Bailey v. Gulf State Util. Co.

• Decision Date: 12 October 2000
• Parties: (Tex.App.-Beaumont 2000) RICHARD BAILEY AND LINDA BAILEY, Appellants v. GULF STATES UTILITIES COMPANY AND ENTERGY CORPORATION, Appellees NO. 09-00-157 CV
• Court: Texas Court of Appeals

Page 713

27 S.W.3d 713 (Tex.App.-Beaumont 2000)

RICHARD BAILEY AND LINDA BAILEY, Appellants v. GULF STATES UTILITIES COMPANY AND ENTERGY CORPORATION, Appellees

NO. 09-00-157 CV

In The Court of Appeals Ninth District of Texas at Beaumont

Submitted August 31, 2000

Decided October 12, 2000

On Appeal from the 60th District Court Jefferson County, Texas Trial Cause No. B-147,852

Before Walker, C.J., Burgess and Stover, JJ.

OPINION

RONALD L. WALKER, Chief Justice

This is an appeal from the granting of a summary judgment. The sole point of error, which the appellants divide into five sub-points, contends the trial court erred in granting summary judgment.

In 1993, Richard Bailey and Linda Bailey filed a suit for an injunction, alleging Gulf States Utilities threatened to disconnect their electricity for non-payment of a disputed bill. A supplemental petition requested damages for mental anguish arising from causes of action for oppressive conduct, negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and breach of duty of good faith and fair dealing. The Baileys also amended their petition to add Entergy Corporation as the successor in interest to Gulf States Utilities.

Entergy Gulf States, Inc., f/k/a Gulf States Utilities Company ("GSU") and Entergy Corporation ("Entergy") filed a "no evidence" motion for summary judgment. See Tex. R. Civ. P. 166a(i). The motion challenged each cause of action separately. The Baileys filed a response that attached rules of the Public Utility Commission, an affidavit by the Baileys and testimony before the PUC by Karen R. Johnson, the President of Entergy Gulf States, Inc. Then the Baileys amended their petition to add a cause of action for deceptive trade practices. See Tex. Bus. & Com. Code Ann. § 17.46(b)(5),(7),(12) and (23) (Vernon Supp. 2000). The trial court granted the defendants' interlocutory summary judgment on the claims for negligent infliction of emotional distress, intentional infliction of emotional distress, breach of duty of good faith and fair dealing, and the claims relating to merger of GSU and Entergy.

GSU addressed the Baileys' DTPA claim in a second motion for summary judgment, challenging the Baileys' status as consumers and alleging electricity is not a "good or service" under the DTPA. Entergy did not join the motion for summary judgment. The Baileys' second response added an affidavit supporting their status as consumers and the state of electricity as a good or of its provision as a service. The trial court granted summary judgment on all claims. The Baileys appealed.

With the exception of the DTPA claim, judgment was granted solely upon "no evidence" motions for summary judgment. Tex. R. Civ. P. 166a(i). In a "no evidence" summary judgment appeal, we must review the evidence in the light most favorable to the non-movants, disregarding all contrary evidence and inferences; the summary judgment is improperly granted if the non-movants counter with more than a scintilla of probative evidence to raise a genuine issue of material fact. Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 432 (Tex. App.--Houston [14th Dist.] 1999, no pet.); Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex. App.-Houston [1st Dist.] 1999, no pet.). Judgment on the DTPA claims was granted upon a motion based on both Rule 166a(i) and 166a(c). Under the traditional standard, the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movants will be taken as true; and every reasonable inference must be indulged in favor of the non-movants and any doubts resolved in their favor. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex. 1985).

The Baileys moved to Florida in 1994, terminating their electric service with GSU and making the issue of injunctive relief moot. The disputed bill was paid by a guarantor who did not join this litigation. Mental anguish is the only damage alleged to have been sustained by the Baileys.

The motion alleged the appellees were entitled to summary judgment on the Baileys' claims for negligence and negligent infliction of emotional distress because the tort for negligent infliction of emotional distress is not acknowledged in Texas. The Baileys do not raise any error regarding these claims. See Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993).

