Opinion
No. 01-09-00129-CV
Opinion issued April 6, 2011.
On Appeal from the 113th District Court, Harris County, Texas, Trial Court Case No. 2004-25123A.
Panel consists of Chief Justice RADACK and Justices ALCALA and MASSENGALE.
MEMORANDUM OPINION ON REHEARING
Appellant Kim Priebe filed a motion for rehearing and a motion for en banc reconsideration of our memorandum opinion issued on December 16, 2010. We grant rehearing, deny as moot her motion for reconsideration en banc, withdraw our opinion and judgment, and issue the following in their stead. Our disposition remains unchanged.
Priebe filed suit against her stepmother Beverly A'Hearn, alleging defamation and intentional infliction of emotional distress. The trial court granted A'Hearn's motion for directed verdict on the defamation claim. After a trial on the merits, the jury found A'Hearn liable for intentional infliction of emotional distress and awarded Priebe mental anguish damages and nominal exemplary damages. The trial court granted A'Hearn's motion for judgment notwithstanding the verdict. Priebe appeals, arguing that the trial court erred in denying her claims as a matter of law. She asks this Court to reverse and remand for trial on the defamation claim and to reverse and render judgment in her favor on the intentional infliction of emotional distress claim. We affirm.
Factual Background
Priebe's father and A'Hearn's husband, Richard Priebe, was diagnosed with terminal cancer. Priebe testified that during her father's illness, she tried to visit him as frequently as her work schedule would allow because she wanted to spend as much time with him as she could before he passed away. On at least one occasion, Priebe tried to discuss funeral arrangements and other end-of-life matters with her stepmother, but A'Hearn refused to discuss the matter. At trial, Priebe opined that A'Hearn wanted Mr. Priebe to die quickly so that she could get on with her own life.
After falling and suffering a broken hip, Mr. Priebe was prescribed hospice care and admitted to a nursing home facility in early 2003. A'Hearn did not tell Priebe about the fall or about her father being moved to a nursing home. After contacting one of her father's friends, Priebe discovered he was in hospice care at the nursing home, and she went to see him. A'Hearn testified that during one visit she ordered Priebe to leave after she witnessed Priebe leaning on her father's leg and causing him severe pain. Priebe testified that she never touched her father's leg or caused him any pain. The next day, while Priebe was sitting with her father, A'Hearn noticed that several of the morphine patches prescribed to Mr. Priebe were missing. A'Hearn contacted a nurse and asked Priebe if she knew anything about the missing patches and whether she had removed them. Frustrated by Priebe's response, A'Hearn testified that she said, "I'm not going to deal with this. Out. I want you to leave. Out." A'Hearn also spoke to a hospital administrator who allowed Priebe to finish her visit with a member of the nursing home staff in the room with her and then instructed Priebe to leave the nursing home premises.
Mr. Priebe died on February 25, 2003. A'Hearn did not personally inform Priebe of her father's passing, but Priebe's mother informed her the same day. A'Hearn had Mr. Priebe's body cremated, and his ashes were interred. No funeral was held and no obituary was published. Priebe was not informed of her father's cremation and was not included in any discussion about how his remains would be handled. A'Hearn hosted a "celebration-of-life" dinner at her home, but she did not invite Priebe.
Several weeks after Mr. Priebe's death, A'Hearn called the constable because she suspected that Priebe had tried to enter the house without her permission. In a letter dated March 18, 2003, A'Hearn notified Priebe that she was not to come to her home and that she would bring charges against her if she did. The letter also informed Priebe that A'Hearn had already discussed the matter with the police, indicated that she had retained counsel, and instructed Priebe not to contact her, any members of her family, or any of Mr. Priebe's former business partners.
Priebe initially filed a Rule 202 petition seeking to depose A'Hearn to investigate potential claims, but she did not allege any causes of action. Based on the events surrounding her father's death, Priebe filed her first supplemental petition on February 7, 2005, in which she alleged claims against A'Hearn for defamation, conversion, and intentional infliction of emotional distress for the first time. The trial court later transferred Priebe's conversion claim to the probate court. At trial, the court granted A'Hearn's motion for directed verdict on the defamation claim on limitations grounds. The jury found A'Hearn liable for intentional infliction of emotional distress, and awarded Priebe $90,000 in damages for mental anguish, as well as $1 in exemplary damages. A'Hearn filed a motion for judgment notwithstanding the verdict, which the trial court granted. In two issues, Priebe argues on appeal that (1) the trial court erred in granting the JNOV on the intentional infliction of emotional distress claim because the unanimous jury verdict in her favor was supported by substantial and compelling evidence, and (2) the trial court erred in granting A'Hearn's motion for directed verdict on the defamation claim and in refusing to submit Priebe's proposed jury questions and instructions to the jury because there was substantial and compelling evidence to support her claim.
