Haynes & Boone, L.L.P., and
Bettye S. Springer,
Appellants
v.
Lisa Chason,
Appellee
NO. 12-00-00374-CV
81 S.W.3d 307
2001 Tex. App. Lexis 8596
November 28, 2001, Opinion Delivered
Petition for Review Denied May 23, 2002.
Panel
consisted of Davis, C.J., Worthen, J., and Griffith, J. [*308]
Davis,
C.J
Haynes
& Boone, L.L.P. and Bettye Springer ("Appellants") appeal from a
judgment entered in favor of Lisa Chason in her suit for intentional infliction
of emotional distress. Appellants raise four issues on appeal. Because we
determine that the evidence does not support a finding that Springer's actions
rose to the level of extreme and outrageous conduct required for the tort of
intentional infliction of emotional distress, we reverse the trial court's
judgment and render judgment in favor of Appellants.
Bettye Springer, a partner in
the law firm of Haynes & Boone, represented the City of Palestine in an
employment dispute between the City and Chason's husband, Brian. One of the
issues in that dispute involved Brian's unauthorized personal use of a city
owned digital camera to take provocative photographs of Chason. Springer
enlarged one of the photos of Chason to poster size for use at an
administrative hearing held at the Palestine Public Library. The photo shows
Chason's unclad torso, but not her face. Chason [*309] alleged that, at the
close of the first day of the hearing, Springer publicly displayed the poster
and, on the second day of the hearing, she spoke inappropriately to a reporter
about the photographs. Based on these two incidents, Chason sued Haynes &
Boone and Springer for intentional infliction of emotional distress. The jury
found that Springer intentionally inflicted emotional distress on Chason,
awarded her nothing for past damages, but $50,000 for future damages and $25,000
in exemplary damages.
The Issue
Appellants assert in their first
issue that the trial court should not have allowed this case to go to the jury.
They argue that, as a matter of law, the complained-of incidents do not rise to
the level of extreme and outrageous conduct required to submit the issue of
intentional infliction of emotional distress to the jury. Therefore,
their argument continues, the trial court should have entered judgment in their
favor at the close of plaintiffs case. Although Appellants did not label their
motion as one for directed verdict, in essence, it is such a motion.
Accordingly, we address this issue as though it were an appeal from the denial
of a motion for directed verdict.
An
appeal from the denial of a motion for directed verdict is in essence a challenge to the legal sufficiency of the
evidence. Lochinvar Corp. v. Meyers,
930 S.W.2d 182, 187 (Tex. App.- Dallas 1996, no writ). We sustain challenges to
the legal sufficiency of the evidence when there is a complete lack of evidence
of a vital fact or the evidence offered to prove a vital fact is no more than a
mere scintilla. Id. at 188. The
reviewing court considers only the evidence and inferences tending to support
the trial court's ruling. Wal-Mart
Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). If there is any
evidence of probative value raising issues of fact on the material questions
presented, a directed verdict is improper.
Qantel Bus. Sys., Inc. v. Custom Controls, 761 S.W.2d 302, 304 (Tex.
1988).
Applicable Law
The
elements of the tort of intentional infliction of emotional distress are: 1)
the defendant acted intentionally or recklessly, 2) the conduct was extreme and
outrageous, 3) the actions of the defendant caused the plaintiff emotional
distress, and 4) the emotional distress suffered by the plaintiff was
severe. Twyman v. Twyman, 855 S.W.2d
619, 621 (Tex. 1993). Courts must determine as a threshold matter whether the
defendant's conduct may reasonably be regarded as so extreme and outrageous as
to permit recovery. Brewerton v.
Dalrymple, 997 S.W.2d 212, 216 (Tex. 1999). To be extreme and outrageous,
conduct must be so outrageous in character and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community. Id. The test for determining what
conduct is extreme and outrageous is essentially a subjective one. Twyman, 855 S.W.2d at 629 (Hecht, J., concurring
and dissenting). The fact that an act is intentional or malicious does not make
it extreme and outrageous for purposes of this tort. 997 S.W.2d at 215. Insensitive or rude behavior does not amount
to outrageous behavior. Gaspard v.
