Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 72nd District Court Lubbock County, Texas
Trial Court No. 2015-517-621, Honorable Ruben G. Reyes,
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Quinn Chief Justice
Finley, pro se, appeals from a final judgment denying him
recovery against his ex-wife, Beverly May, upon his claim of
intentional infliction of emotional distress. He contended that
she caused him such distress by her efforts to alienate their
two children from him. Her efforts were purportedly
manifested through her interference with his possessory
rights regarding the children and her utterance of false
accusations about him. The suit was tried to the court.
three of appellant's issues relate to the statute of
limitations or the timeliness of his suit. That is, they
relate to the trial court's decision to pretermit his
attempt to recover for May's acts occurring before the
18th birthday of the two children; however, it allowed him to
prosecute his suit to the extent he sought redress for
misconduct occurring thereafter. Finley apparently construed
the decision to mean that his suit for intentional infliction
of emotional distress was untimely or barred by the statute
of limitations in part. So, his appellate issues relate to
the applicability of the two-year limitations period, the
time at which his claim accrued, and the ability of May to
prove the affirmative defense due to her purported discovery
abuses. We affirm.
to the resolution of this appeal are two conclusions of law
entered by the trial court in its findings of fact and
conclusions of law. They are as follows: (1)
"Intentional Infliction of Emotional Distress is a
'gap-filler' cause of action, i.e. an intentional
infliction of emotional distress [cause of action] is
available only when no other alternative cause of action is
available to plaintiff"; and (2) "[t]he Court
concludes that as a matter of law, Plaintiff is precluded
from proceeding on his claim for Intentional Infliction of
Emotional Distress regarding events occurring prior to June
2, 2011 for Emily Finley and September 28, 2013 for Caitlin
Finley as Plaintiff had other recognized theories of recovery
available to him." In issuing those conclusions, the
trial court implicated the law as espoused in Standard
Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62
(Tex. 1998), and its progeny.
Standard Fruit, our Supreme Court observed that
"intentional infliction of emotional distress is a
'gap-filler' tort that should not be extended to
circumvent the limitations placed on the recovery of mental
anguish damages under more established tort doctrines."
Id. at 68. Its "purpose is to supplement
existing forms of recovery by providing a cause of action for
egregious conduct 'that its more established neighbors in
tort doctrine would technically fence out.'"
Id. (quoting Towards a Jurisprudence of Injury:
The Continuing Creations of a System of Substantive Justice
in American Law, 5-11 (Report to the American Bar
Association from the Special Committee on the Tort Liability
System, 1984)). As such, it "has its own
boundaries" and was "never intended to supplant or
duplicate existing statutory or common-law remedies."
Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816
(Tex. 2005). Given the limited nature of the judicially
created cause of action for emotional distress, it generally
is unavailable "[w]here the gravamen of a plaintiffs
complaint is really another tort." See Hoffmann-La
Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 447-48 (Tex.
2004). This is true even though the other causes of actions
or remedies "do not explicitly preempt the tort [of
intentional infliction of emotional distress], [because]
their availability leaves no gap to fill." See
Creditwatch, 157 S.W.3d at 816.
be seen from Standard Fruit, Hoffman-LaRoche, and
Creditwatch, the restrictions placed on the
availability of an action for emotional distress have nothing
to do with the statute of limitations. In other words, being
a gap-filler cause of action that is unavailable where other
remedies already exist is a topic quite distinct from the
question of whether a plaintiff initiated a timely suit
alleging the cause of action. So, the trial court's
rejection of Finley's claim for emotional distress as
described in conclusions of law one and two are not based on
the timeliness of Finley's suit. It did not reject the
claim because Finley did not timely pursue it; it rejected
the common law tort because it did not serve to fill a gap
left vacant by other common law or statutory causes of
his arguments pertaining to the timeliness of his suit or
whether he sued within the time dictated by the statute of
limitations are irrelevant.
are obligated to liberally construe the briefs of pro se
litigants. See Delgado v. Combs, No. 07-11-00273-CV,
2012 Tex.App. LEXIS 8610, at *5 (Tex. App.-Amarillo Oct. 15,
2012, no pet.) (mem. op.). And, despite couching his argument
within the framework of limitations, we nonetheless see where
he questions whether provisions in Chapter 42 of the Family
Code do or should supplant his claim for emotional distress.