Analysis
I. Defamation
In her second issue, Priebe argues that the trial court erred in granting A'Hearn's motion for directed verdict on the defamation claim. Specifically, Priebe contends that there was substantial and compelling evidence that A'Hearn made false statements that harmed her, and she argues that her defamation claim was not barred by the statute of limitations because there were genuine issues of material fact as to A'Hearn's alleged fraudulent concealment and the application of the discovery rule.
A directed verdict in favor of the defendant should be granted when (1) the plaintiff admits or the evidence conclusively establishes a defense to the plaintiff's cause of action, or (2) the plaintiff fails to present sufficient evidence to raise a fact issue essential to the plaintiff's right of recovery. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). In an appeal from a directed verdict, an appellate court must consider all of the evidence in the light most favorable to the party against whom the verdict was granted and disregard all contrary evidence and inferences. Click v. Owens-Corning Fiberglass Corp., 899 S.W.2d 376, 377 (Tex. App.-Houston [14th Dist.] 1995, no writ) (citing Collora v. Navarro, 574 S.W.2d 65, 68 (Tex. 1978)). "If an issue of fact is raised by the evidence, the case must go to the jury. . . ." Wright v. General Motors Corp., 717 S.W.2d 153, 155 (Tex. App.-Houston [1st Dist.] 1996, no writ). We must reverse the trial court's judgment if there is evidence on a controlling fact about which reasonable minds could differ. Id.
To establish her claim for defamation, Priebe was required to prove that A'Hearn published, either orally or in writing, a false, defamatory statement concerning her while acting negligently in regards to the truth of the statement. WFAA-TV v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); see TEX. CIV. PRAC. REM. CODE ANN. § 73.001 (WEST 2005). The statute of limitations for defamation is one year. TEX. CIV. PRAC. REM. CODE ANN. § 16.002(a) (West 2002).
Generally, a cause of action for libel or slander accrues on the day the words are printed or spoken. Wheeler v. Methodist Hosp. 95 S.W.3d 628, 636 (Tex. App.-Houston [1st Dist.] 2002, no pet.); Martinez v. Hardy, 864 S.W.2d 767, 774 (Tex. App.-Houston [14th Dist.] 1993, no writ). However, the discovery rule applies to an action for defamation when a defamatory statement is inherently undiscoverable or not a matter of public knowledge. San Antonio Credit Union v. O'Connor, 115 S.W.3d 82, 96 (Tex. App.-San Antonio 2003, pet. denied); see Wheeler, 95 S.W.3d at 636-37. In such cases, the limitations period begins to run when the plaintiff learns, or should have learned, of the existence of the defamatory statement. Wheeler, 95 S.W.3d at 636-37. Whether the discovery rule applies is a question of law. San Antonio Credit Union, 115 S.W.3d at 96; Steel v. Rhone Poulenc, Inc., 962 S.W.2d 613, 618 (Tex. App.-Houston [1st Dist.] 1998), aff'd, 997 S.W.2d 217 (Tex. 1999).
After Priebe's case-in-chief, A'Hearn moved for a directed verdict on limitations grounds and also argued that Priebe had not established that the statements were false. Priebe objected, arguing that despite her due diligence she did not learn about the defamatory statements until December 2004, and that based on application of the discovery rule, her claim was filed within the limitations period. The trial court granted A'Hearn's motion for directed verdict as to all the statements on the basis that the limitations period had passed.
Priebe first alleged a cause of action for defamation in her first supplemental petition filed February 7, 2005. At trial she alleged that A'Hearn made three defamatory statements: two at the nursing home and a third in which she accused Priebe of breaking into her home. All of the statements were made in February or March 2003. A'Hearn contends that the limitations period passed and that the discovery rule does not apply because Priebe admitted during the trial that she knew of the nature of the statements when they were made in February and March 2003. But if the discovery rule applies, then the statute of limitations would not bar Priebe's claim unless she learned, or in the exercise of reasonable diligence should have learned, of A'Hearn's statements before limitations expired. See Newsom v. Brod, 89 S.W.3d 732, 736 (Tex. App.-Houston [1st Dist.] 2002, no pet.). Relying on Mendoza v. Fidelity and Guaranty Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980), A'Hearn argues that her limitations defense was conclusively established when Priebe admitted on cross-examination that she knew the nature of the statements around the time the statements were made:
Defense Counsel: So when you were kicked out, you didn't inquire as to why you were being asked to leave?
