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Soda v. Caney

Court of Appeals Fifth District of Texas at Dallas
Jun 5, 2012
No. 05-10-00628-CV (Tex. App. Jun. 5, 2012)

Opinion

No. 05-10-00628-CV

06-05-2012

TAKASHI SODA, Appellant v. MICHAEL CANEY, Appellee


AFFIRM; Opinion Filed June 5, 2012

On Appeal from the County Court at Law No. 4

Dallas County, Texas

Trial Court Cause No. CC-09-01241-D

MEMORANDUM OPINION

Before Justices Morris, Moseley, and Francis

Opinion By Justice Moseley

Citi Trust, Trustee of the Caney Living Trust, sued Takashi Soda to recover the balance due on a promissory note. Asserting the promissory note was forged by a beneficiary of the trust, Michael Caney (Caney), Soda filed a third-party action against Caney. A jury held against Citi Trust on its claims against Soda. Subsequently, Caney moved for summary judgment on Soda's claims against him, asserting both traditional and no-evidence grounds. The trial court granted Caney's motion, and eventually entered final judgment disposing of all claims, including Soda's claims against Caney. Soda appeals, presenting two issues: whether the trial court erred by granting Caney's motion for summary judgment and whether the trial court erred by denying Soda's motion for a new trial. The background and facts of the case are well-known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We affirm.

Each of Soda's issues includes sub-issues, which are not listed in his statement of issues presented for review. As explained herein, we need not reach the sub-issues because we conclude the trial court did not err by granting Caney's motion for summary judgment and a decision favorable to Soda on the sub-issues would not change that conclusion or impact our decision to affirm the trial court's judgment.

It is undisputed that Soda received $200,000 from Caney's step-grandmother, Fusako Caney, who was also a settlor of the Caney Living Trust. Soda maintains the money was a gift and asserts Caney forged a promissory note (the basis for Citi Trust's lawsuit) for $200,000 showing the Caney Living Trust as the payee. Soda alleged causes of action against Caney for abuse of process, fraud by non-disclosure, intrusion upon seclusion, defamation, and intentional infliction of emotional distress.

The trial court did not state whether it granted Caney's traditional or no-evidence motion for summary judgment. When the motion for summary judgment presents both no-evidence and traditional grounds, we first review the propriety of the summary judgment under no-evidence standards. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

We review no-evidence summary judgments de novo. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156-57 (Tex. 2004). When a party moves for summary judgment on no- evidence grounds, the party must state the elements as to which there is no evidence. The burden then shifts to the nonmovant to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact on those elements. Benners v. Blanks Color Imaging, Inc., 133 S.W.3d 364, 368 (Tex. App.-Dallas 2004, no pet.). If he fails to do so, the no-evidence summary judgment is properly granted. See id.

A. Abuse of Process

Caney's motion asserted there was no evidence he "made an illegal, improper, or perverted use of the process." See Preston Gate, LP v. Bukaty, 248 S.W.3d 892, 897 (Tex. App.-Dallas 2008, no pet.) (listing elements of abuse of process cause of action). Soda argues on appeal that "[b]y presenting the [promissory] note to Citi Trust and then subsequently testifying that he was not the forger, Caney made an improper use of existing, valid process by manipulating Citi Trust to bring suit against Soda." This is an argument Caney caused Citi Trust to sue him without cause, not that he somehow abused service of process in a case to which he was not a party. See generally id.; Martinez v. English, 267 S.W.3d 521, 528-29 (Tex. App.-Austin 2008, pet. denied). We conclude the trial court did not err in granting summary judgment in favor of Caney on Soda's abuse of process claim. See Tex. R. Civ. P. 166a(i); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).

B. Fraud by Non-Disclosure

Caney's motion also asserted no evidence existed showing he owed a duty to disclose material facts to Soda and, therefore, he could not have committed fraud by non-disclosure. See Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex. 1997); Myre v. Meletio, 307 S.W.3d 839, 843 (Tex. App.-Dallas 2010, pet. denied). Soda argued in response that Caney owed him a duty because "Caney . . . disclosed some facts, those being the existence of a note and the claim of authorship by Soda, but withheld the fact that he himself knew the true circumstances of the creation of the note and knew the note to be false." There is no evidence in the record that Caney made any disclosure to Soda; rather, Caney presented or disclosed the note to Citi Trust and Citi Trust presented the note to Soda for payment. Without a duty to disclose and an actual disclosure, the elements of fraud by nondisclosure are not satisfied. See Myre, 307 S.W.3d at 843. Soda cites no authority, nor have we found any, where a Texas court considered presentation of a debt to a third party who in turn presents the debt for payment to be a disclosure. We decline to do so now. We conclude the trial court did not err in granting Caney summary judgment on Soda's fraud by non-disclosure claim. See Tex. R. Civ. P. 166a(i); Sw. Elec. Power Co., 73 S.W.3d at 215.

