi st to preclude summar y judgme nt. 32010, no pet.); see Hancoc k v. Variyam , 400 S.W .3d 59, 62 (Tex. 2 0 1 3 ) (desc ribing defa matory statement as one that “tends to injure a person’ s reputa tion”); Restatement (Second) of Torts § 559 (1977) (“A communication is defa matory if it tends so to h ar m t h e re p u t ation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.”). Whether a sta tement is defamatory is a question of law tha t we review de novo. See Hancoc k , 400 S.W .3d at 66 (citing Musser , 723 S.W .2d at 654–55 (noting that “the initial question for determination is a question of law to be decide d by the trial court: wer e the words used

rea sonably capa

ble of defa

mat o ry m ea n ing” )). I n doing so, the “alleg edly libelous statements must be construed as a whole, in light of s u rr o u n d i n g circ umstances based upon how a person of ordinary intelligenc e would perc eive the entire statement.” Carr v. Brasher , 776 S.W .2d 567, 570 (Tex. 1989); id.

Acc ording to Fr eiheit’s li v e p le a d in g a n d h is s u mm a r y - judgme nt evidenc e, Stubbings told DPS manag ement that—

• Fr eiheit “insulted Stubbings’s im m i gra nt husband” by asking about the husband’s

immigra tion status and, upon lear ning that he was still a Br itish citizen, asking if she knew he r husband c ould be depor ted; and

• Fr eiheit “re fused to work with fore ign individuals who did not speak perf ect Eng lish.”

Fr eiheit maintains that the above statements are defa mat o ry beca

use they imply that Fr eiheit does not g et along with co-w orker s; that he is biased ag ainst “for eig ners” ; that he will not work with “immigr ant” c o-worke rs; and that he is a rac ist.

4Construing these statements as a whole in light of the surrounding circ umstances, see

Musser , 723 S.W .2d at 655, an ordinary person would think that F reihe it believes that immigra nts to this country who do not become natura liz ed risk possible deporta tion. They would also think that Fr eiheit does not like to work with people who have strong acc ents, probably beca use he has trouble understanding them, but possibly beca use he only works with people who speak “per fec t Eng lish.” But a person of ordinary intelligenc e would have no rea son to think, based on these statements alone and without making further infere nces outside the surrounding circ umstances, tha t F r e ih e it is a r a c is t, opposed to immigra tion, biased ag ainst fore igne rs, or that he does not g et along with co-wor kers. First, there is nothing in the statements reg arding rac e. There is nothing that sug g ests that Fr eiheit’s comment is rac e based or n at i o n al -o ri gin based. L ikewise, there is nothing in the statements that sug g ests that Fr eiheit is anti-immigration. The statements could be under stood by

a person of ordinary in t el l i gen ce t o mean just the opposite, in fac t, as urg ing natura liz ation and pref err ing lang uag e assimilation. Whil e Fr eiheit may have drawn unflattering , abusive, annoying, i rk s o m e, o r even embar

rassing infere nces from the one statement beca use it sug g ests that he will

n ot work with any one who does not speak “per fec t Eng lish,” it does not rise to the level of b ei n g “der og atory , deg rading , and somewhat shocking and contain ‘element[s ] of persona l disgr ace .’” Means , 315 S.W .3d at 214 (quoting 1 Robert D. Sack, Sack on Defamation 2–17 (3d ed. 2009) quoting W. Pag e Kee ton, et al., Prosser & Kee ton on the L aw of Torts § 111 (5th ed.1984))

. Fur ther, the statements do not char g e Fr eiheit with a crime, violation of any law, or of any unethical acts. See Musser , 723 S.W .2d at 655. They do not impugn his honesty , integ rity , virtue, or reputa tion. See T ex . C i v . P ra c. & Rem. Code § 73.001 (desc ribing libel); Means , 315 S.W .3d at 214. At most,

5a person of ordinary intelligenc e is likely to think, afte r d i s re gar d i n g at least an element of the

comment as hy

perbole g iven that there is no such thing as “per fec t Eng lish,” that Fr eiheit is frustra ted by

people who ha

ve ac cents diff

ere nt from his own. W e overr ule Fr eiheit’s first issue. Having deter mined that the district co u rt ’s summary judgme nt dismiss ing Fr eiheit’s claims was proper on at least one of the g rounds asser ted in the motion for summary judgme nt, we need not addre ss Fr eiheit’s rema ining issues. See Merriman , 407 S.W .3d at 248; C.W

. 100 Louis Henna, Ltd. v. El Chico Restaurants of Texas, L.P. , 295 S.W .3d 748, 757 (Tex. App.—Austin 2009, no pet.).

Conclusion We affir m the district court’s judg ment.

__________________________________________ J eff Rose, J ustice Be fore Chief J ustice Jones, J ustices Rose and Goodw in Affir med Filed: De cembe r 31, 2014

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