TERESA MARIE KOEHLAR, Appellant v. HERB D. VEST, Appellee

AFFIRMED, in part, and REVERSED and RENDERED, in part; Opinion Filed
March 22, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-05-01366-CV
No. 05-05-01710-CV
............................
TERESA MARIE KOEHLAR, Appellant
V.
HERB D. VEST, Appellee
.............................................................
On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. 04-01877-K
.............................................................
MEMORANDUM OPINION
Before Justices Whittington, Bridges, and Lang
Opinion By Justice Lang
        In cause no. 05-05-01366-CV, Teresa Marie Koehlar appeals the trial court's order granting summary judgment in favor of Herb D. Vest and dismissing Koehlar's claim for intentional infliction of emotional distress. In cause no. 05-05-01710-CV, Koehlar appeals the trial court's permanent sealing order, which requires the Dallas County District Clerk to seal the records in this case.
        In a single brief, Koehlar raises twenty-two points on appeal that generally argue three issues: (1) the trial court erred when it granted Vest's motion for summary judgment, dismissing her claim for intentional infliction of emotional distress; (2) the trial court erred when it granted Vest's motion for summary judgment because Texas Rule of Civil Procedure 166a violates the open courts provision of the Texas Constitution, the due process clause of the United States Constitution, and the right to a trial by jury guaranteed by both the United States and Texas Constitutions; and (3) the trial court erred when it granted Vest's motion to seal the records of this case.
        We conclude the trial court did not err when it granted Vest's motion for summary judgment. The trial court's summary judgment is affirmed. Because Vest has conceded the issues relating to the trial court's permanent sealing order, we reverse the trial court's permanent sealing order and render an order unsealing the records of this case. We issue this memorandum opinion because the issues in this appeal are well-settled. See Tex. R. App. P. 47.4.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        In 1996, Koehlar met Vest through Sarah Norton, a matchmaker and mutual acquaintance. Koehlar and Vest began a romantic relationship. From 1996 to 1999, Koehlar and Vest dated non- exclusively. In early 2000, they stopped dating for a brief period of time. However, they resumed their relationship in May of 2000. Then, in the summer of 2001, Vest terminated their relationship. During this period, Koehlar alleges Vest became engaged to Hillary Razo. However, Vest did not marry Razo. Instead, he again resumed his relationship with Koehlar in December of 2001. A few weeks later, Vest proposed marriage to Koehlar.
        After they became engaged, Koehlar and Vest bickered constantly. Eventually, they sought counseling in an attempt to salvage their relationship. However, on May 26, 2002, Koehlar claims she ended her relationship with Vest by way of a telephone conversation.
        During their relationship, Vest assisted Koehlar financially because she had been unemployed since 1997. From 1998 to 2002, Vest wrote Koehlar checks totaling $181,298.40. Also, Vest gave Koehlar cash, jewelry for which he paid approximately $1.7 million, and a 2002 Mercedes Benz SL500 which he purchased for $97,000.
        After Koehlar ended her relationship with Vest, she continued to email and telephone him. Vest, who was then engaged to another woman, requested that Koehlar stop contacting him. Koehlar ignored his requests and continued to email Vest after he was married and after she brought this lawsuit against him.
        In Koehlar's lawsuit against Vest, she alleged: (1) intentional infliction of emotional distress; (2) breach of contract for failing to repurchase the jewelry he gave her; (3) breach of contract relating to the purchase of a house, the investment of money in Koehlar's “dog collar” business, the provision of a weekly monetary allowance, and the failure to pay off Koehlar's credit card debt; and (4) fraud for failing to perform under a support agreement. After Koehlar's deposition was taken, Vest moved for summary judgment. In his motion for summary judgment, Vest argued, in part, that as a matter of law, summary judgment should be granted on Koehlar's claim for intentional infliction of emotional distress because Vest's alleged conduct was not extreme and outrageous, and her claim was barred by the statute of limitations. Koehlar filed her third amended original petition, which withdrew all of her claims, except her claim for intention infliction of emotional distress. The trial court granted Vest's motion for summary judgment and dismissed Koehlar's claim with prejudice. Also, the trial court granted Vest's motion to seal the records of the case.
II. SUMMARY JUDGMENT
 