Beadle, 36 S.W.3d 229, 238 (Tex. App.- Houston [1st Dist.] 2001, pet. denied).
Mere insults, indignities, or other trivialities do not rise to the necessary
level of extreme and outrageous conduct. Restatement (Second) of Torts § 46
cmt. d (1965). [*310] Plaintiffs are expected to be hardened to occasional
inconsiderate and unkind acts. Id. In determining whether certain conduct is
extreme and outrageous, courts consider the context and the relationship
between the parties. GTE Southwest,
Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex. 1999). Considering only the evidence
and inferences tending to support the trial court's finding that Springer's
conduct was extreme and outrageous as those terms are used in the context of
the tort of intentional infliction of emotional distress, we consider whether
Appellants' motion should have been granted.
The
Complained-of Conduct
In
her petition, Chason complains of two specific, isolated incidents. The first
incident happened on the first day of an administrative hearing held in a matter
between her husband and the City of Palestine. A portion of the discussion at
that hearing centered on photographs of Chason that had been taken by her
husband using a city owned digital camera. In some of the photos, Chason was
wearing lingerie. In one
of the photos, she was topless, although her face did not show. Springer had
the photo in which Chason appeared topless enlarged to poster size.
The
hearing was held at the Palestine Public Library. Chason testified that at the
end of the day, as the parties were leaving the hearing, Springer looked at
her, picked up the poster, put it under her arm, looked at her again, turned
the poster so the image faced out toward Chason, smiled, and left the room.
Springer then walked into the foyer where she stood for five to ten minutes
visiting with her clients as library patrons entered and exited the library.
During this time, Springer looked at Chason and smiled. Springer then walked to
the parking lot where she stood, talking to her clients, for an additional
fifteen to twenty minutes. Several times, Springer turned to look at Chason.
Springer's legal assistant then placed the poster in the trunk of Springer's
car. Chason testified that
the poster was not covered while Springer was carrying it. Chason characterized
Springer's actions as a personal attack, made knowingly, with the specific
intent to hurt her. Brian Chason's attorney, William Curley, testified that he
saw Springer carrying the uncovered photo facing out so that people could see
it after the hearing.
The
second incident involved a conversation between Springer and Michael Roark, a
local newspaper reporter. During the second day of the hearing, Chason was
sitting outside the hearing room with her best friend, Jamie Long. According to Long's testimony,
Springer came out of the hearing room, looked at Chason, then saw Roark,
laughed, and told him she had some photographs she would like to sell him. Long
characterized Springer's conduct as humiliating, degrading, and intimidating.
Roark testified that he got the impression that Springer was waiting for him to
walk up so she could make the comment in order to upset Chason.
The context in which these two
incidents arose is important to our analysis. Chason is a long time resident of
Palestine, Texas where she works as the manager of a local restaurant. She is
active in her church, and has enjoyed a good reputation in the community.
Understandably, even before the administrative hearing, Chason was concerned
that the photographs her husband had taken might become public.
She described how distraught she
had been when she first learned that some police officers had discovered the
photographs on the City's laptop computer, especially since she had
specifically instructed [*311] her husband to delete the photographs from the
City's computer before returning it. She was so concerned that they would be
viewed by still more officers that she personally met with the chief of police
to ask him to make sure the photos were not passed around the department or
discussed among the officers. She also explained that she had been very
upset to find out that two baby-sitters, ages ten and twelve, had perused the
computer files on Chason's personal computer and somehow found the photographs.
Chason then had to discuss the photos with the baby-sitters' mothers.
The photos were further
publicized during the course of the employment dispute between Chason's husband
and the City of Palestine. The City had terminated her husband and he appealed
that decision which resulted in a three-day hearing held at the public library.
While Chason was not a party to that proceeding and therefore not allowed to remain
inside the hearing room, she was present, seated just outside the hearing room.
