James v. Easton

• Decision Date: 13 June 2012
• Docket Number: No. 14–11–00053–CV.,14–11–00053–CV.
• Citation: 368 S.W.3d 799
• Parties: Carolyn C. JAMES, Appellant, v. Michael EASTON and Peter J. Riga, Appellees.
• Court: Texas Court of Appeals

368 S.W.3d 799

Carolyn C. JAMES, Appellant,

v.Michael EASTON and Peter J. Riga, Appellees.

No. 14–11–00053–CV.

Court of Appeals of Texas, Houston (14th Dist.).

May 15, 2012.

Rehearing Overruled June 13, 2012.

Kenneth A. Zimmern, Houston, for appellant.

Scott Rothenberg, Houston, for appellees.

OPINION

JEFFREY V. BROWN, Justice.

This is an appeal from a denial of a temporary injunction and a dismissal on special exceptions. Appellant Carolyn C. James sued appellees Michael Easton and Peter J. Riga for intentional infliction of emotional distress and tortious interference with a contract. At the core of this case are inappropriate messages Easton sent to James and the medical expert she retained in three unrelated cases. We affirm the trial court's denial of the application for temporary injunction, reverse the trial court's dismissal of James's claims based on special exceptions, and remand for further proceedings.

I

This suit arose out of several different ongoing proceedings concerning James's mother, who suffers from dementia. Two cases are pending in probate court, and one case is pending in the 61st District Court of Harris County. Easton has intervened in all three cases. James brought this suit separately in response to Easton's out-of-court behavior in these other cases. The Honorable Al Bennett was the presiding judge in this case and also presides over the other pending case in the 61st District Court.

Following his interventions into the other cases, Easton began to directly contact James and her medical expert, even though James was represented by counsel. Easton represented himself in these proceedings, and though he is not an attorney, he often sent written correspondence to James and her expert on Riga's letterhead. Riga is an attorney, as his letterhead makes clear. Riga personally appeared at a hearing for one of the underlying cases but is neither a party nor a party's attorney in any of those cases.¹

Dr. George Glass is James's medical expert in all three of the underlying cases, and Easton first approached him after a deposition in one of those cases. Easton grabbed Glass's necktie and put his hand on Glass's shoulder before asking the doctor to talk with him privately. When Glass refused, Easton took out his cell phone and snapped a picture of Glass. Shortly thereafter, Glass received a letter from Easton—on Riga's letterhead—asserting that Glass could be imprisoned for up to six months. Later communications to Glass from Easton threatened $100,000 in sanctions and repeatedly referred to the doctor as a “quack” and an “ass.” Glass testified that he felt harassed and threatened by Easton as a result of these communications.

Easton's interactions with James were even more inappropriate. He sent an e-mail message to James with the subject line “Coin Toss.” In its entirety, the body of the e-mail read

.......... whats the most you've ever lost in a coin toss?

.................... Call it—Friendo!

Attached to the e-mail was a picture of Javier Bardem's character from the movie No Country for Old Men. James had seen the movie and knew that Bardem's character, Anton Chigurh, was a murderer. In the movie, Chigurh would sometimes ask another character, “What's the most you've ever lost in a coin toss?” The other character's violent death, at Chigurh's hand, usually followed the question. James testified she felt threatened by the e-mail and “that [her] life would be on the line” if she continued to pursue the three underlying cases.

Less than a week later, Easton sent James another e-mail that included the following:

Attention, Probate Shoppers, the “blue light” special in Aisle 2 will end at midnight tomorrow, tick, tock, tick, tock. In the words of “Dirty Harry” Well, being that this is a Chapter 74 (Objection) Magnum, the world's most powerful “hand gun” (assignment) It can “blow your head clean off”—you've got to ask yourself this question: “do I feel lucky?”—well, do ya punk?. tick tock, tick tock.

James again felt threatened. She sued Easton and Riga, seeking an injunction. The case was transferred to the 61st DistrictCourt, where one of the underlying cases was pending. Easton and Riga filed special exceptions and moved to dismiss.