        In issues one through eight, Koehlar argues the trial court erred when it granted Vest's motion for summary judgment, dismissing her claim for intentional infliction of emotional distress. In issues one through six, Koehlar claims: (1) there is a genuine issue of material fact regarding whether Vest's conduct was extreme and outrageous; and (2) the trial court failed to consider her peculiar susceptibility to emotional distress, Vest's course of harassing conduct, and Vest's conduct as a whole. In issues seven and eight, Koehlar contends her claim for intentional infliction of emotional distress is not barred by the statute of limitations. Vest responds that summary judgment was proper because, as a matter of law, his conduct was neither extreme nor outrageous, and Koehlar's claim for intentional infliction of emotional distress is barred by the statute of limitations.
A. Standard of Review
 
        The standard for reviewing a traditional summary judgment is well-established. See Sysco Food Servs. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); First Union Nat'l Bank v. Richmont Capital Partners I, L.P., 168 S.W.3d 917, 923 (Tex. App.-Dallas 2005, no pet.). An appellate court reviews a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Provident Life and Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); First Union, 168 S.W.3d at 923. When reviewing a motion for summary judgment, the appellate court takes the nonmovant's evidence as true, indulges every reasonable inference in favor of the nonmovant, and resolves all doubts in favor of the nonmovant. Provident Life, 128 S.W.3d at 215; First Union, 168 S.W.3d at 923. When a trial court's order does not specify the grounds for its summary judgment, an appellate court must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. Provident Life, 128 S.W.3d at 216; First Union, 168 S.W.3d at 923.
B. Applicable Law
 
        To prove intentional infliction of emotional distress, a plaintiff must establish: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of the defendant caused the plaintiff emotional distress; and (4) the emotional distress was severe. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). Whether a defendant's conduct may be regarded as extreme and outrageous is a question of law. See Gaspard v. Beadle, 36 S.W.3d 229, 237 (Tex. App.-Houston [1st Dist.] 2001, pet. denied).
        In a claim of intentional infliction of emotional distress, the nature of the conduct must be considered. Twyman, 855 S.W.2d at 621. Insensitive or rude behavior does not amount to outrageous behavior. See Gaspard, 36 S.W.3d at 238. Similarly, mere insults, indignities, or other trivialities do not rise to the level of extreme and outrageous conduct. Id. Rough language and occasional acts that are inconsiderate and unkind cannot be regarded as extreme and outrageous. See id. Further, while occasional malicious and abusive incidents should not be condoned, it is only when such conduct becomes a regular and continuous pattern of behavior, that it will rise to the level of extreme and outrageous conduct. See id.
        In determining whether the defendant's conduct was extreme and outrageous, courts consider the context and the relationship between the parties. See Toles v. Toles, 45 S.W.3d 252, 261 (Tex. App.-Dallas 2001, pet. denied). For example, married couples share an intensely personal and intimate relationship so when discord arises, it is inevitable the couple will suffer emotional distress, often severe. See Toles, 45 S.W.3d at 261 (citing Twyman, 855 S.W.2d at 627 (Phillips, C.J., concurring and dissenting)). As a result, a spouse claiming intentional infliction of emotional distress must bring forth evidence of some conduct that brings the dispute outside the scope of an ordinary marital dispute and into the realm of extreme and outrageous conduct. See Toles, 45 S.W.3d at 261-62. In the context of married couples, courts have found a spouse's conduct extreme and outrageous when that conduct was accompanied by physical violence. See Toles, 45 S.W.3d at 261 (evidence showed husband verbally and physically abused wife). Similarly, as a matter of law, an attorney's behavior was not extreme and outrageous and did not amount to an actionable claim of intentional infliction of emotional distress, where: (1) the attorney had a sexual relationship with his former client; (2) the client was emotionally and financially vulnerable; (3) during the relationship, the attorney told her that he loved her, would marry her, and take care of her; (4) after the relationship ended, the attorney sent her a bill for his legal services; and (5) as a result, she suffered weight gain, nausea, lack of sleep, headaches, clinical depression, and attempted to commit suicide. See Gaspard, 36 S.W.3d at 233, 238.
C. Application of the Law to the Facts
 