The events of the hearing, including a reference to the photos which were
placed into evidence, were reported in the local newspaper, and had even been
discussed on what Chason described as "a big gossip web site."
Matters that Chason referred to as family secrets were brought out during the hearing, including
details of an extra-marital affair her husband had engaged in. Thus, the record
shows that the photos, or information about them, were disseminated in many
different ways, including, but not limited to, the complained-of conduct of
Springer.
Understandably, the entire
unpleasant ordeal concerning her husband's termination, the fear of the
potential dissemination of their personal photographs, and their public marital
problems would all be very upsetting to Chason. However, we cannot confuse the
elements of the severity of the plaintiffs distress with the severity of the
defendant's conduct. In considering whether Springer's conduct was extreme and
outrageous, Chason's level of distress does not factor in and we make no
comment regarding that element of her cause of action. Moreover, the fact that
an act has the effect of causing one to experience emotional distress, does not
in and of itself, compel a court finding that the act itself was extreme and
outrageous.
The
threshold for what constitutes extreme and outrageous conduct sufficient to
give rise to the tort of intentional infliction of emotional distress is a
difficult one to meet. To guide us in our determination of whether Springer's
conduct is actionable, we have reviewed numerous Texas cases in which the
plaintiff alleged intentional infliction of emotional distress and the courts
were required to assess whether the defendant's conduct met the threshold of
extreme and outrageous conduct.
In
the employment context, behavior has, in some instances, been found to be
extreme and outrageous where the supervisor's unwanted behavior continued over
a period of time. In Fields v. Teamsters Local Union No. 988, 23 S.W.3d 517
(Tex. App.- Houston [1st Dist.] 2000, pet. denied), the employer threatened to
fire the employee if she did not succumb to his sexual advances. The harassment
took place over a three month period. The appellate court reversed a summary
judgment in favor of the employer, determining it could not be held that his
behavior did not as a matter of law rise to the requisite level of extreme and
outrageous. 23 S.W.3d at 531-33. In GTE Southwest v. Bruce, the Supreme Court
held that the supervisor's ongoing acts of harassment, intimidation, and
humiliation and his daily vulgar and [*312] obscene behavior rose to the
requisite level. Bruce, 998 S.W.2d at
612-13. In Dean v. Ford Motor Credit Company, 885 F.2d 300 (5th Cir. 1989), the
Fifth Circuit Court of Appeals held that an employer who, in addition to other
improper acts, caused an innocent employee to be subject to an accusation of
crime and put in fear that she might be accused of a crime is extreme and
outrageous conduct. Id. at 307.
Conduct
occurring over an extended period of time in contexts other than employment has
also been identified as extreme and outrageous conduct. The Dallas Court of
Appeals found a husband's mental and physical abuse of his wife throughout
their marriage to constitute extreme and outrageous conduct. Toles v. Toles, 45
S.W.3d 252, 262 (Tex. App.- Dallas 2001, pet. denied). In Gonzales v. Willis,
995 S.W.2d 729 (Tex. App.- San Antonio 1999, no pet.), the defendant led the
plaintiff to believe he would help her get a job at his place of employment.
The two spoke over the phone and in person several times. The defendant
repeatedly initiated sexually explicit conversations and made sexual advances
in spite of the plaintiffs clear protests. He suggested that he would help her
get the job she wanted in return for sexual favors. He also encouraged the
plaintiffs coworkers to convey indecent propositions to her. The San Antonio
Court of Appeals agreed with the jury's determination that this conduct was
extreme and outrageous. Id. at 736.
Courts
have also identified certain isolated incidents as meeting the threshold for
extreme and outrageous conduct. The Supreme Court reviewed a summary judgment
granted in favor of the defendant in Morgan v. Anthony, 27 S.W.3d 928 (Tex.
2000). There, the plaintiffs car was experiencing mechanical difficulties on a
highway between two towns. Plaintiff was driving on the shoulder at five miles
per hour when her car died and the defendant stopped to offer his assistance.