Apparently, one of the "recognized theories of recovery
available to" Finley, according to the trial court, was
found in Chapter 42 of the Family Code.
common law jurisprudence long ago recognized that a parent
has a "tort cause of action when someone entices away or
harbors his minor child." See Silcott v.
Oglesby, 721 S.W.2d 290, 292 (Tex. 1986). That common
law tort claim was codified later within Chapter 42 of the
Family Code. See In re J.G.W., 54 S.W.3d 826, 830
n.2 (Tex. App.-Texarkana 2001, no pet.). Per § 42.002(a)
of that Code, a "person who takes or retains possession
of a child or who conceals the whereabouts of a child in
violation of a possessory right of another person may be
liable for damages to that person." Tex. Fam. Code Ann.
§ 42.002(a) (West 2014). Furthermore, the legislature
defined "possessory right" to mean "a
court-ordered right of possession of or access to a child,
including conservatorship, custody, and visitation."
Id. § 42.001(2). The damages recoverable
included, among other things, those attributable to
"mental suffering and anguish incurred by the plaintiff
because of a violation of the order." See id.
his extended exposition attempting to explain why Chapter 42
did not displace his claim for emotional distress, Finley
failed to cite legal authority. Nor did he cite us to the
record. Both were required by Texas Rule of Appellate
Procedure 38.1 (i). See Tex. R. App. P. 38.1(i)
(stating that the brief must contain a clear and concise
argument for the contentions made, with appropriate citations
to the record and authorities); see also Ford v.
State, No. 07-02-00200-CR, 2003 Tex.App. LEXIS 3727, at
*7-8 (Tex. App.-Amarillo Apr. 30, 2003, no pet.) (not
designated for publication) (stating that the failure to cite
to supporting authority and the record constitutes inadequate
briefing and results in waiver of the issue). Nevertheless,
he did suggest that the statute was inadequate. Unlike the
common law tort for emotional distress, the statutory tort
neither provided redress for the panoply of his ex-wife's
supposed bad acts nor would it have prevented her from
committing them, in his view.
the matter of prevention, we observe that pursuing a claim
for emotional distress after the children have grown and
May's purported misconduct supposedly achieved the
intended effect hardly serves to prevent his ex-wife from
engaging in that conduct. It hardly serves to stop her from
achieving the supposed goal she desired, that being
alienation of the children. Indeed, it would seem that, if
Finley wanted to stop May from alienating the children
through interfering with his access to them during their
developmental years, he would have pursued avenues available
at the time, such as that in § 42.002. The latter,
coupled with other judicial remedies such as contempt and
modification afforded under the Family Code, would have
allowed him to protect if not enhance his court-ordered
access to his children, assuming, of course, that she engaged
in misconduct. So, that aspect of Finley's argument
regarding prevention rings hollow.
the adequacy of redress for the panoply of May's alleged
misdeeds, being able to enhance one's damage recovery
under a claim of emotional distress is not justification for
ignoring the mandate in Standard Fruit,
Hoffman-LaRoche, and Creditwatch. See Galindo v.
Snoddy,415 S.W.3d 905, 909 (Tex. App.-Texarkana 2013,
no pet.) (stating that "[t]he Texas Supreme Court has
rejected the argument that a greater potential for damages
(such as through an award of exemplary damages) permits suit
for intentional infliction of emotional distress when
statutory remedies for the tortious conduct exist). Rather,
the focus lies on the gravamen of plaintiff's complaint
(that gravamen being the conduct about which he complains)
and whether it is encompassed within another statutory or
common law means of relief. See Waffle House, Inc. v.
Williams,313 S.W.3d 796, 808-09 (Tex. 2011) (holding
that the claim of emotional distress was unavailable because
the tort was not "independent of her sexual harassment
claim, " and that "[b]ecause the [human rights act]
provides a remedy for the same emotional damages caused by
essentially the same actions, there is no remedial gap in
this case and thus no support for the award of damages under
the intentional-infliction claim"). The gravamen of
Finley's complaint here implicates the same course of
conduct sought to be redressed via § 42.002, that being
one's interference with another's possessory rights.
May allegedly engaged in a course of conduct which denied ...