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Finley v. May

Court of Appeals of Texas, Seventh District, Amarillo

November 28, 2017

STEPHEN FINLEY, APPELLANT
v.
BEVERLY MAY, APPELLEE

         On Appeal from the 72nd District Court Lubbock County, Texas Trial Court No. 2015-517-621, Honorable Ruben G. Reyes, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          MEMORANDUM OPINION

          Brian Quinn Chief Justice

         Stephen 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.[1] 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.

         All 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.

         Pertinent 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.

         In 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.

         As can 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 action.

         Consequently, his arguments pertaining to the timeliness of his suit or whether he sued within the time dictated by the statute of limitations are irrelevant.

         Yet, we 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.

         Texas 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. § 42.006(a)(2).

         Amid 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.

         Regarding 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.

         As for 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 ยง 42.002, that being one's interference with another's possessory rights. May allegedly engaged in a course of conduct which denied ...


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