McLure v. Tiller

• Decision Date: 25 October 2001
• Docket Number: No. 08-00-00182-CV,08-00-00182-CV
• Citation: 63 S.W.3d 72
• Parties: (Tex.App.-El Paso 2001) BARBARA McLURE, Appellant, v. BILLIE H. TILLER, Appellee
• Court: Texas Court of Appeals

Page 72

63 S.W.3d 72 (Tex.App.-El Paso 2001)

BARBARA McLURE, Appellant, v. BILLIE H. TILLER, Appellee.

No. 08-00-00182-CV

Court of Appeals of Texas, El Paso

October 25, 2001

Rehearing Overruled January 2, 2002.

Appeal from 34th District Court of El Paso County, Texas (TC# 98-2721). [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Panel No. 4 Barajas, C.J., Larsen, and McClure, JJ.

OPINION

SUSAN LARSEN, Justice

In this intentional infliction of emotional distress case, Barbara McLure appeals from the trial court's judgment n.o.v. We reverse the trial court's judgment n.o.v., order entry of judgment in accordance with the jury's verdict on noneconomic damages, and reform the jury's award of exemplary damages to $500,000.

Facts

In August 1997, Billie Tiller contracted with McLure Precast Corporation to build 135 storage units in El Paso, Texas. McLure Precast was wholly owned and operated by Bill and Barbara McLure, husband and wife.

In December 1997, during construction, Bill McLure was diagnosed with a malignant brain tumor. The McLures shared this health information with Tiller. Almost immediately after being diagnosed, Bill began radiation treatment and had a shunt implanted to drain fluid from his brain. Although Bill continued to actively work on Tiller's project through December, the corporation also hired Doug Hansen, an experienced construction supervisor, to act as on-site supervisor.

On February 16, 1998, Barbara McLure sent a letter to Tiller, informing him that Bill's condition had worsened, that the corporation would nevertheless complete Tiller's project, that Hansen would continue as on-site project superintendent, and that J.V. McLure, Bill's son (who owned his own construction company in Dallas) was available to address any concerns that Tiller might have. She also asked Tiller to refrain from asking Hansen to make any changes in the work, to perform any extra work, or to change the work schedule. McLure asked Tiller to refrain from giving orders or directions to the workmen on the site. Also on February 16, J.V. McLure sent Tiller a cordial letter on his business letterhead, offering to provide his services to McLure Precast to insure completion of the project, including engineering, technical and management assistance, and even offering to have his corporation, MetalMan, Inc., act as surety. He concluded by stating, "[b]y working together, we can complete your project quickly, maintain the budget and keep your property free from liens."

After learning that Bill McLure was ill, Tiller began making unnecessary telephone calls to the McLure's home, asking for things that he already had, and complaining about aspects of the project. His tone during these calls was rude and demanding, even though he knew he was calling the family home during a time of great anxiety. Among other things, his complaints were that the project was behind schedule, that he was suffering lost rents although he had no certificate of occupancy, and that he needed duplicates of invoices which Barbara knew she had sent him. Whenever Tiller called, he was rude and curt. These calls left Barbara McLure nervous and upset. Tiller's calls continued through the holidays into January and February of 1998. About a week before Bill McLure died, Tiller called the McLure home on a Sunday morning, demanding to speak to Barbara and making numerous complaints. When Barbara returned home from the hospital that morning, learned from her daughter that Tiller had called again, and saw his list of concerns, she broke down, shaking and crying. Barbara refused her family's request to get a restraining order against Tiller because she was afraid he would use that as evidence that McLure Precast was not doing its job. Despite his myriad verbal grievances about the job, Tiller never put a single complaint about the project in writing.

On February 24, J.V. McLure again wrote to Tiller. In relevant part, this letter read:

Every day I hear reports of you complaining to many people about your project and the services McLure Precast Corporation is providing you with. We are very concerned with the project and McLure's reputation. If you have any legitimate complaints, we want to identify them and act upon them.

We ask that you review your contract with McLure Precast Corporation. That agreement sets forth notice requirements and all other terms and conditions that govern the project. Phone calls to Barbara McLure and her children on Sunday morning voicing complaints is not per the contract and in view of my Dad's condition, I find it to be disgusting.