In their first sub-point, the Baileys argue that "oppressive conduct" is a distinct cause of action ignored by the trial court in the summary judgment but recognized by the Supreme Court in Southwestern Gas & Elec. Co. v. Stanley, 70 S.W.2d 413 (Tex. 1934). In Stanley, the utility company cut off electricity to the customer's residence based upon non-payment of a disputed bill on a separate account for the customer's business. Actual damages were awarded by the jury and that award was not challenged on appeal. The only issue before the Supreme Court was whether the award of exemplary damages was justified. Id. at 414. The court held, "When a public service company turns off or disconnects its service to coerce the payment of an unauthorized demand, the consumer may recover punitive damages where the circumstances justify it." Id. at 415.¹ Stanley stands for the proposition that "oppressive conduct" will justify an award of exemplary damages, but does not recognize "oppressive conduct" as a separate tort. Sub-point "a" is overruled.

Sub-point "b" contends, "GSU breached a duty of good faith and fair dealing with its customers by failing to follow § 23.45 of the rules and regulations of the Texas Public Utility Commission regarding disputed bills by collecting the disputed bill from a guarantor without resolution of the dispute with resulting damages to the appellants."

As grounds for summary judgment on the cause of action for breach of duty of good faith and faith dealing, the motion urged: 1) there was no evidence of a special relationship between GSU and the Baileys; 2) GSU's conduct did not constitute a breach of duty; and 3) the Baileys suffered no compensable harm. Stanley recognized that a public utility has a duty to supply electricity that is independent of its duties under its contract with its customer. Id. 70 S.W.2d at 415. Of course, GSU did not interrupt the Baileys' supply of electricity. We need not decide whether a violation of PUC Rule § 23.45(i)² (advising the customer of the complaint procedures of the commission and concerning payment of portion of disputed bill) will support a cause of action in the absence of disconnection of service, because the Baileys do not challenge an independent basis for summary judgment: that the Baileys suffered no compensable harm.³

Assuming the Baileys' point of error is a general challenge to the granting of summary judgment, our review is still limited to the arguments raised in their brief. See Malooly Bros. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970); San Jacinto River Authority v. Duke, 783 S.W.2d 209, 209-10 (Tex. 1990); Pena v. State Farm Lloyds, 980 S.W.2d 949, 959 (Tex. App.--Corpus Christi 1998, no pet.)(appellants arguing under a general point of error must challenge each of the grounds for the summary judgment and present at least some argument on appeal). Because the trial court granted summary judgment, properly or improperly, on a ground which the Baileys do not challenge on appeal, sub-point "b" is overruled.

Sub-point "d" contends there is a fact issue "whether or not the overall conduct of GSU in circumventing the law and ignoring § 23.45 of the rules and regulations of the Texas Public Utility Commission regarding collection of disputed bills constituted an intentional infliction of emotional distress upon appellants with resulting damages." The elements of intentional infliction of emotional distress are: 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 suffered by the plaintiffs was severe. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). The appellees moved for judgment on the cause of action for intentional infliction of emotional distress on the following grounds: 1) no evidence of intent to cause severe emotional distress and 2) no evidence that the Baileys suffered severe emotional distress. Emotional distress includes 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.

The Baileys' brief does not identify the evidence that raises a fact issue on the elements challenged by the appellees, other than to refer us to their pleadings and responses. Their entire argument addresses the second element of the tort, outrageous conduct, but that is not the element upon which the appellees obtained the summary judgment.⁴ The appellees would be entitled to judgment regardless of the viability of the fact issue argued on appeal. Because the trial court granted summary judgment on grounds which the Baileys do not challenge on appeal, sub-point "d" is overruled.

Sub-point "c" urges the case presents a fact issue "whether or not GSU committed a deceptive trade practice against its consumers-appellants by intentionally ignoring § 23.45 of the rules and regulations of the Texas Public Utility Commission pertaining to collection of disputed bills with resulting damages to appellants." The appellees alleged they were entitled to summary judgment on the Baileys' DTPA claims because electricity is not the basis of their DTPA claim, therefore, the Baileys were not "consumers," and...