Tiller v. McLure

• Decision Date: 08 May 2003
• Docket Number: No. 02-0136.,02-0136.
• Citation: 121 S.W.3d 709
• Parties: Billie H. TILLER, Petitioner, v. Barbara McLURE, Respondent.
• Court: Texas Supreme Court

121 S.W.3d 709

Billie H. TILLER, Petitioner, v. Barbara McLURE, Respondent.

No. 02-0136.

Supreme Court of Texas.

May 8, 2003.

Ken Slavin, Cynthia S. Anderson, Kemp Smith, LLP, Roy E. Kohn, El Paso, for petitioner.

Michael C. Crowley, Edward W. Dunbar, Dunbar Armendariz Crowley & Hegeman LLP, El Paso, for respondent.

PER CURIAM.

Barbara McLure sued Billie Tiller for intentional infliction of emotional distress based on Tiller's conduct as a party to two commercial construction contracts. The issue is whether there is legally sufficient evidence to support the jury's verdict in favor of McLure. The trial court granted Tiller's motion for judgment notwithstanding the verdict and rendered judgment that McLure take nothing. Finding some evidence to support the verdict, the court of appeals reversed the judgment notwithstanding the verdict, reduced the award of punitive damages in accordance with the statutory cap, and remanded to the trial court for rendition of judgment. 63 S.W.3d 72. We conclude that no evidence supports the jury's finding that Tiller's conduct was extreme and outrageous, and therefore McLure's claim fails as a matter of law. Accordingly, we reverse the court of appeals' judgment and render judgment that McLure take nothing.

In reviewing the record, we view the evidence in the light most favorable to Barbara McLure. See Brewerton v. Dalrymple, 997 S.W.2d 212, 214 (Tex.1999). Billie Tiller decided to establish a selfstorage business on property that he owned in El Paso. In August 1997, he executed two contracts with McLure Precast Corporation, a small construction company owned by Bill McLure and his wife Barbara McLure. The first contract called for construction of concrete shells, which were to be brought to the property, set up in rows, and used as bases for construction of 135 mini-warehouses. This contract was for $156,528. The second contract designated McLure Precast as the construction project manager, established a guaranteed maximum cost for the entire project of $425,570, and stated that the estimated management fee was $12,195. Subcontractors were to perform a large portion of the construction, including earth work, paving, overhead door installation, and painting. The sequencing of the work at the construction site was to be managed by McLure Precast. However, the various subcontractors were to contract directly with Tiller. In October 1997, Tiller borrowed $300,000 to finance the project.

In December 1997, shortly after work began at the construction site, Bill McLure was diagnosed with a malignant brain tumor. McLure was a civil engineer whose corporate duties included design work, engineering, and supervising construction. Due to McLure's illness, McLure Precast hired Doug Hansen in mid-December to serve as the on-site manager for Tiller's project. Hansen was an experienced construction supervisor. In addition, Barbara McLure assumed many of the duties that had traditionally been performed by Bill McLure. Before her husband's illness, Barbara McLure had generally performed only payroll, accounts payable, and other administrative activities for the corporation. The business documents related to Barbara McLure's duties were kept in a corporate office attached to the McLures' residence. Despite his worsening health, Bill McLure continued to work in a limited capacity on Tiller's project until early February. For several days in early February, McLure Precast failed to give the project the attention it deserved. However, by mid-February, Barbara McLure had assumed full responsibility for managing the project and was committed to finishing it in a timely and workmanlike manner.

On February 16, 1998, Tiller received a three-page letter from McLure Precast regarding the mini-warehouse project. The letter was signed by Barbara McLure in her capacity as president of the corporation. The letter began by advising Tiller that Bill McLure's medical condition had become very serious and he therefore would be unable to assist in the completion of the project. The remainder of the letter set forth a detailed plan to finish the project. In the letter, Barbara McLure stated that Jack McLure, Bill's son, had "agreed to provide his services as a construction consultant to me" and she invited Tiller to contact Jack McLure with any questions, comments, or concerns regarding the project. Jack McLure was partowner of Metalman, Inc., a large construction company located in Dallas. In the letter's final paragraphs, Barbara McLure stated:

I look forward to working with you on the completion of this project. Please understand that with Bill in his present condition, this is a most difficult time for me. Nevertheless, rest assured that McLure Precast Corporation will complete your project and maintain the fine reputation on which the firm was founded and built.

