Brown v. Shaffer

942 S.W.2d 162, 1997 Tex. App. LEXIS 1223, 1997 WL 112090
CourtCourt of Appeals of Texas
DecidedMarch 14, 1997
DocketNo. 06-96-00027-CV
StatusPublished

This text of 942 S.W.2d 162 (Brown v. Shaffer) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Shaffer, 942 S.W.2d 162, 1997 Tex. App. LEXIS 1223, 1997 WL 112090 (Tex. Ct. App. 1997).

Opinion

OPINION

GRANT, Justice.

Carolyn Anne Brown sued Dr. Vernon C. Shaffer for negligence and intentional infliction of emotional distress. Shaffer filed a motion for summary judgment. The trial court granted the summary judgment. Brown appeals the summary judgment on the intentional infliction of emotional distress cause of action only. She does not appeal the summary judgment on the negligence cause of action.

After a 1985 tubal ligation, Brown had a history of pubic abscesses, continued to have significant complaints, and was seen by Shaffer for dyspareunia, dysmenorrhea, and hy-permenorrhea. During the course of her treatment by Shaffer, Brown changed her mind several times about whether to have a hysterectomy.

August 24, 1992, Brown was seen for preoperative counseling for a hysterectomy. The morning of August 25, she arrived at the hospital. Shaffer visited with her prior to surgery. Shaffer contends that Brown was extremely hostile and very upset. Brown contends that she was merely a concerned patient. Shaffer cancelled the scheduled surgery.

Brown’s sole point of error is that the trial court erred in granting Shaffer summary judgment because there is ample evidence to raise a fact issue on each element of her cause of action. Although Brown’s point of [164]*164error is stated very broadly, she never mentions negligence in her brief and argues only that Shaffer was not entitled to a summary judgment on the intentional infliction of emotional distress cause of action. Thus, Brown waived appeal of the granting of summary judgment on her negligence cause of action. See Howell v. Murray Mortg. Co., 890 S.W.2d 78, 81 (Tex.App.-Amarillo 1994, writ denied). This court will review only the granting of summary judgment on the cause of action for intentional infliction of emotional distress.

A party moving for summary judgment has the burden of establishing both the absence of a genuine issue of material fact and the movant’s entitlement to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 28 (Tex.1990). A defendant movant can prevail by establishing conclusively against the plaintiff one factual element of each theory the plaintiff pleaded. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). In deciding whether there is a disputed issue of material fact precluding summary judgment, an appellate court views all evidence in the light most favorable to the nonmovant and resolves all doubts in his favor. Nixon v. Mr. Property Management, 690 S.W.2d 646 (Tex.1985). An appellate court will not consider evidence that favors the movant’s position unless it is uncontroverted. Great Am. Reserve Ins.Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). To obtain summary judgment, a defendant need not show that the plaintiff cannot succeed on any theory conceivable; he is only “required to meet the plaintiffs case as pleaded.” Cook v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751, 759 (Tex.1976). If any theory advanced in a motion for summary judgment supports the granting of summary judgment, a court of appeals may affirm, regardless of whether the trial court specified the grounds on which it relied. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623 (Tex.1996).

Paragraph four of Brown’s petition complains only about Shaffer’s act of negligently discontinuing a surgical procedure on her. Paragraph five states that based on the defendant’s actions in the foregoing paragraph, Brown suffered severe emotional distress. The only conduct on which Brown pleaded intentional infliction of emotional distress was the cancelling of the surgery, not the language Shaffer may have used.

As summary judgment proof, Shaffer attached affidavits of Dr. Stephen R. Brown and himself. Shaffer’s affidavit stated that when he came into Brown’s room the morning of the scheduled surgery, she had “refused a pre-operative procedure by the nurses,” she “was extremely hostile and very upset,” she “was very angry with her husband, indicated by screaming and throwing things at him,” and “some of her hostility was directed at [Shaffer].” Shaffer swore he cancelled Brown’s surgery because “her psychological condition did not evidence the acceptance necessary to proceed with such an operation.”