        In her third amended original petition, Koehlar alleged Vest engaged in the following extreme and outrageous conduct: (1) Vest “would occasionally tease and cajole [Koehlar] about sex with multiple partners and attempted to interest [her] in such activities” and made “comments about his sexual relations with other women, including prostitutes and lesbians”; and (2) Vest faked an engagement with Razo to get Koehlar to accept his marriage proposal. Also, Koehlar alleged Vest had knowledge of her susceptibility and increasing emotional frailty because he “trapped [her] into revealing her thoughts, feelings, and susceptibilities to [his] own psychologist/consultant, whom [he] was seeing concurrently, using his own counseling sessions to glean insights into the weakness of [Koehlar] which [] Vest could later exploit.” Koehlar claimed that as a result of Vest's conduct:
 
[she] suffered repeated bouts [of] severe depression, repeatedly eradicated self- esteem, repeatedly destroyed self-confidence, repeated thoughts of suicide, and repeated attempts of suicide, feelings of worthlessness, hopelessness at any thought of being a successful wife or a competent mother, mental anguish, panic attacks, radical fluctuation in physical well-being, such as rapid weight loss or gain, paranoia, sleeplessness, social agoraphobia, crying spells, difficulty in eating, use and possible dependence on mood-control drugs, loss of hair, hives, nightmares, anxiety and stress, among othere [sic] swiorders [sic] and symptoms of emotional distress.
 
        Vest moved for summary judgment on Koehlar's claim of intentional infliction of emotional distress. He argued that as a matter of law, his conduct was not extreme and outrageous and the statute of limitations barred Koehlar's claim.
        There is no doubt the record reflects Koehlar was unhappy after she ended her relationship with Vest. First, on May 12, 2002, two weeks before Koehlar claims she ended their engagement during a telephone conversation, Koehlar sent Vest an email that stated, in part:
 
I am moving forward with my life. You have done a great deal for me financial [sic] and I appreciate it. I have enough money to pay bills for the next 6 months. I appreciate the offer to lend me money, but feel this would only prolong our situation and cause more pain. . . . For me I need to grieve the death of our relationship. I don't know how long, but I known [sic] God is with me and I will be all right. . . . I had hope [sic] we might be able to put down the pass [sic] and pick up a future by simply dating. That if love was there we would find our way to each other again. I see that is not possible. I am sorry.
 
Second, on August 27, 2002, Koehlar sent Vest an email that stated, in part:
 
When I meet [sic] you I loved your boyish charm. I enjoy your conversations. You treated me with kindness. You seem [sic] to be interested in my heart and my mind. You were fun and a great lover. . . . As for professional help I will except [sic] your offer for assistance. Now that I know the truth I don't think I will be in need of long term care to help me get over you. I feel at peace and freed. . . .
 
Third, on October 30, 2003, after Vest's marriage, Koehlar sent him an email stating, in part:
 
The day of your wedding I overdosed. Lori came over with the police. They want to put me in Parkland. Scott said I have post traumatic stress disorder, Abused women [sic] syndrome, and sever [sic] depressions. . . . The only thing I wanted was for you to hold me so tight. To believe in me and keep me safe. I can do ok for a while and then something triggers my emotions and I am back in the moment. I can't take it, I can't function at all and when I finally come out of it days later it is a mess the water is off or the electric. The dogs are starved. I am filthy.
 
Finally, on November 18, 2003, a few days after Vest's marriage, Koehlar sent him an email stating, in part:
 
[I] am not going to let go. I am anger. . . . No one believes in your marriage.
 
 
 
They think you are sick to marry a girl that could be your granddaughter. Scott even said it was irony that you didn't trust me but you could trust someone half your age. What goes around comes around. When this goes bust, you will feel the hurt and pain you left me with. God help you!
 