In the process he also made suggestive comments, making it clear that he was
interested in more than helping her with car repairs, and he continued to
pursue her even after she declined his assistance. After describing in detail
the defendant's actions, the Supreme Court said that it had "no difficulty
in concluding that there is evidence of conduct" that is extreme and
outrageous. Id. at 931. The Corpus Christi Court of Appeals reversed a directed
verdict entered in the defendant's favor in Escalante v. Koerner, 28 S.W.3d 641
(Tex. App.- Corpus Christi 2000, pet. denied). Escalante gave birth by
caesarian section to one healthy twin. The other twin had died in utero and
Koerner, her doctor, told Escalante the fetus had been "reabsorbed"
and therefore there was nothing left to bury. Escalante later learned that was
not true. The remains had been disposed of as surgical waste in spite of
Koerner's knowledge that Escalante and her husband wanted to bury whatever remained
of the fetus. The Corpus Christi court determined that the trial court erred in
finding the doctor's conduct was not extreme and outrageous as a matter of law.
28 S.W.3d at 647-48. The Fort Worth Court of Appeals affirmed a jury's
determination that a car dealership intentionally inflicted emotional distress
on a customer through the use of its sales techniques. George Grubbs Enters. v. Bien, 881 S.W.2d
843, 853-54 (Tex. App.- Fort Worth 1994), rev'd on other grounds, 900 S.W.2d
337 (Tex. 1995). The dealership induced the customer to write a check through
misrepresentation, then detained him for four hours, exerting constant pressure
on him to go through with the sale. Id.
Conversely,
we have found an even greater number of cases in which the courts found the defendant's
conduct did [*313] not rise to the requisite level to allow recovery for
intentional infliction of emotional distress. In Wornick Co. v. Casas, 856
S.W.2d 732 (Tex. 1993), the Supreme Court held that an employer's conduct in
firing an employee for allegedly possessing incriminating information and in
escorting her off the premises with a security guard was not extreme and
outrageous conduct. Id. at 735. An attorney's act of ending a relationship with
a client and then sending her a bill for past legal services is not extreme and
outrageous conduct. Gaspard, 36 S.W.3d at 237-38. Questioning an employee about
an alleged theft until she cries is not extreme and outrageous conduct.
Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). A
caseworker's discussion with the distraught mother of a sexually abused child
regarding the child's sexual activity and the need to place the child in foster
care on a permanent basis was deemed not to be extreme and outrageous conduct.
Mattix-Hill v. Reck, 923 S.W.2d 596, 598 (Tex. 1996). A nurse who interviewed a
rape victim, who was a minor, in the public waiting area of the hospital's
emergency room in a rude and insensitive manner did not behave in an extreme
and outrageous manner. C.M. v. Tomball
Regional Hosp., 961 S.W.2d 236, 245 (Tex. App.- Houston [1st Dist.] 1997, no
writ).