C. Intrusion Upon Seclusion

To prevail on an intrusion upon seclusion claim, a party must show an intentional intrusion, physical or otherwise, upon his solitude, seclusion, or private affairs or concerns. See Robinson v. Brannon, 313 S.W.3d 860, 867 (Tex. App.-Houston [14th Dist.] 2010, no pet.) (citing Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993)) (listing elements of intrusion upon seclusion cause of action). The cause of action is "typically associated with either a physical invasion of a person's property or eavesdropping on another's conversation with the aid of wiretaps, microphones, or spying." Clayton v. Wisener, 190 S.W.3d 685, 696 (Tex. App.-Tyler 2005, no pet.).

Caney's motion challenged the intrusion upon seclusion claim on the basis there was no evidence he physically invaded Soda's property or eavesdropped on his conversations. In response, Soda argued the invasion requirement was raised by evidence that Caney went to Fusako Caney's house and viewed her financial records, including records showing her financial relationship with Soda; Soda asserted "Caney was eavesdropping in the private affairs of Fusako and Soda."

Soda cites no authority, nor have we found any, where a Texas court concluded a party suffered an intrusion upon his seclusion absent evidence of a physical invasion or eavesdropping. On the contrary, other courts concluded evidence of a physical invasion or eavesdropping was necessary to sustain a claim for intrusion upon seclusion. See, e.g., id. at 697; Wilhite v. H.E. Butt Co., 812 S.W.2d 1, 6 (Tex. App.-Corpus Christi 1991, no writ), overruled on other grounds, Cain v. Hearst Corp., 878 S.W.2d 577 (Tex. 1994); see also Cornhill Ins. PLC v. Valsamis, 106 F.3d 80, 85 (5th Cir. 1997) (applying Texas law).

Without evidence of a physical intrusion or eavesdropping on another's conversation with the aid of wiretaps, microphones, or spying, Soda's claim for intrusion upon seclusion fails. We conclude the trial court did not err in granting Caney summary judgment on that claim. See Tex. R. Civ. P. 166a(i); Sw. Elec. Power Co., 73 S.W.3d at 215.

D. Defamation

Without damage to Soda's reputation, Soda was not defamed. See Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (West 2005) (A statement is defamatory if it "tends to ... injure a living person's reputation and thereby expose the person to public hatred, contempt or ridicule, or financial injury or to impeach any person's honesty, integrity, virtue, or reputation...."). Caney's motion asserted there was no evidence he published a false statement about Soda or damaged Soda's reputation. While Soda argued the alleged forgery injured his reputation, the record does not include evidence supporting this claim. We conclude the trial court did not err in granting Caney summary judgment on Soda's defamation claim. See Tex. R. Civ. P. 166a(i); Sw. Elec. Power Co., 73 S.W.3d at 215.

E. Intentional Infliction of Emotional Distress

To recover damages for intentional infliction of emotional distress, a plaintiff must establish: (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe. Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000) (per curium). Caney's motion asserted, inter alia, that there was no evidence Soda suffered "severe emotional distress" as a result of Caney's alleged actions.

In response, Soda relied on his own affidavit and deposition testimony. His affidavit states:

[T]hese claims have caused me to have great difficulty sleeping because of worry. These claims have caused me to be tired as a result, and to have no energy. I feel great emotional distress because of these claims, which has also caused physical problems for me. I am anxious and uneasy most of the time and have problems with my stomach and digestion due to the stress of worrying about the false claims made . . . against me . . . I feel sick to my stomach from worry. Most of all however I have felt very depressed as a result of the claims. I have a feeling that I have lost trust in other people. Also, I worry a great deal that people may believe the false claim made against me that I would mistreat my good friend Fusako [Caney]. The claims made, all of which started with Mr. Caney and his lawyers, have caused me to lose my ability to enjoy my life to a great degree.
When asked about his emotional distress during his deposition, Soda testified he was depressed, the lawsuit by Citi Trust was "going to be [sic] affect the credibility of my restaurant's business, that kind of stuff." He confirmed he was not taking medication for depression.