Also, please review the time of completion requirements as stated in the agreement. We find it very difficult to understand your complaints concerning time and performance when the project is on schedule. Your complaint that you are suffering from lost rent is absurd. No units may be rented until the entire project is complete and the City of El Paso has issued a certificate of occupancy.

. . .

If you have any questions, comments or concerns, please feel free to contact me. Call collect if you like. If you have legitimate complaints, please make them in writing and in accordance with the contract. I am thanking you in advance for refraining from any more nasty phone calls or outbursts with members of my family at a most difficult time. (Emphasis in original).

Bill McLure died on February 26, 1998. Tiller threatened to terminate the contract if McLure Precast closed for the day so that its employees could attend Bill's funeral.

After Bill McLure's death, Tiller continued his calling campaign to the McLure home until the project was complete. Among other things, he threatened to charge McLure Precast for repairs to his Caterpillar track loader. He threatened to take over management of the project and terminate the contract because Bill McLure had died. He ordered certain materials from Jobe Concrete and Sun City Construction, charged them to McLure's account, and then failed to pay the almost $30,000 owed.

McLure Precast finished the storage unit construction on schedule, and in a competent, workmanlike way. Once McLure Precast's work under the contract was done, Tiller's aggressive phone calls ceased and indeed he avoided Barbara McLure, refusing to meet with her to discuss $36,957 he owed on the contract. He refused to make an invoiced payment for management services because Bill McLure had died. Tiller admitted this refusal at trial, even though his contract was with a corporation which had hired an on-site supervisor and whose surviving corporate principal was devoting all her resources to his project. It is uncontroverted that when she met with him to discuss payment in June, Tiller told McLure, "Honey, there's no more money." He told her this even though his credit line for construction projects with Bank of the West had been increased to $400,000 in April 1998.

J.V. McLure sent Tiller a final letter in June 1998. After expressing disappointment that Tiller would not see Barbara McLure to discuss settling the amounts owed under the contract, he wrote:

Not long ago, I cautioned you that not paying your bill might cause you to end up in a courtroom with Mrs. McLure. Your response was for me to let her know, 'She was not going to be in court with a virgin.'

In 1999, an earthmoving contractor named Kyle McCardle visited Tiller to discuss business. During their conversation, McCardle asked if Mrs. McLure had filed a lawsuit against him. McCardle testified that Tiller "kind of reared back in his chair and he said, 'well, she wouldn't dare do that.' He said that if she tried--if she tried to sue him that he would drag her ass back and forth from Dallas to court so many times it would break her financially." McCardle testified that upon hearing this "I was stunned because I know--I mean, she's a widow. She finished the job, and I knew he had rented out all the spaces. It was a good job."

Because of Tiller's failure to pay the amounts owed under the contract, McLure could not pay her employees and subcontractors. She used her credit card to make payroll. Because Tiller had not paid the money he owed McLure Precast, the corporation had no capital with which to work on future projects. According to family members, the corporation's failure caused Barbara severe distress. She was forced to sell personal property and McLure Precast's assets to meet payroll. Ultimately, Barbara McLure had to liquidate the business, sell her house, and move in with her son.

Barbara McLure's daughter, Deborah Williams, testified that Barbara's stress caused by Tiller's conduct was separate and apart from the stress caused by Bill's medical condition and death. Barbara did not have time to grieve the loss of her husband because she was too busy working on the project. At the time of trial, Barbara was still affected by Tiller's conduct in that her personality had changed and she was still having trouble making decisions or concentrating on the task at hand. Williams stated that Barbara McLure now lacked the motivation and drive to work hard that she used to possess. She testified that Tiller's conduct caused her mother to suffer severe emotional distress.

Barbara filed suit against Tiller for intentional infliction of emotional distress.¹ A jury answered affirmatively that Tiller had intentionally inflicted emotional distress upon McLure, and awarded her $250,000 in past mental anguish, $250,000 in future mental anguish. It also found by clear and convincing evidence that Tiller had acted with malice, and awarded $1,500,000 as exemplary damages. Tiller filed his motion for judgment n.o.v., arguing that McLure had failed to prove, as a matter of law, that Tiller acted intentionally or recklessly; and that Tiller's conduct was extreme and outrageous. The trial court granted Tiller's motion and entered a take-nothing judgment.

Standards of Review

Judgment...