Stephan L. Honore v. James M. Douglas
833 F.2d 565
5th Cir.
1987
Check Treatment

*1 are “created the execution of the trust instrument ..La.Rev.Stat.Ann. Stephan HONORE, L. (West 1964). 9:1822 Judy When the Trust Plaintiff-Appellant, instrument was purport- executed

ing to create a trust class divisible into DOUGLAS, al., James M. et separate trusts beneficiary each Defendants-Appellees. there were in the future more than one beneficiary, only grandchild, David, one No. 87-2484 being was in and ascertainable. The other Summary Calendar. grandchildren, purported two benefi- United States Court Appeals, separate trusts, ciaries were not. Fifth Circuit. Therefore, think, attempt we to create separate trusts must fail for want of a Dec. beneficiary. separate trusts suppos- edly by created the J.D. Children Trust

instrument fail for the same reason. Ac- Robertson,

cord Interesting Some Fea- Proposed Code, tures Trust 24 La. L. Rev. Succession cf. 359 So.2d

Burgess, (La.Ct.App.)

(separate testamentary trusts for benefit “grandchildren living at the my time of

passing” did not fail for want of benefi-

ciaries), denied, (La. writ 360 So.2d 1178

1978).1 trusts,

The class being an exception

to Louisiana Revised Statute do not

fail. (West Louisiana Revised Statute 1891

1964) allows for the creation of a class

trust if one member of the being. class is in grandchild

Since a beneficiary of both the

Judy Trust and the J.D. Children Trust was being when the instruments were exe-

cuted, both class trusts are valid. La. See (West 1964) (“A 9:1753

Rev.Stat.Ann. trust given

instrument shall be interpretation an

that will sustain the effectiveness of its

provisions if the trust suscep- instrument is

tible of interpretation.”). such

AFFIRMED. ment, 1. Form 104 of the separate Louisiana Trust Handbook three from a trusts class support Rubin, contrary does result. Form trust. J. Rubin & A. Louisiana Trust creates three class in the trusts same instru- Handbook *2 POLITZ, JOHNSON,

Before HIGGINBOTHAM, Judges. Circuit POLITZ, Judge: Circuit Stephan appeals L. Honoré an adverse summary judgment, rejecting his claims employment that the termination of his as Thurgood a member of the Marshall School of Law of Texas Southern (TSU) University violated his due rights. and first amendment For the rea- assigned sons we vacate and remand.
Background employed assistant, Honoré was as an associate, professor then by TSU May from June 1974 until Af- serving ter years, four academic 1974- granted Honoré was three consecu- one-year tive leaves of absence to serve Corps. the Peace He returned to full-time teaching 1981, continuing until de- TSU grant clined to tenure status and terminat- ed him years three later.