The first two paragraphs of Brown’s affidavit discussed what happened before the cancelling of the surgery. Her affidavit stated the following:

While in the pre-operating room, Dr. Shaffer came into the room and for no reason began cussing, yelling at me that I “had a bad attitude.” He yelled at me asking “what is your problem, you’re not cooperating with anyone here.” Lastly, he then told me that “I am not going to do your surgery today.” ... I had done nothing to antagonize Dr. Shaffer.

Her affidavit further stated that she did not refuse a pre-operative procedure but “merely asked if it was necessary,” that she “asked a few questions about what [she] could expect after the hysterectomy,” and that Shaffer’s conduct was unprovoked. The final paragraph of Brown’s affidavit stated that Shaffer’s affidavit was untrue and that there was no yelling-and-throwing argument between Brown and her husband.

Brown’s petition alleged a cause of action only for the cancellation of the surgery, not for Shaffer’s alleged cursing and yelling. Shaffer’s alleged cursing and yelling had no bearing on the cause of action Brown pleaded, and therefore were outside the scope of the pleadings and should not have been considered by the court in determining whether [165]*165to grant summary judgment, as the trial judge so found. After the trial judge granted summary judgment, Brown’s attorney asked for a trial amendment to expand the pleadings to include Shaffer’s cursing and yelling. His request was denied, and he did not appeal that denial. Therefore, we are bound by the trial court’s ruling.

An intentional infliction of emotional distress cause of action has the following four elements:

(1) the defendant acted intentionally or recklessly,
(2) the conduct was extreme and outrageous,
(3) the conduct caused the plaintiff emotional distress, and
(4) the distress was severe.

Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993). Shaffer’s grounds for summary judgment were (1) that Brown did not allege any facts to show that his actions were intentional or reckless; and (2) that as a matter of law, his conduct was not extreme or outrageous.

Proof of intent or recklessness requires a showing that the defendant intended to inflict severe emotional distress on the plaintiff. LaCoure v. LaCoure,

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Related

LaCoure v. LaCoure
820 S.W.2d 228 (Court of Appeals of Texas, 1992)
Twyman v. Twyman
855 S.W.2d 619 (Texas Supreme Court, 1993)
Cincinnati Life Insurance Co. v. Cates
927 S.W.2d 623 (Texas Supreme Court, 1996)
Washington v. Knight
887 S.W.2d 211 (Court of Appeals of Texas, 1994)
Haug v. Franklin
690 S.W.2d 646 (Court of Appeals of Texas, 1985)
Logan v. Mullis
686 S.W.2d 605 (Texas Supreme Court, 1985)
Texas Industrial Accident Board v. Industrial Foundation of the South
526 S.W.2d 211 (Court of Appeals of Texas, 1975)
Swilley v. Hughes
488 S.W.2d 64 (Texas Supreme Court, 1972)
Howell v. Murray Mortgage Co.
890 S.W.2d 78 (Court of Appeals of Texas, 1994)
Black v. Victoria Lloyds Insurance Co.
797 S.W.2d 20 (Texas Supreme Court, 1990)
Tarleton State University v. Rosiere
867 S.W.2d 948 (Court of Appeals of Texas, 1993)
Motsenbocker v. Potts
863 S.W.2d 126 (Court of Appeals of Texas, 1993)
Kemp v. Heffelman
713 S.W.2d 751 (Court of Appeals of Texas, 1986)
Cook v. Brundidge, Fountain, Elliott & Churchill
533 S.W.2d 751 (Texas Supreme Court, 1976)
Gross v. Davies
882 S.W.2d 452 (Court of Appeals of Texas, 1994)
State v. Mauritz-Wells Co.
175 S.W.2d 238 (Texas Supreme Court, 1943)

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Bluebook (online)
942 S.W.2d 162, 1997 Tex. App. LEXIS 1223, 1997 WL 112090, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-shaffer-texapp-1997.