 
 
You really think when you are 70 she will be there? You have a stroke, she will take care of you. What were you thinking, or better yet what part of your anatomy were you thinking with?
 
 
 
Maybe I am healing. I think I have moved from grief to anger. . . .
 
        This email correspondence reflects Koehlar's emotions turned to outrage as to Vest's conduct only when he married another woman over a year and a half after she ended their relationship. See Gaspard, 36 S.W.3d at 237 (plaintiff apparently did not consider defendant's conduct extreme or outrageous until he ended relationship and sent her an invoice for his legal work). Also, during her deposition, Koehlar stated Vest never hit her and she has not alleged that Vest has ever threatened her with physical violence. See Toles, 45 S.W.3d at 261 (evidence wife verbally and physically abused by husband extreme and outrageous in marriage context). Even if Vest engaged in the conduct alleged, while his behavior may have been occasionally malicious or abusive, as a matter of law, his conduct was neither extreme nor outrageous. See id. at 236-38.
        We conclude the trial court did not err when it granted Vest's motion for summary judgment because, as a matter of law, his conduct did not rise to the level required to support a claim of intentional infliction of emotional distress. See id. Koehlar's issues one through six are decided against her. Because we must affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious, we need not address Koehlar's seventh and eight issues, which argue the trial court erred when it granted summary judgment because her claim for intentional infliction of emotional distress is not barred by the statute of limitations.
II. SUMMARY JUDGMENT NOT UNCONSTITUTIONAL
 
        In issues nine through fourteen, Koehlar argues the trial court erred when it granted Vest's motion for summary judgment because Texas Rule of Civil Procedure 166a violates the open courts provision of the Texas Constitution, the due process clause of the United States Constitution, and the right to a trial by jury guaranteed by both the United States and Texas Constitutions. Vest responds that summary judgment is constitutional.         Summary judgment proceedings have long been recognized in the law and this procedure does not deny a party the right to have a remedy by due course of law in open court. See Lattrell v. Chrysler Corp., 79 S.W.3d 141, 149 (Tex. App.-Texarkana 2002, pet. denied). The summary judgment rule has been in effect since 1950 and courts have consistently upheld its validity under the due process clause. See id. at 150. Also, summary judgment under Texas Rule of Civil Procedure 166a does not deprive a party of the constitutional right to a jury trial. See Fidelity & Deposit Co. v. United States, 187 U.S. 315, 319-21 (1902) (summary judgment does not violate Seventh Amendment); Wyche v. Works, 373 S.W.2d 558, 561 (Tex. Civ. App.-Dallas 1963, writ ref'd n.r.e.) (where no genuine issue of material fact); Lattrell, 79 S.W.3d at 150-51 (discussing Texas Rule of Civil Procedure 166a(i)).
        It is well-settled that summary judgment does not violate the open courts provision of the Texas Constitution, the due process clause of the United States Constitution, or the right to a trial by jury guaranteed by both the United States and Texas Constitutions. Accordingly, we conclude the trial court did not err when it granted Vest's motion for summary judgment.
        Koehlar's issues nine through fourteen are decided against her.
III. PERMANENT SEALING ORDER
 
        In issues fifteen through twenty-two, Koehlar argues the trial court erred when it granted Vest's motion to seal the records of this case. Vest has withdrawn his request for a sealing order because he feels the trial court's permanent sealing order “serves as more of a distraction to the merits of this appeal than is warranted by the benefit it provides.” As a result, we do not review issues fifteen through twenty-two on the merits.
        We decide issues fifteen through twenty-two in Koehlar's favor because Vest has conceded these issues.
IV. CONCLUSION
 
        The trial court did not err when it granted Vest's motion for summary judgment, dismissing Koehlar's claim of intentional infliction of emotional distress. The trial court's summary judgment is affirmed.
        Vest has conceded the issues relating to the trial court's permanent sealing order. The trial court's permanent sealing order is reversed and an order is rendered unsealing the records of this case.
 
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
051366f.p05