In 1981when Honoré returned to the law school after service with Corps, the Peace the Rank and Tenure Committee of the law promoted recommended that he be professor to associate recognized as tenure, having years based on his four years and three of authorized leave. When Honoré employed was first 1974, controlling University regulations provided for tenure at the end of seven years. The record regu- indicates that this lation interpreted being self-effec- dispute tive and automatic. There was a period whether a of authorized leave would promoted, accruable time. Honoré was regents but the TSU did not extend tenure. Because Honoré was then a member of the Committee, Rank and Tenure he main- tained that he chose not to contest disputed question at that time. Lopez, Lopez David T. David T. & Asso- ciates, Houston, Tex., plaintiff-appel- In 1978 University affecting lant. changed tenure were provi- to delete the allowing vesting sion of tenure Mattox, Gen., Atty. Bright, Jim Lou years’ provisions after seven service. The Gen., Austin, Tex., Atty. Asst. for defend- require of the 1978 manual the law school ants-appellees. university representatives to address a petition initially, for tenure With the Board Regents retaining ultimate decisional au- summary judgment, found require motion further provisions thority. Those fact, genuine issue of material and con- faculty mem- no nontenured notification were entitled to that defendants cluded probationary the sixth ber, May 31 of by ap- as a matter of law. Honoré final year will be that the seventh year, peals. employment unless year sought and secured. *3 Analysis 1983, of the the dean February On litigation by terminate may The court next the Honoré that notified law school rendering summary judgment where no a he unless became his last would be year material fact exists and genuine issue of he Insisting that had tenured. moving is entitled to party the Honoré regulations, the 1974 under 56(c). Fed.R.Civ.P. Bor matter of law. a status. of confirmation that sought formal Cir.1986); Block, (5th F.2d 468 810 delon Tenure Committee faculty Rank and The Corp., American v. Precision Galindo The unanimously recommended (5th Cir.1985). moving Once the F.2d tenure, and the objected Honore’s dean to showing, negating initial party makes the application. rejected the Regents Board of fact, party op- disputed, the material hearing faculty by a sought review Honoré motion must offer evidence posed to the testimony received sworn which committee or more reflecting of one the existence evidence, including the documentary and fact. of material Fed.R.Civ. genuine issues Honoré, dean, the former the testimony of Catrett, 56(e); Corp. v. Celotex P. had university who the legal counsel for (1986). 2548, 91 L.Ed.2d 265 issue, as regulations at the 1978 drafted pleadings of the will allegations The bare faculty the ten- as other members well Ari- suffice. First National Bank hearing com- faculty of 253, ure committee. Co., v. Cities Service U.S. zona grant- that Honoré be recommended mittee reject- was Its recommendation ed tenure. and ed, however, president by the TSU response in specific no Honoré made regents. motion, but to defendants’ opposition various admissions following previously offered his had reflects that The record of the parties transcript the assignment, and Corps from Peace the return before the facul testimony arguments and school vocal in law active and Honoré Summary judgment hearing ty in a committee. affairs; directly involved and he was evidence inappropriate the disposition Prior to the dean. disputes with number whole, court, could as a the viewed February 1983 the before the about time and findings and con lead to different letter, protested Honoré had tenure-notice of the trial function It is not the dean, let- clusions. signed grievance by the actions ruling a motion for meeting judge, on ters, in a of 18 participated evidence, credi assess judgment, weigh to faculty where the 22 members the the most reasonable bility, or determine a of confi- including expressed lack from the evidence. to be drawn inference The other six abstained in the dean. dence fact. the trier of are functions controversy Those Among items of voting. from Inc., Lobby, Liberty policy, the Anderson admissions the were L.Ed.2d 202 administra- population, the student size Supply, v. Dixie Well Service & to budget, and failure Leonard the of the school tion Cir.1987)(“The Inc., F.2d exami- the Texas bar certify graduates for however, not, approved Supreme Court has timely in a fashion. nation that rest summary judgments peti- Following rejection of his the reminds the Court ... determinations [and] seeking tion, instant suit Honoré filed invade the role judges to district relief, alleging due monetary equitable and jury.”). violations, and first amendment using rules these appeal consider the Shortly pri- We claims. pendent state-law uncer- resolving all factual guidance, matter the court considered to trial or making tainties and all inferenc- disagree reasonable We with these conclusions. In es in favor of nonmoving party. his pleadings Honoré made repeated refer- Anderson; Wilson v. Taylor, 658 F.2d regulations to ences in force when he be- 1981). Cir. gan work 1974. He claimed the benefit regulations. of those The transcript before Due Process hearing committee contains suf- We find no merit in Honore’s claim ficient evidence jury create issue that procedural of a denial of process. due He was claiming automatic tenure un- adequate received given notice and was regulations der in effect in opportunity fair to be heard. v. Dal- Wells those self-effectuating, were Independent District, las School vesting automatic tenure after years seven Regents The Board of teaching, and that authorized leave time retained ultimate authority, decisional counted as time. Under that sce- rejection its hearing committee’s rec- *4 nario, if accepted, it be after Honoré ommendation did not adequacy vitiate the taught for years, four was on authorized process. of the Levitt v. University of leaves of absence years, for three and re- Paso, Texas at El Cir.), 759 F.2d 1224 to turned work in eighth 1981 for the year, denied, cert. 106 S.Ct. he was entitled to tenure. (1985). 88 L.Ed.2d 578 See generally, Panyard v. Regents, Board 708 F.2d transcript also of contains the testimo- (7th Cir.1983). 1235 ny of the former counsel for the university, an attorney who drafted the 1978 However, regula- despite this finding proce of tions which changed the require- tenure dural adequacy, we do agree not with the He ments. attested to the nonretroactivity trial rejection court’s of the substantive of the regulations process due stated that the claim. To reach the jury with regulations earlier rights his controlled the process claim, substantive of due Honoré prior hired witness, those to must 1978. That genuine a a demonstrate issue of mate and former rial member chairman protected fact about property his inter facul- ty (entitlement committee, est tenure opinion was of the tenure) vested and the that university’s Honoré was arbitrary capricious with or vested tenure depriva his tion of return from See, that the e.g., Corps assign- interest. Peace Regents of ment. University Honoré Michigan v. testified that Ewing, 474 it was U.S. of until 1983 that (1985); he became aware Cleveland Board v. which had Education La been adopted Fleur, he away. U.S. while was He maintains that his L.Ed.2d 52 Schaper first notice City came when he received the Feb- Huntsville, (5th Cir.1987). 813 F.2d ruary 1983 letter from the dean. He testi- fied applied that he to the Rank and Tenure The trial court concluded that Hon- solely Committee recog- administrative presented oré had insufficient evidence to nition of the previously acquired in genuine create a relating issue to his claim 1981. The genuine record reflects issues to automatic It found that Honoré regarding material fact these matters. had offered no evidence to support his Resolution of these disputes will legitimate claim of entitlement to automat- involve assessments. Such eval- ic tenure other ambiguous than an “impres- may uations not be made in a support” sion of from the dean the law judgment setting. Leonard v. Dixie Well school. The court stated that Honoré had Supply, Service & Inc. not contended that the 1974 regulations, arguably providing tenure, persuaded We are that Honoré has cre- applied case; to his and it genuine concluded that ated concerning a issue “legit- his his petition formally seeking a decla- claim imate of entitlement” based on “mu- ration of tenure alleged belied his under- tually explicit understandings.” Board of standing that automatic tenure in Regents Roth, vested 33 L.Ed.2d 548 He has of- jury Honoré is entitled to a the trier to reach evidence fered sufficient resolution of his substantive due regula- that the 1974 the claim of fact on claim. understanding reasonable created a tions automatically vest