If you have any questions, comments or concern[s], please do not hesitate to contact me. If you cannot reach me at our office, [xxx-xxxx], or home [xxx-xxxx], you may reach me on my mobile phone at [xxx-xxxx].

Jack McLure testified that Tiller called Barbara McLure after receiving the February 16 letter and "raised hell with her" about the mini-warehouse project. On February 24, 1998, Jack McLure sent a second letter to Tiller. The letter, printed on Metalman, Inc. letterhead, stated in part:

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....

....

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 Thursday, February 26, 1998, and his funeral was scheduled for the next Monday. To honor Bill McLure's memory, Barbara McLure planned to shut down the mini-warehouse construction site for the entire day of the funeral. Tiller objected when Jack McLure advised him of Barbara McLure's plan, claiming incorrectly that the project was behind schedule. Although Tiller acknowledged that it would be appropriate for some of the construction workers to attend the funeral, he told Jack McLure that he would terminate the contracts if all construction activity ceased on the date of the funeral. Jack McLure informed Barbara McLure about Tiller's comments. Despite Tiller's threat to terminate the contracts, McLure Precast closed the construction site for the entire day of the funeral.

From the time he learned of Bill McLure's illness in December 1997 until construction ceased in March 1998, Tiller repeatedly telephoned Barbara McLure at her house regarding the mini-warehouse project. Barbara McLure testified that Tiller called her at home approximately sixty times during that period. Many of the calls occurred during non-business hours, including late in the evening, over the Christmas holidays, and once on a Sunday morning. In the numerous telephone calls, Tiller expressed dissatisfaction with the project's progress. Specifically, he complained that on-site workers were unproductive and that the project was behind schedule. He repeatedly threatened to terminate the contracts and take over the project. Tiller's tone during the telephone calls was consistently rude, demanding, and curt. Despite repeated requests to do so, Tiller never asserted any of his complaints in writing. The telephone calls required Barbara McLure to make approximately twenty-five unnecessary trips to the construction site.

Tiller was regularly slow to pay McLure Precast's invoices, including one that requested payment of $30,000 for charges that Tiller had improperly made on McLure Precast business trade accounts. McLure Precast finished construction on the mini-warehouse project in March 1998. Once the project was completed, Tiller stopped calling Barbara McLure and initially refused to meet with her to discuss final payment. In April 1998, Tiller obtained an additional $100,000 in financing for the project. Although he had sufficient funds available, Tiller refused to make the final payment of $36,958. In June 1998, when he finally agreed to meet with Barbara McLure, Tiller told her: "Honey, there is not going to be any more money." As a direct result of Tiller's failure to pay the remaining balance due on the contracts, Barbara McLure was forced to liquidate the corporation. Tiller's course of conduct left Barbara McLure nervous, upset, crying, and shaking, and also caused her stomach problems, insomnia, and weight loss.

Two separate lawsuits were subsequently filed against Tiller. McLure Precast Corporation sued Tiller for breach of contract, and Barbara McLure, in her individual capacity, filed this case against Tiller for intentional infliction of emotional distress. The breach of contract action is currently pending in state district court. In this case, Barbara McLure obtained a jury verdict in her favor for $500,000 in actual damages and $1.5 million in punitive damages. The trial court granted Tiller's motion for judgment notwithstanding the verdict. The court of appeals reversed. It concluded that there was some evidence of extreme and outrageous conduct because, despite his knowledge that Barbara McLure was susceptible to emotional distress, Tiller "engage[d] in a course of conduct that a...