Date: 07-27-2012

Case Style: Daniel Gomez v. Ron Brackett

Case Number: 05-11-01038-CV

Judge: Molly Francis

Court: Texas Court of Appeals, Fifth District on appeal from the 101st Judicial District Court, Dallas County

Plaintiff's Attorney: Daniel Gomez, pro se

Defendant's Attorney: Dan D. McClain, Herald, Farish & Hughes, Arlington, Texas

Description: Daniel Gomez appeals the trial court's judgment granting a directed verdict in favor of appellees Ron Brackett and Rose Rocha on his intentional infliction of emotional distress claim. On appeal, Gomez argues (1) the trial court lacked personal and subject matter jurisdiction over appellees' counterclaims against him and his girlfriend, Amy Dill, (2) the evidence negates appellees' right to judgment, (3) the evidence establishes his right to judgment as a matter of law, and (4) appellees' “criminal counterclaim constitutes a judicial admission that the appellees' conduct was extreme and outrageous as a matter of law.” We conclude Gomez's issues lack merit. We affirm the trial court's judgment.

Briefly, Gomez signed a six-month lease to live in Thunderbird Apartments in Irving, Texas in February 2009. Brackett owned the apartments, and Rocha was the apartment manager. After about two months, Gomez's girlfriend, Amy Dill, moved into Gomez's apartment. Over the next several months, the police were called to Gomez's apartment several times on disturbances; in fact, Gomez himself called the police about Dill. Rocha told Gomez that Dill could not live in his apartment. When Gomez refused to make Dill leave, Rocha told Gomez to vacate the apartment. Gomez refused, and over the next several months, Rocha filed four eviction complaints against Gomez. She lost the first three cases. In the fourth case, Rocha obtained a judgment evicting Gomez from the apartment and ordering him to pay money damages. In the meantime, Gomez sued Rocha and Brackett alleging several causes of action in connection with the eviction attempts. Ultimately, Gomez dropped all claims except intentional infliction of emotional distress. A jury was selected and heard evidence. After Gomez presented his case, the trial court granted a directed verdict in appellees' favor. Gomez, representing himself without counsel, appealed.

In his first and fourth issues, Gomez asserts the trial court lacked personal and subject matter jurisdiction over appellees' counterclaims against him and Amy Dill. In his fifth issue, Gomez asserts appellees' “criminal counterclaim” constituted a judicial admission that appellees' conduct was extreme and outrageous. Although it is not entirely clear from his brief, it appears that Gomez is asserting that appellees brought “criminal” counterclaims against him for “pimping his girlfriend Amy Dill” and against Dill for engaging in prostitution. We have reviewed the record in this case, and in particular the filings by appellees, and nothing supports Gomez's assertion. Instead, the record shows appellees presented evidence regarding Dill that led to their demand that Gomez vacate the premises. Accordingly, these issues have no merit.

In his third issue, Gomez argues the evidence “conclusively establishes [his] right to judgment as a matter of law.” Initially, we note a directed verdict in favor of a defendant is proper when “a plaintiff fails to present evidence raising a fact issue essential to the plaintiff's right to recovery” or when “the plaintiff admits or the evidence conclusively establishes a defense to the plaintiff's cause of action.” Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). Thus, on appeal, Gomez need only show that he presented evidence raising a fact issue on each element of his cause of action to warrant reversal.

To recover damages for intentional infliction of emotional distress, a plaintiff must establish that (1) the defendant acted intentionally and recklessly; (2) the defendant's conduct was extreme and outrageous; (3) the defendant's actions caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. Hoffman-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004).

Extreme and outrageous conduct is conduct “'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.'” Id. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Id. It is for the court to determine, in the first instance, whether a defendant's conduct was extreme and outrageous. Id. But when reasonable minds may differ, it is for the jury, subject to the court's control, to determine whether, in the particular case, the conduct was sufficiently extreme and outrageous to result in liability. Id.

Here, Gomez's issue fails to direct this Court to some evidence to support each element of his cause of action. For example, Gomez asserts Rocha's conduct was “extreme and outrageous” “because Rocha took the law into her own hands and in effect convicted Gomez of the crime of 'pimping.'” He asserts Rocha then punished him for the crime by demanding immediate possession of Gomez's apartment. The record does not support his contention. Rather, the record shows Rocha filed civil complaints to have Gomez evicted. Properly using available legal means to achieve a result is not “extreme and outrageous” conduct.

Moreover, Gomez has not cited this Court to any evidence of severe emotional distress; rather, he asserts he was dealing with “a grieving and dying mother” during the time that eviction proceedings were initiated and that “[n]o reasonable person should expect anyone to endure the prospect of losing his/her home while dealing with issues of dying, death and the grieving process without the expectation that he/she would not suffer 'severe emotional distress.'”

“Severe emotional distress” means distress so severe that no reasonable person could be expected to endure it without undergoing unreasonable suffering. Blanche v. First Nationwide Mortg. Corp., 74 S.W.3d 444, 454 (Tex. App.-Dallas 2002, no pet. ). The plaintiff must show more than mere worry, anxiety, vexation, embarrassment or anger. Id. Other than his conclusory statements in his brief, he directs us to no evidence, objective or otherwise, of unreasonable suffering. Because Gomez has not shown that he raised a fact issue on each element of his cause of action, we conclude the trial court did not err in granting a directed verdict. We overrule the third issue. Our disposition of this issue makes it unnecessary to address his second issue.

In their brief, appellees assert Gomez has filed a frivolous appeal. To the extent they are requesting us to impose sanctions against Gomez, we decline their request.

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See: http://www.5thcoa.courts.state.tx.us/files/05/recent/111038F.HTM

Outcome: We affirm the trial court's judgment.

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