Priebe: Yes, I did. That was the patch thing that [A'Hearn] had made up.
. . .
Defense Counsel: But [A'Hearn] had allegedly accused you of hurting your father. You knew about that, didn't you?
Priebe: Yeah. But that was another story.
. . .
Defense Counsel: So you knew when you left that [A'Hearn] had accused you of all these things?
Priebe: The nursing staff told me, yes.
A statement by a litigant that contradicts his position is not a binding judicial admission unless "it would be unjust to permit a party to recover after he has sworn himself out of court by clear, unequivocal testimony." Mendoza, 606 S.W.2d at 694 ("A party's testimonial declarations which are contrary to his position are quasi-admissions."). A statement contrary to a party's position will be characterized as a judicial admission if: (1) the declaration was made during the course of a judicial proceeding; (2) the statement is contrary to an essential fact embraced in the party's theory of recovery; (3) the statement is deliberate, clear, and unequivocal; (4) giving conclusive effect to the declaration is consistent with the public policy on which the rule is based; and (5) the statement is not also destructive of the opposing party's theory of recovery. Id.
To rise to the level of a judicial admission, Priebe's testimony had to be "deliberate, clear, and unequivocal" and not the result of a mistake or a "slip of the tongue." Id. Priebe unequivocally testified that the nursing staff told her in February 2003 that A'Hearn had accused her of hurting her father and removing medical patches when she left the nursing home. With respect to the statements made at the nursing home, the record does not reveal any confusion on Priebe's part about the questions asked or any equivocation in her response. Accordingly, we find that Priebe's testimony meets the five criteria set forth in Mendoza and is therefore a judicial admission, which serves as conclusive evidence that Priebe knew the nature of A'Hearn's alleged defamatory statements at the nursing home prior to February 6, 2004.
With respect to the allegedly defamatory statements to the police, Priebe confirmed that she received a letter in March 2003 notifying her that she was not to come to the house, that the matter had been discussed with the police, and that A'Hearn would press charges against her if she came to the house in the future. She also testified that she knew about A'Hearn's statement prior to December 2004 and that she knew "[A'Hearn] had communicated to [her sister-in-law]" about the alleged break-in.
Given this testimony, the trial court properly concluded that the discovery rule was inapplicable because the nature of the statement was not inherently undiscoverable. See Ellert v. Lutz, 930 S.W.2d 152, 156-57 (Tex. App.-Dallas 1996, no writ) (concluding that libelous statement was not inherently undiscoverable where plaintiff had ready access to her personnel file). To be inherently undiscoverable, an injury must, by its nature be unlikely to be discovered within the prescribed limitations period despite due diligence. S.V. v. R.V., 933 S.W.2d 1, 7 (Tex. 1996); Shivers v. Texaco Exploration Prod., Inc., 965 S.W.2d 727, 734 (Tex. App.-Texarkana 1998, pet. denied). Priebe argued that despite due diligence she was not able to learn of nature of A'Hearn's statements until December 2004. But she knew in March 2003 that the police had been contacted and that A'Hearn would press charges if she returned to the house without permission. It was also evident from her testimony that Priebe learned the nature of the statements prior to December 2004. We conclude that the nature of A'Hearn's statement was not inherently undiscoverable. See S.V., 933 S.W.2d at 7; Shivers, 965 S.W.2d at 734. We hold that the trial court properly granted A'Hearn's motion for directed verdict on limitations grounds, and we overrule Priebe's second issue.
II. Intentional Infliction of Emotional Distress
In her first issue, Priebe argues that the trial court improperly granted A'Hearn's motion for judgment notwithstanding the verdict because there was substantial and compelling evidence supporting her claim of intentional infliction of emotional distress. A trial court may disregard a jury's verdict and render judgment notwithstanding the verdict only if no evidence supports the jury's findings, or if a directed verdict would have been proper. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003); Williams v. Briscoe, 137 S.W.3d 120, 124 (Tex. App.-Houston [1st Dist.] 2004, no pet.). If, considering the evidence in the light most favorable to the jury's verdict, there is more than a scintilla of competent evidence to support the jury's findings, the reviewing court must reverse the judgment. Williams, 137 S.W.3d at 124.
