Morgan v. Anthony

• Decision Date: 24 August 2000
• Docket Number: No. 99-1018,99-1018
• Citation: Morgan v. Anthony, 27 S.W.3d 928 (Tex. 2000)
• Parties: (Tex. 2000) Deborah Morgan, Petitioner v. Mack Anthony, Respondent
• Court: Texas Supreme Court

Page 928

27 S.W.3d 928 (Tex. 2000)

Deborah Morgan, Petitioner v.Mack Anthony, Respondent

No. 99-1018

IN THE SUPREME COURT OF TEXAS

August 24, 2000.

Rehearing Overruled October 26, 2000.

On Petition for Review from the Court of Appeals for the Ninth District of Texas

Per Curiam

Deborah Morgan sued Mack Anthony for intentional infliction of emotional distress.Anthony moved for summary judgment on the basis that there was no evidence that he acted intentionally, that his conduct was extreme or outrageous, or that Morgan suffered severe emotional distress.The trial court granted Anthony's motion, and the court of appeals affirmed.Because we hold that there is some evidence of the three elements of Morgan's cause of action that are at issue, we reverse the judgment of the court of appeals and remand this case to the trial court.

This Court adopted the Restatement's formulation of intentional infliction of emotional distress in Twyman v. Twyman, 855 S.W.2d 619, 621-22(Tex.1993) (adopting Restatement (Second) of Torts section 46(1965).We have held that to recover damages for intentional infliction of emotional distress, a plaintiff must establish that "(1)the defendant acted intentionally or recklessly; (2)the defendant's conduct was extreme and outrageous; (3)the defendant's actions caused the plaintiff emotional distress; and (4) the emotional distress suffered by the plaintiff was severe."Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644(Tex.1995).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.'"Twyman, 855 S.W.2d at 621(quoting Restatement (Second) of Torts section 46 cmt. d (1965)).

In reviewing the summary judgment record to determine if there was legally sufficient evidence to raise a fact question on the three elements of intentional infliction of emotional distress that Anthony raised in his motion, we consider the evidence in the light most favorable to Morgan, the nonmovant.SeeFlameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 834(Tex. App. Houston[1st Dist.]1999, no pet.)(holding that a trial court must grant a no-evidence summary judgment motion unless the nonmovant produces more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements);Tex. R. Civ. P. 166a(i) and cmt.The summary judgment evidence includes excerpts from two depositions of Morgan and her answer to an interrogatory.Generally, a party cannot rely on its own answer to an interrogatory as summary judgment evidence.SeeFisher v. Yates, 953 S.W.2d 370(Tex. App. Texarkana1997), pet. denied sub nom.Yates v. Fisher, 988 S.W.2d 730(Tex.1998)(per curiam)(noting that a non-moving party cannot use its own interrogatory answers as summary judgment evidence).However, in this case, Morgan was questioned in one of her depositions about her seven-page interrogatory answer that described in detail the events that are the basis for this suit, and the interrogatory answer was attached to her deposition as an exhibit.She affirmed in her deposition that everything contained in her interrogatory answer was true.The excerpts from her deposition about the interrogatory answer and the interrogatory answer itself were part of the summary judgment record.The interrogatory answer became competent summary judgment evidence when it became a deposition exhibit, Morgan affirmed in her deposition that it was correct, and she was subject to cross-examination about the assertions in her interrogatory answer.We therefore consider the facts recounted in the interrogatory answer, as well as Morgan's deposition testimony.

It is necessary in this case to recite the facts in some detail in order to describe adequately the basis for this suit.Morgan recounted that shortly after she left work one afternoon to go home, she began experiencing car trouble.Her workplace was in Colmesneil, Texas, but she lived in Jasper.She stopped to call her husband to tell him of her problem but could not reach him.She was able to get in touch with her mother and asked her mother to contact either her husband or her father and to send one of them to find her if she was not home in thirty minutes.As she continued toward her home on US Highway 190, the problems with her automobile worsened.She was no longer able to drive more than five miles per hour, so she began traveling on the shoulder.

As she was making her way, Mack Anthony, whom she had never before seen, pulled in front of her in his pickup.At that point, Morgan's vehicle died.Anthony got out of his truck, approached Morgan's car on the passenger side, and opened the door.He asked if she was having trouble, to which she responded yes, but she told Anthony that her husband, who was a mechanic, or her father was on the way to help her.She thanked Anthony and tried to shut her car door, but he held it open.Anthony then made a statement to the effect that Morgan's husband might not be "taking care of [her] in the car department" and implied that her husband might not be "taking care of her" in other areas of her life.Anthony then said that maybe he could "help [her] in another area."She replied no, that she was a happily married woman and asked Anthony to please let her shut the car door.Anthony responded that he did not live very far away and suggested that Morgan follow him so that he could fix her car "and anything extra that [she] needed."

Morgan continued her efforts to pull her car door closed, but Anthony continued to hold it open.She repeatedly asked him to let her shut her door, but he refused.During most of this exchange, Anthony was leaning into the car with one hand on the dashboard, and he stared between Morgan's legs and at her breasts.When he stepped back, with only one hand on the car door, Morgan was able to shut and lock it.Morgan made numerous attempts to restart her car as Anthony stood outside the passenger window saying things such as "come on baby, open the door."Morgan's car eventually did restart and she drove off, but she again could not get her car to go faster than five miles per hour.

Anthony got...