There
are several cases reviewing an employer's behavior towards an employee over
time in which each court found the behavior did not rise to the requisite level
of extreme and outrageous conduct. The Dallas Court of Appeals held that
allegations that a supervisor went out of his way to stare at an employee with
a hateful look in his eyes or in an intimidating way is not extreme and
outrageous conduct. Williams v. Northrup Grumman Vought, 68 S.W.3d 102, 2001
Tex. App. Lexis 4585, 2001 WL 767561, at *8-9 (Tex. App.- Dallas 2001, no
pet.). This Court has held that an employer's rudeness, anger, and criticism
directed at an employee is not extreme and outrageous conduct. Wal-Mart Stores,
Inc. v. Bertrand, 37 S.W.3d 1, 13-15 (Tex. App.- Tyler 2000, pet. denied). The
Corpus Christi Court of Appeals has held that allegations that a supervisor
asked an employee if she did her best work in the dark, discussed a sexually
explicit article, and looked at her in a way that made her feel as if he was
undressing her were not outrageous as a matter of law. Garcia v. Andrews, 867
S.W.2d 409, 410 (Tex. App.- Corpus Christi 1993, no writ). Even though it
considered a physician's behavior morally unjustifiable, the Beaumont Court of
Appeal nonetheless found his conduct, an apparent attempt to have a hospital
administrator fired for his own personal reasons, did not rise to the requisite
level. Lassiter v. Wilkenfeld, 930
S.W.2d 803, 807-08 (Tex. App.-Beaumont 1996, writ denied). Finally, the Fifth
Circuit has held that although the defendant's actions constituted racial
harassment, a condemnable and possibly illegal action, it did not rise to the
level of extreme and outrageous conduct under Texas law. Walker v. Thompson,
214 F.3d 615, 628 (5th Cir. 2000).
If we were to consider these
cases as demonstrating a spectrum with cases involving conduct meeting the
threshold for extreme and outrageous conduct at one end, and behavior falling
short of the threshold at the other end, we would have to place the instant
case at the latter end of the spectrum. The case before us does not contain the
sort of flagrant or heinous facts, as described above, that led the various
courts to determine the defendants there involved had indeed engaged in extreme
and outrageous conduct. Springer made no indecent propositions to Chason.
See Morgan, 27 S.W.3d at 931; Gonzales, 995 S.W.2d at 736. Springer did not
engage in vulgar or obscene behavior. See Bruce, 998 S.W.2d at 612-13. Springer
[*314] did not attempt to deceive Chason in order to further a personal
interest. See Gonzales, 995 S.W.2d at 736. Other than perhaps some temporary
mental anguish, Springer's acts carried no logically foreseeable negative consequences.
See Dean, 885 F.2d at 307. Springer did not threaten, coerce, or physically
abuse Chason. See Totes, 45 S.W.3d at 262; Bien, 881 S.W.2d at 853-54. Finally,
Springer's actions did not involve any fraud. See Escalante, 28 S.W.3d at
647-48; Bien, 881 S.W.2d at 853.
Chason has complained of two
isolated incidents, not a prolonged series of acts. They occurred in the
adversarial context of litigation in which Springer represented a party that
had fired Chason's husband from his job for, among other infractions, allegedly
using city equipment for personal use, including photographing Chason with her
consent. The incidents involved a trial exhibit which, due to the nature of the
photo from which it was made, was grainy and unclear. It showed a headless
torso not easily identifiable as Chason. Further, the acts were essentially
passive. Springer never spoke to Chason or physically touched her. See Williams,
68 S.W.3d 102, 2001 Tex. App. Lexis 4585, 2001 WL 767561, at *8-9. Even though the complained-of
acts may have been deliberate or even malicious and calculated to humiliate
Chason, we do not believe the acts rise to the level of extremeness and
outrageousness required by the Texas Supreme Court. See Brewerton, 997
S.W.2d at 215. Although arguably unjustifiable, the acts do not rise to the
requisite level. See Lassiter, 930 S.W.2d at 808. Essentially, Springer was
doing her job, albeit perhaps poorly. See Reck, 923 S.W.2d at 598; Johnson, 891
S.W.2d at 644; C.M., 961 S.W.2d at 245. While such alleged acts could be characterized as rude
and unprofessional, such insensitive indignities do not, as a matter of law,
meet the threshold for outrageous and extreme conduct as required to permit
recovery for intentional infliction of emotional distress as defined by the
Texas Supreme Court. See id; Gaspard, 36 S.W.3d at 238; Restatement
(Second) of Torts § 46 cmt. d (1965).
We conclude, therefore, that the
trial court should have granted Appellants' motion for directed verdict because
Springer's conduct did not rise to the level of extreme and outrageous conduct
necessary to satisfy this required element of the tort of intentional
infliction of emotional distress. We sustain Appellants' first issue and
find it unnecessary to consider their remaining issues. We reverse the trial
court's judgment and render judgment that Chason take nothing on her claim for
intentional infliction of emotional distress. See Tex. R. App. P. 43.3.
LEONARD
DAVIS
Chief Justice