To recover damages for intentional infliction of emotional distress, a plaintiff must show that: (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; and (3) the defendant's conduct caused the plaintiff severe emotional distress. Hoffman-LaRoche, Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004); Standard Fruit Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998). Because intentional infliction of emotional distress is a "gap-filler" tort, the plaintiff, in addition to the above elements, must also establish that there are no alternative causes of action that would provide a remedy for the severe emotional distress caused by the defendant's conduct. Kroger Tex. L.P. v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006); Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005); Hoffman-La Roche, 144 S.W.3d at 447. If there is an independent set of facts that would support a claim for intentional infliction of emotional distress, then the claim is not barred. See Hoffman-La Roche, 144 S.W.3d at 450. But if the gravamen of the plaintiff's intentional infliction of emotional distress claim is another tort, the plaintiff may not maintain the action, regardless of whether the plaintiff chooses to assert the alternative claim, the plaintiff succeeds on the alternative claim, or the claim is barred. Id. at 447-48.
In this case, the trial court granted a directed verdict in favor of A'Hearn on the defamation claim because the limitations period had passed. Because intentional infliction of emotional distress is a gap-filler tort and mental anguish damages are recoverable under both defamation and intentional infliction of emotional distress, Priebe could not simply claim intentional infliction of emotional distress and thereby circumvent the shorter limitations period for defamation claims. Id. at 447; see Standard Fruit Vegetable, 985 S.W.2d at 68. To the extent that the facts underlying Priebe's defamation claim also supported her intentional infliction of emotional distress claim, her recovery was barred and the JNOV was properly granted.
Priebe also alleged facts in support of her intentional infliction of emotional distress claim that did not support her defamation claim. She alleged, among other things, that A'Hearn did not inform her when her father was moved into a nursing home, excluded her from discussions concerning the treatment of her father's remains, failed to call when her father died, and did not invite her to the celebration-of-life dinner. Accordingly, the trial court could not set aside the jury's verdict as to these claims unless no evidence supported its findings, or a directed verdict would have been proper. Tiller, 121 S.W.3d at 713; Williams, 137 S.W.3d at 124.
Before submitting a question on intentional infliction of emotional distress to the jury, the court must determine, as a matter of law, whether the defendant's conduct was "extreme and outrageous." Tiller, 121 S.W.3d at 713; see also Bradford v. Vento, 48 S.W.3d 749, 758 (Tex. 2001). If the court concludes that reasonable minds could differ, the jury, subject to the court's control, determines whether the conduct, in a particular case, was sufficiently extreme and outrageous to result in liability. Tiller, 121 S.W.3d at 713 (citing GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 616 (Tex. 1999)).
A claim for intentional infliction of emotional distress is rarely meritorious because "most human conduct, even that which causes injury to others, cannot be fairly characterized as extreme and outrageous." Kroger, 216 S.W.3d at 796 (having plaintiff arrested on reasonable belief that she shoplifted); see Creditwatch, 157 S.W.3d at 817-818 (terminating employee and instructing another employee to evict her). To be actionable under this tort, the 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." Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993) (quoting RESTATMENT (SECOND) OF TORTS § 46 cmt. d (1965)). Insensitive or rude behavior is not considered extreme and outrageous. See Kroger, 216 S.W.3d at 796. And "mere insults, indignities, or annoyances" will generally not be characterized as extreme and outrageous. GTE Sw., 998 S.W.2d at 605.
In determining whether conduct is extreme or outrageous, both the defendant's course of conduct and relationship with the plaintiff may be considered. See Tiller, 121 S.W.3d at 714 ("[A] single act, taken alone, may or may not rise to the level of `extreme and outrageous' conduct, [but] it is possible that several acts taken together can amount to such harassment as to be more than petty oppression." (citations omitted)). "Conduct considered extreme and outrageous in some relationships may not be so in other relationships." Toles v. Toles, 45 S.W.3d 252, 261 (Tex. App.-Dallas 2001, pet. denied) (citing Twyman, 855 S.W.2d at 627 (Phillips, C.J., concurring and dissenting) (discussing intentional infliction of emotional distress in context of divorce)). Given the volatility of some relationships, it is inevitable that the parties will suffer some emotional distress when disagreements arise. See id.