that tenure would First Amendment continuously remained Fergu- Honoré that he was faculty. generally, See contends dismissed school Cir.1970). retaliation for the exercise his first Thomas, son v. right speech. Regard- to free amendment Moreover, indicators the record contains issue, less of the he could arbitrary capricious deprivation. reason, discharged for that Jett v. Dallas conceded that the law school The dean of District, 798 F.2d 748 Independent School teaching perform- that his he told Honoré claim, (5th Cir.1986). To establish this adequate. testified ance was activity Honoré must show that his nor other law the dean neither protected by first amendment and that teaching per- questioned his authority ever activity protected was a substantial and his academic cre- supported He formance. motivating deny in the decision to factor accepted generally activities dentials with him tenure. Once this is done the defend- In legal scholarship. addi- as reflective “by preponderance ants must show legal writings jour- publication of tion to [they] have evidence that would reached nals, beginning included those activities decision,” same without consideration TSU, training TSU program at law review protected activity. Healthy Mount competition, court for moot law students *5 Doyle, v. City Board Education committees, and, most chairing two 274, 287, 568, 576, S.Ct. establishing a significantly, research 471, designed minori- writing to assist program The trial court found that Honore’s at TSU ty law students public speech subjects of concern embraced University. at Washburn similar course amend protected by were the first which in testimony, alone or combination This finding sup amply That is ment. impermissi- evidence of with circumstantial record, clearly ported by sufficient (discussed retaliatory infra), motive ble summary disputed-fact bar to erect fact as genuine issue of material creates a judgment. may be that defendants It capricious arbitrary and nature to the a basis for termi will be able to establish dismissal. Honore’s completely dehors the free nating Honoré Supreme mindful of the We are The record before us speech elements. Wood, in Bishop conflicting v. evidence. The defend Court’s contains admonishment affidavit, 2074, which rely L.Ed.2d on the dean’s 426 U.S. ants improper motiva generally proclaims (1976), federal court is innocence that a testimony aof offered the review tion. Honoré appropriate forum which to member that dean tenure committee personnel decisions the multitude of Further, originally supported his agencies. This daily by public are made changed his that he mind the dean testified however, restraint, does judicial measure change occurred which about to a universi require slavish deference open Honore’s contemporaneously with prop deprivation of a ty’s arbitrary vested challenges dean’s administration to the Edu erty right. v. Board Slochower At the core matter the law school. York, cation Newof credibility assessments issues are both 100 L.Ed. on denial of modified intent. of motive and 100 L.Ed. reh’g, 351 U.S. A M summary v. Texas & Univ Brown supra that We have noted (5th Cir.1986); ersity, F.2d 327 United deter- is judgment ill-suited Lulac, (5th inadequate F.2d 636 Cir. an minations. is likewise States It ques- 1986); Jackson, sorting out nebulous procedure 638 F.2d Zeigler v. As we observed Cir.1981); Regents tions of motivation. v. Board Green Greenville & Thornbrough v. Columbus University, 474 F.2d 594 Tech Texas Company, Railroad

Cir.1985): MISSOURI PACIFIC RAILROAD COM- Often, motivation only and intent can PANY, al., Plaintiffs-Appellees, et proved through evidence; circumstantial regarding determinations motivation and depend complicated intent inferences TEXAS, RAILROAD COMMISSION OF pe- from the evidence and are therefore al., Defendants-Appellants. et culiarly province within the of the fact- No. 87-1151. reviewing appeal,

finder. In a case on it is difficult to determine what evidence Appeals, United States Court might legitimately sway the factfinder Fifth Circuit. Thus, and hence be material. if any dispute, summary judgment facts are Dec. generally inappropriate. is The record us before contains sufficient

conflicting evidence material about facts to

present jury issues. Manag Professional ers, Fawer, Brian, Inc. v. Hardy & Zatz

kis, 799 F.2d 218 adequately challenged underlying

has

facts which the

motion rests. Corp. Celotex v. Catrett. summary judgment is VACATED

and the matter REMANDED to the dis- proceedings

trict court for further consist-

ent herewith. HIGGINBOTHAM,

PATRICK E. Judge, concurring *6 part

Circuit in

dissenting part: agree

I that this case must be remanded Judge

for the reasons stated in Politz’s fine

opinion, except respect. in one I unper- am deprived

suaded state Honoré of process rights. substantive due We

otherwise have concluded that the universi-

ty gave procedural rights. Honoré all his

It is true that Honore’s entitlement to auto-

matic tenure fairly debatable.

however, has no constitutional claim to a dispute.

favorable resolution of that Char-

acterizing arbitrary university’s deci- rights

sion that Honoré has no such tenure

does not dispute transform this contractual dispute magnitude.

into a of constitutional

I would affirm the district court’s decision respects except question all

whether Honoré denied tenure because engaged protected first amendment

activity.