The trial court heard James's application for temporary injunction. James and Glass testified about the communications they received from Easton and their reactions to them. A second expert testified that Easton's e-mails “raise[d] the specter of an offense in Texas known as a ‘terroristic threat.’ ” At the close of James's case in chief at the injunction hearing, the trial court granted Riga's “motion for directed verdict” and denied James's application for injunctive relief. James appealed this ruling. James subsequently filed an amended petition alleging intentional infliction of emotional distress and tortious interference with the Glass–James contract. Easton and Riga both filed special exceptions, asserting that James's petition fails to state any claim under Texas law because complaints by one litigant about an opposing litigant's conduct in a lawsuit must be remedied in the lawsuit in which the conduct occurred and may not be the basis for independent tort claims. The trial court granted the special exceptions and dismissed all of James's claims. This appeal followed.²

II

James raises five issues on appeal: (1) it was error to grant the appellees' special exceptions; (2) the directed verdict in favor of Riga was impermissibly based solely on special-exceptions evidence; (3) dismissal on special exceptions does not prevent a plaintiff from re-filing, but the trial court's order implies it was made with prejudice; (4) in light of the outrageous nature of Easton's behavior, the trial court erred in denying the motion for temporary injunction; and (5) the trial court erred by failing to enforce the anti-contact rule and the Texas Rules of Civil Procedure against the appellees.

A

In her first issue, James attacks the dismissal on special exceptions. When, as in the case under review, a trial court dismisses a case upon special exceptions for failure to state a cause of action, we review that issue of law using a de novo standard of review. Filipp v. Till, 230 S.W.3d 197, 203 (Tex.App.-Houston [14th Dist.] 2006, no pet.). When reviewing a dismissal based upon special exceptions, we also must accept as true all material factual allegations and all factual statements reasonably inferred from the allegations set forth in the plaintiff's pleadings. Id. If a pleading states a cause of action, the trial court errs in dismissing based upon special exceptions. Id.

An attorney generally has immunity from claims by an opposing party based upon conduct the attorney undertook in the representation of a client, but this immunity does not apply to alleged torts based upon the attorney's fraudulent or malicious conduct. See Lackshin v. Spofford, No. 14–03–00977–CV, 2004 WL 1965636, at *3 (Tex.App.Houston [14th Dist.] Sept. 7, 2004, pet. denied) (mem. op.). The appellees did not assert this attorney immunity in their special exceptions, nor did they argue that this immunity should be expanded to apply to the claims involving pro se litigants or attorneys not representing a party. The appellees did not assert immunity at all. Instead, the sole basis for appellees' special exceptions is their assertion that James's petition fails to state any claim under Texaslaw because complaints by one litigant about an opposing litigant's conduct in a lawsuit must be remedied in the lawsuit in which the conduct occurred and may not be the basis for independent tort claims. If this assertion is incorrect, then the trial court erred in granting the special exceptions.³

The appellees have not cited, and research has not revealed, any case in which a court held that all complaints by one litigant about an opposing litigant's conduct in a lawsuit must be remedied in the lawsuit in which the conduct occurred and may not be the basis for independent tort claims. It cannot be said that, as a matter of law, one litigant can never assert a tort claim against an opposing litigant based upon the opposing litigant's conduct in the litigation. See Hunt v. Baldwin, 68 S.W.3d 117, 130–33 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (analyzing the merits of wrongful-execution and fraud claims asserted by judgment debtor against judgment creditors in lawsuit separate from the underlying litigation). Nor do we believe that the ability of the trial court in the underlying lawsuit to impose sanctions on litigants is a sufficient basis to support a rule disallowing all such claims. Indeed, if an attorney engages in fraudulent or malicious conduct in the course of representing his client, an opposing party may assert intentional tort claims against the attorney based upon this conduct. See Poole v. Houston & T.C. Ry., 58 Tex. 134, 137 (1882) (holding that attorneys acting on behalf of their clients are not shielded from liability for their fraudulent conduct because fraudulent acts are “entirely foreign to the duties of an attorney”); Lackshin, 2004 WL 1965636, at *3 (noting that, though attorneys owe no general negligence duty to opposing parties, they are still subject to liability to nonclients, including opposing parties, based on their fraudulent or malicious conduct, even if the attorneys' conduct was in the course of representing their client); Toles v. Toles, 113 S.W.3d 899, 911–12 (Tex.App.-Dallas 2003, no pet.) (holding that attorney who represented former husband in divorce action was not immune from claim of former wife alleging attorney aided and abetted a breach of fiduciary duty by the receiver in the underlying litigation); Querner v. Rindfuss, 966 S.W.2d 661, 666–70 (Tex.App.-San Antonio 1998, pet. denied) (finding attorney in probate litigation was not immune from liability for alleged conspiracy to engage in fraud); Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468, 472 (Tex....