Priebe testified that A'Hearn did not tell her about her father's fall, which precipitated his admission into the nursing home facility; excluded her from discussions about the after-death treatment of her father's remains; did not inform her that Mr. Priebe had signed a "do not resuscitate" order before entering hospice care; and excluded Priebe from the celebration-of-life dinner at her house.
A'Hearn also ordered her to leave the nursing home facility twice, banned her from future visits, and had her son threaten to forcibly remove Priebe if she refused to leave. When Mr. Priebe died, A'Hearn did not call Priebe to inform her of her father's death, and several weeks later, A'Hearn sent Priebe a letter in which she threatened to contact the police if Priebe came to her home or attempted to contact her or any of her family members.
Priebe contends that A'Hearn's actions were designed to punish her and to prey on her emotional sensitivities during the period of her father's illness and after his death. She does not argue that any particular action by A'Hearn was the sole cause of her emotional distress; rather, she argues that A'Hearn's course of conduct, viewed as a whole, was extreme and outrageous. A course of conduct may be considered in determining whether conduct is extreme and outrageous, but the fact that A'Hearn's conduct could have been perceived as rude and insensitive on several occasions does not necessarily mean that her conduct was extreme and outrageous. Compare Tiller, 121 S.W.3d at 715 (holding that conduct of defendant who threatened to cancel business contracts, criticized timeliness and workmanship of projects, and made insensitive, rude, and curt telephone calls to wife of business contact when he knew that her husband had a malignant brain tumor, was not extreme and outrageous), with GTE Sw., 121 S.W.3d at 616 (holding that severe and persistent harassment, humiliation, and intimidation over course of several years was extreme and outrageous).
In this case, A'Hearn's failure to call Priebe when her father entered the nursing home, as well as her choice to exclude Priebe from any decisions concerning Mr. Priebe's remains and memorial service, were insensitive when viewed from Priebe's perspective. However, intra-familial discord of this variety is not regulated by tort law, and the tort of intentional infliction of emotional distress does not permit recovery for inconsiderate and unkind behavior. See RESTATEMENT (SECOND) OF TORTS § 46 cmt. d. As the person designated in Mr. Priebe's power of attorney and as his surviving spouse, A'Hearn had the right to control the disposition of his remains. See TEX. HEALTH SAFETY CODE ANN. § 711.002(a) (West 2010). She had no legal duty to inform Priebe of her father's death or to allow Priebe to visit her father at the nursing home.
Priebe testified that the letter notifying her that the police had been contacted and threatening to press charges if she attempted to enter her home added "insult to injury," but she also testified that when she received the letter she "didn't think twice about it," and that "[i]t wasn't relevant to [her]." Even if A'Hearn knew that communicating with the police was likely to cause Priebe emotional distress, neither A'Hearn's communication with the police nor her act of sending the letter to Priebe was extreme and outrageous. See Kroger, 216 S.W.3d at 796 (holding that conduct was not extreme and outrageous where defendant contacted police under mistaken belief that plaintiff had shoplifted); see also Torres v. GSC Enters., 242 S.W.3d 553, 563 (Tex. App.-El Paso 2007, no pet.) (defendants reported possible crime to law enforcement); Cox Tex. Newspapers, L.P. v. Wootten, 59 S.W.3d 717, 724 (Tex. App.-Austin 2001, pet. denied) (defendant published pictures of plaintiff's deceased spouse); Gaspard v. Beadle, 36 S.W.3d 229, 237-38 (Tex. App.-Houston [1st Dist.] 2001, pet. denied) (defendant broke up with client and billed her for legal work performed during their relationship).
To the extent that Priebe's intentional infliction of emotional distress claim was based on the same facts as her defamation claim, we conclude that her claim was barred. To the extent that Priebe alleged independent facts supporting a claim for intentional infliction of emotional distress, we conclude that the evidence presented in this case did not support the jury's finding that A'Hearn's behavior was extreme and outrageous, and we hold that her conduct did not amount to an actionable intentional infliction of emotional distress claim. We overrule Priebe's first issue.
Conclusion
We hold that the trial court properly granted A'Hearn's motions for directed verdict and for judgment notwithstanding the verdict. We affirm the trial court's judgment.