COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00175-CV

LYNDA W. TOMLINSON AND 

HUSBAND DAVID TOMLINSON

APPELLANTS

V.

JOHN MCCOMAS, CYNTHIA 

―CISSY‖ WILSON, MARVIN 

JENSEN, TOM ROMAN, AND MIKE 

ROBINIUS

APPELLEES

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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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MEMORANDUM OPINION1

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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 

 

1See 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 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 
3

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 
4

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 

 

2Appellees 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.‖
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 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 
6

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 
7

―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 
8

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. WFAATV, 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.—
9

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.
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 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, 

 

3We 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.
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 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 
12

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 
13

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 
14

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 
15

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.‖ 
16

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 
17

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 
18

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.