## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 11 - 00175 - CV

LYNDA W. TOMLINSON A ND HUSBAND DAVID TOMLIN SON APPELLANTS

V. JOHN MCCOMAS, CYNTHI A

― CISSY ‖ WILSON, MARVIN JENSEN, TOM ROMAN, A ND MIKE ROBINIUS APPELLEES

---------- F ROM THE 355TH DISTRICT COURT OF HOOD COUNTY

---------- 

### MEMORANDUM OPINION 1

---------- I. I NTRODUCTION 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. 47.4.2

damages from allegedly defamatory statements made at a homeowners’ association meeting

. The trial court granted summary judgment for App ellees and denied the Tomlinson s ’ motion for partial summary judgment. In a single issue on appeal , the Tomlinsons argue that the trial court erred by granting summary judgment f or Appellees and by denying the Tomlinsons’ motion for partial summary judgment. We will affirm.

II. F ACTUAL AND P ROCEDURAL B AC KGROUND 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 part ies to th is appeal as the Anthony G roup, sued PPOA over the collection of road impact fees. In February 2009 , PPOA’s board of directors met to discuss a proposed settlement o f the Anthony Group’s lawsuit. At the time of that meeting , Bob Lowrey, Jr. serv ed as president ; Lynda Tomlinson served as treasurer ; and McComas and Wilson served as director s 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 vote d aga inst 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 mig ht have existed between Lowrey and PPOA at the time PPOA’s board voted to approve3

the settlement of the Anthony Group lawsuit, PPOA’s directors asked PPOA’s attorney about the propriety of the settlement agreement and r equested guidance

on the proper cours e of conduct. PPOA’s attorney responded with a letter,

se t t ing forth several options , including having a discussion with Lowrey, but
not ing that there was no ―blue print for conduct in this regard‖ and advising that PPOA’s board members should ―exercis e t heir independent judgment.‖ Lynda emailed the letter from PPOA’s attorney to PPOA’s board members

. Her email a sked whether the matter with Lowrey had been adequately addressed and questioned whet her further review was needed. Lynda asked PPOA’s board

m embers 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

a ddressed. During the fall of 2009 , PPOA board members expresse d concerns about Lynda’s leadership of PPOA. Appellee s called for a special meeting of PPOA’s board of directors on October 5, 2009, and the meeting was open to the p ublic. The special meeting was also recorded for replay on the local community television station. At the special meeting, McComas stated tha t a group of directors had asked Lynda to step down as PPOA’s president and made a made a motion that4

she resign from the presidency but not from the board. The motion was seconded. Lynda repeated the moti on and called for discussion. One board member v oiced 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 v ote was called , and McComas s aid that he had prepared a statement . McComas then read his statement out loud . The complained

- of portions of M cComas’s statement , as transcribed by PPOA, are set forth in italics below : The Road Impact Fee lawsuit was negotiate d 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 Ju dge [’] 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 lim it 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 d amage. 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 us ed in their original petition. The Tomlinsons changed the phra se to ―ill minded‖ in their amended petition, and PPOA’s transcription of the meetin g uses the term ―ill

- minded.‖5

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 goi ng. [Emphasis added to show portion s complained of.] After McComas read his statement and other P POA board members made
statements , Lynda ca lled 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 preside nt was made and seconded; this time, the motion pass ed by a vote of five to three. The Tomlinsons subsequently filed a defamation suit against Appellees based on the statement that McCo mas 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 statement s that Lynda’s ― ill

- minded rejection ‖ of all requests made to he r concerning a negotiated settlement of a lawsuit by the board of PPOA of which Lynda was only one of nine membe rs who voted with six other members to two to accept the settlement, ―not only caused PPOA serious money, thousands and possibly millions of dol lars,‖ 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 membe rship.‖ The Tomlinsons contend that the above statement s are defamatory because ―they have injured Lynda’s reputation, exposing her to public hatred, contempt6

and ridicule impeaching her hones ty, integrity and reputation.‖ The Tomlinsons pleaded that th e statement s w ere made with actual malice; that Lynda was damaged by the defamatory statement s because ―she has been caused mental anguish requiring professional treatment‖; and that as a result of the mental anguish, her husband ha d suf fered loss of co nso rtium. 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 judgmen t 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. S UMMARY J UDGMENT FOR A PPELLEES AND A GAINST

THE T OMLINSONS W AS P ROPER In their s ole 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. T he 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, thousan ds and possibly millions of dollars‖ and his statement that Lynda’s actions were7

―unethical[,] . . . and in direct conflict of interest of the best interest of our membership.‖ A. Sum mary 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 B ank 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 judgm ent, 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.