Soda's errata sheet added "Loss of sleep" to his deposition testimony.
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Emotional distress is "all highly unpleasant mental reactions such as embarrassment, fright, horror, grief, shame, humiliation, and worry." GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 618 (Tex. 1999). "Severe emotional distress is distress that is so severe that no reasonable person could be expected to endure it." Id. A plaintiff alleging intentional infliction of emotional distress must prove he suffered more than worry, anxiety, vexation, embarrassment, or anger. Jenkins v. Jenkins, No. 05-98-01849-CV, 2001 WL 507221, at *2 (Tex. App.-Dallas May 15, 2001, pet. denied) (not designated for publication) (citing Villaseñor v. Villaseñor, 911 S.W.2d 411, 417 (Tex. App.-San Antonio 1995, no writ)); see also Bevers v. Gaylord Broad. Co., L.P., No. 05-01-0895-CV, 2002 WL 1582286, at *7 (Tex. App.-Dallas July 18, 2002, pet. denied) (not designated for publication) (emotional distress not severe when plaintiff's normal life not interrupted even though she took anti- anxiety medication); Regan v. Lee, 879 S.W.2d 133, 136-37 (Tex. App.-Houston [14th Dist.] 1994, no writ) (party who experienced anger, depression, and humiliation did not suffer severe emotional distress).

Soda did not present evidence that his alleged emotional distress rose to the level of being severe. He failed to provide evidence he suffered more than mere worry, anxiety, vexation, humiliation, embarrassment, or anger; the alleged emotional distress rendered him unable to function in his normal life; or he sought treatment from any kind of medical professional. Although Soda's argument on appeal relies exclusively on GTE Southwest to show his symptoms constituted severe emotional distress, the plaintiffs in GTE Southwest suffered symptoms so severe they sought medical treatment for their problems and were prescribed medication to alleviate their symptoms. GTE Southwest, Inc., 998 S.W.2d at 619. That was not the evidence before the trial court here. Because there was no evidence Soda's ailments were so severe that no reasonable person could be expected to endure them, the trial court did not err by granting Caney's motion for summary judgment on Soda's intentional infliction of emotional distress claim.

Concluding the trial court properly granted summary judgment on each of Soda's causes of action, we overrule Soda's first issue.

We need not consider any of Soda's remaining complaints, i.e., that the trial court erred by striking expert testimony, by striking medical records of Fusako Caney, and by failing to grant Soda's motion for new trial ("because the court refused to admit into evidence the affidavits of all six jurors who heard the trial of the above case. Further, the court refused to allow Soda the opportunity to obtain relevant evidence pursuant to the crime/fraud exception of the attorney-client privilege."). All of these arguments relate to Soda's ongoing attempts to show Caney forged the promissory note.

As our analysis of Caney's no-evidence motion for summary judgment shows, any additional evidence of the alleged forgery would not impact our analysis and conclusions. Thus, we conclude any error with respect to Soda's remaining complaints did not cause the rendition of an improper judgment or prevent Soda from properly presenting his case to this Court. See Tex. R. App. P. 44.1(a)(1)-(2). We overrule Soda's remaining issues.

For the reasons stated herein, we affirm the judgment of the trial court.

JIM MOSELEY

JUSTICE

100628F.P05

Court of Appeals Fifth District of Texas at Dallas JUDGMENT

TAKASHI SODA, Appellant

V.

MICHAEL CANEY, Appellee

No. 05-10-00628-CV

Appeal from the County Court at Law No. Four of Dallas County, Texas. (Tr.Ct.No. Cause No. CC-09-1241-D).

Opinion delivered by Justice Moseley, Justices Morris and Francis participating .

In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee Michael Caney recover his costs of this appeal from appellant Takashi Soda.

Judgment entered June 5, 2012.

JIM MOSELEY

JUSTICE


Summaries of

Soda v. Caney

Court of Appeals Fifth District of Texas at Dallas
Jun 5, 2012
No. 05-10-00628-CV (Tex. App. Jun. 5, 2012)
Case details for

Soda v. Caney

Case Details

Full title:TAKASHI SODA, Appellant v. MICHAEL CANEY, Appellee

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Jun 5, 2012

Citations

No. 05-10-00628-CV (Tex. App. Jun. 5, 2012)

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