Opinion
No. 14-97-00814-CV
Opinion filed August 27, 1998. DO NOT PUBLISH — TEX. R. APP. P. 47.3(b).
On Appeal from the 129 th District Court Harris County, Texas, Trial Court Cause No. 94-16889.
OPINION
This is an appeal from a grant of summary judgment. In three points of error, appellant, Alfred Antonini ("Antonini"), contends the trial court erred in granting summary judgment for appellee, Helen Huey ("Huey"). We affirm.
Antonini is a real estate developer who owns low income housing in Houston. Huey was a member of the city council acting on behalf of the Houston Department of Planning Development. In March, 1992, Huey publicly described Antonini as a "fat cat in California . . . run[ning] slum housing in Houston" and as "Houston's premier slumlord."
In August, 1992, Huey again described Antonini as "Houston's biggest slumlord" during an interview with the media.
After hearing the statements, Antonini sued Huey for libel, slander, false light invasion of privacy, and intentional and negligent infliction of emotional distress on April 13, 1994. Huey subsequently filed a motion for summary judgment contending: (1) Antonini's defamation and emotional distress causes of actions were barred by the statute of limitations; (2) false light was not a recognizable cause of action in Texas; (3) her statements were protected by the First Amendment; (4) Antonini could not prove the "outrageous" element needed for a claim of intentional infliction of emotional distress; and (5) negligent infliction of emotional distress is not a recognizable tort in Texas. The court granted summary judgment without stating the grounds it relied upon and this appeal followed.
Antonini only appeals his causes of action for libel, slander, and intentional and negligent infliction of emotional distress. He fails to argue summary judgment was improperly granted for false light invasion of privacy. Nevertheless, the Texas Supreme Court in Cain v. Hearst Corp, 878 S.W.2d 577, 577 (Tex. 1994), held that false light invasion of privacy is not a recognizable tort in Texas. Hence, summary judgment would have been proper on that ground.
The following standard for reviewing a motion for summary judgment is well established: 1) the movant must show that no genuine issue of material fact exists and that it is entitled to summary judgment as a matter of law; 2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and 3) every reasonable inference must be resolved in the nonmovant's favor. See Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997) (citing Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985)). Where, as here, the summary judgment order does not specify the grounds upon which summary judgment was granted, we will affirm the judgment if any of the theories advanced in the motion are meritorious. State Farm Fire Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
Initially, we will address the statute of limitations issue raised in Antonini's second point of error because it overlaps other points raised by Antonini and eliminates his defamation claims. In this point of error, Antonini argues a fact issue exists as to when the causes of action for libel and slander accrued. He claims without citing any authority, that because Huey's defamatory statements were ongoing, the accrual of his causes of action for defamation were also ongoing. We disagree.
In order to bring a suit based on libel or slander, a person must do so "not later than one year after the day the cause of action accrues." See TEX. CIV. PRAC. REM. CODE ANN. § 16.002 (Vernon 1997). This court has previously held that a "cause of action for slander accrues when the words are spoken and the injury occurs." See Martinez v. Hardy, 864 S.W.2d 767, 774 (Tex.App.-Houston [14th Dist.] 1993, no writ) (citing Salazar v. Amigos Del Valle, Inc., 754 S.W.2d 410, 412 (Tex.App.-Corpus Christi 1988, no writ.)). Similarly, a libel cause of action accrues when the matter is published or circulated, and the limitation statute begins to run when the injured person learns of the defamation. See Dwyer v. Sabine Mining Co., 890S.W.2d 140, 142 (Tex.App.-Texarkana 1994, writ denied)( citing Citizens State Bank of Dickinson v. Shapiro, 575 S.W.2d 375, 380 (Tex.Civ.App.-Tyler 1978, writ ref'd n.r.e.)). Because Antonini never raises the discovery rule, we can assume that he learned of the statements and was injured by them when Huey first began to make the statements on March 3, 1992. Therefore, Antonini's claims of libel and slander filed on April 13, 1994 are barred by the one year statute of limitations. We overrule Antonini's second point of error.