— Dal las 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). ―Defamati on‖ 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 the8

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 20 11 ). Although ― s lander‖ 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 M k ts, Inc. v. Johnson , 891 S.W.2d 640, 646 (Tex. 19 95)

. To prevail on a defamation cause of action, the plaintiff must prove that the defendant (1) published a statement, (2) that was defa matory concerning the plaintiff , (3) while acting with actual malice regarding the truth of the statement where the pl aintiff 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, p et. 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 disre gard 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 I s Capable of Defamatory Meaning

I s a Question of Law
W hether a statement is capable of a defa matory meaning is a question of law

. See Fort Worth Star

- Telegram v. Street , 61 S.W.3d 704, 708 (Tex. App.

—9

Fort Worth 2001, pet. denied) (citing Musser v. Smith Protective Servs., Inc. , 723 S.W.2d 653, 655 (Tex. 1987)). We must view t he statements allege d 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 p et.). S tatements alleged to be defamatory must be viewed in their context; they m ay 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 c ommunication , n ot mere isolated sentences or portions. Musser , 723 S.W.2d at 655. P urely 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, sect ion 8 of the Texas Constitution ‖)

. This is particularly so when the facts underlying an opinion are set out in the publication itself, thereby a llowing the listener to evalu ate the facts and either accept or rej e ct the opinion. Brewer , 986 S.W.2d at 643

. Instead, to be a ctionable as defamation, a statement must be an assertion of verifiable fact, that is, a statement that purports to be verifiable. Bentley , 94 S.W.3 d at 583

– 84

.10 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 no t 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 liste n 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. Bartholo mew 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 Bo ard 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 Boa rd 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 t hat are put upon us by the Bylaws. It has come to ou t 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 exactl y as it appears in PPOA’s unofficial transcription of the special meeting that is in the record before us.11

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 thi ngs 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 l ast 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 lead ership 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 Presid ent. 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 h er . . . 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 underli ned 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 gentlem an everything but being ????instrickible. This ill minde d rejection of all the requests not only cost PPOA serious money, thousands and12

possibly millions of dollars, but it eliminates our ability to limit Anthony Groups’ truck weight limits unless they ar e 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 ; unet hical, 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 busines s. 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 C ommun ications 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. Conce rn 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 pr esenting 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 h earing and based on the advi s e of an Anthony Group employee and she touched again wit h 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 Anthony13

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 involve d 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 ha rming 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, Co mmittee 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 i nteraction 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 meeting s policy in the LENMO Agre ement. 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 communic ated 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 me etings 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 requ irements. 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; the14

officers, the board members and management of the Corporation w ill 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 ev ery 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 responsi ble 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 approve d 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. Al l 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 mus t 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 sala ries 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 th ese 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 dilem ma we15

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 the se issues. I thank you again. [Emphasis added to show portion s complained of.] After viewing the two specific complained

- of statements in the context of McComas’s entire statement, and considering the forum in which Mc Comas read his statement

— a t a sp ecially

- 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, ―Mada m President’s action s were in des cription [ : ] unethical, unprofessional, and in direct conflict of interest of the best interest of our membership ‖ and noted that ―[t]he policy in this memb ership/Association is that it wi ll be the policy of PPOA to maintain the high est 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. ‖16

The two statements by McComas that the T omlinsons allege are defamatory simply express McComas’s opinion s –– n either statement constitutes the assertion of a verifiable fact or purport s 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 ―profit eering‖ 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 acc using 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 hom eowners 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 plaintiff17

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 i n 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 list en er hearing McComas’s statement and the two complained

- of opinions contained in the st atement would be able to hear and to evaluate the facts on which McComas based his opinions and either accept or rej e ct the opinion s

. See id

. Based on the facts given in McComas’s statement, the persons hearing it or reading it could easily decide for th emselves 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 expr essed by McComas and complained of by the Tomlinsons are not actionable as defamatory statement s as a matter of law , Appellees conclusively negated an essent ial element of the Tomlinsons’ defamation claim. Accordingly, we hold that the trial court did not err by granting Appellees’ motion fo r 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 a18

Inc., 109 S.W.3d at 854

– 55 (holding summary judgment for defendant proper because the complained

- of statements were not defamatory as a matte r 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 sn eaky snake is here,‖ were not defamatory as a matter of law). We overrule the Tomlinsons’ sole issue.
I V

. C ONCLUSION Having overruled the Tomlinsons’ sole issue, we affirm the trial court’s judgment. SUE WALKER JUSTICE
PANEL: DAUPHINOT, WALKER, and M EIER, JJ. DELIVERED: November 17, 2011

matter of law and therefor e cannot be grounds for holding the remaining Appellees liable.