Antonini amended his original petition twice. His original petition alleged defamatory statements were made in March, 1992 only, and his first amended petition alleged defamatory statements were made in March and August of 1992. Both petitions failed to allege defamatory statements within the one year statute of limitations. His second amended petition was filed three days before the summary judgment order was signed, and therefore, was late and not properly before the court.
In Antonini's first point of error, he contends summary judgment was improper because Huey failed to disprove at least one element of his causes of actions for defamation, and intentional and negligent infliction of emotional distress claims. As previously discussed, Huey brought forward summary judgment proof that Antonini's defamation claims were barred by the one year statute of limitations because he failed to file within one year of March 3, 1992. Huey also contended in her summary judgment motion that Antonini's claim for negligent infliction of emotional distress was barred because it was not a recognizable cause of action in Texas. Huey relied on Boyles v. Carr, 855 S.W.2d 593 (Tex. 1993) for this proposition.
In Boyles, the court held that there is no general duty in Texas not to negligently inflict emotional distress, but a claimant could recover mental anguish damages in connection with defendant's breach of some other legal duty. See id. at 594. Recently, the Texas Supreme Court has further clarified when mental anguish damages can be recovered outside the existence of a special relationship between a defendant and a plaintiff in City of Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997) (holding a plaintiff cannot recover damages for mental anguish arising out of harm to property based on acts of simple negligence). In City of Tyler, the court stated:
[w]ithout intent or malice on the defendant's part, serious bodily injury to the plaintiff, or a special relationship between the two parties, we permit recovery for mental anguish in only a few types of cases involving injuries of such a shocking and disturbing nature that mental anguish is a highly foreseeable result. These include suits for wrongful death, and actions by bystanders for a close family member's serious injury.
Id. at 496 (citations omitted).
In the case at bar, Antonini has not claimed a special relationship existed between himself and Huey, and he has failed to prove intentional or malicious conduct by Huey, i.e., he is unable to rely on the defamation cause of action for proof of malice because of the statute of limitations. See Leyendecker Associates, Inc. v. Wechter, 683 S.W.2d 369, 374 (Tex. 1984) (holding mental anguish damages were recoverable when the plaintiff establishes a cause of action for libel per se). Therefore, Huey proved Antonini could not recover for negligent infliction of emotional distress because the law does not recognize a breach of a general duty not to negligently inflict emotional distress. Thus, summary judgment was proper on this ground.
We also conclude summary judgment was properly granted on Antonini's intentional infliction of emotional distress claim because Huey's conduct was not outrageous. Generally, in order to recover for intentional emotional distress, a plaintiff must prove that: (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. See Twyman v. Twyman, 885 S.W.2d 619, 621 (Tex. 1993) (citing RESTATEMENT (SECOND) OF TORTS § 46 (1977)). Whether the plaintiff presented sufficient evidence to support this cause of action is an issue of law for the trial judge. Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993).
This implicitly includes the question of whether "outrageous" conduct existed. Schauer v. Memorial Care Systems, 856 S.W.2d 437, 451 (Tex.App.-Houston [1st Dist.] 1993, no writ). Outrageous conduct has to 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. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). We cannot say the statements describing Antonini as a slumlord were so outrageous as to be beyond all possible bounds of decency or atrociousness conduct. Additionally, outrageous conduct would not be mere insults, indignities, annoyances, petty oppressions, or even threats. See Schauer, 856 S.W.2d at 451. Even though the average person would find the statements made by Huey insulting, we find it was simple name-calling and would not rise to the necessary level of outrageous conduct. See Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85, 94 (Tex.App.-Dallas 1996, writ denied) (holding that calling someone a thief is not enough to meet the "outrageous" element of intentional infliction of emotional distress). Therefore, the trial court did not err in granting summary judgment for Antonini's claim for intentional infliction of emotional distress. We overrule Antonini's first point of error.
We need not discuss Antonini's third point of error contending Huey failed to prove the statements were made without malice because we found Antonini's defamation claims were barred by a one year statute of limitations. Consequently, we overrule Antonini's third point of error.
The judgment of the trial court is affirmed.