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Torts No. 02-0136, 5/8/2003. Click here for the full text of this decision FACTS: 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. The court concludes 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. HOLDING: Reversed and rendered that McLure take nothing. Tiller’s most egregious action was his threat to terminate the contracts if the construction site was closed for the entire day of Bill McLure’s funeral. However, Tiller acknowledged that it would be appropriate for some of the construction workers to attend the funeral. In addition, a few weeks before, a legitimate basis had existed for Tiller’s concerns regarding the timely completion of the mini-warehouse project. Under the circumstances, Tiller’s comments regarding the closing of the construction site on the date of Bill McLure’s funeral, although callous and uncaring, do not rise to the level of extreme and outrageous conduct. Tiller’s telephone calls, although persistent and often insensitive given Bill McLure’s illness and eventual death, were never excessive on any one day, nor did Tiller consistently call Barbara McLure at inappropriate times. According to Doug Hansen, Barbara McLure often fielded Hansen’s calls regarding the mini-warehouse project in the evening. Although he repeatedly threatened to terminate the contracts, Tiller never physically threatened Barbara McLure or otherwise made threats unrelated to the contract. In addition, there is no evidence that he ever subjected Barbara McLure to severe verbal abuse by using vulgar or obscene language. While many of Tiller’s phone calls were unquestionably insensitive given the situation and his tone was always rude and curt, rude or insensitive behavior generally does not rise to the level of extreme and outrageous conduct. Natividad v. Alexsis Inc., 875 S.W.2d 695 (Tex. 1994). Moreover, to determine whether certain conduct is extreme and outrageous, the court considers the context and the relationship between the parties. This case involves two commercial construction contracts. As a corporate officer of McLure Precast, Barbara McLure was designated as a contact person for concerns and complaints relating to the $425,570 project. All Tiller’s calls, while numerous and unpleasant, related to the contracts. Although Tiller criticized the project, he never directly attacked Barbara McLure. Tiller’s calls focused on criticism of the project and demands related to timeliness and workmanship. While Tiller’s complaints and threats were self-centered and often unprofessional, they were related to an ordinary, albeit contentious, commercial contract dispute and do not rise to the level of extreme and outrageous conduct. And even if Tiller breached the contracts by refusing to make the final payment or breached other terms of the contracts, the mere fact that conduct violates a legal duty does not, standing alone, render it extreme and outrageous. Barbara McLure does not explicitly contend that a specific single act committed by Tiller was extreme and outrageous. Rather, she argues that Tiller’s entire course of conduct, viewed as a whole, was extreme and outrageous. The court of appeals recognized that “[a]lthough a single act, taken alone, may or may not rise to the level of ‘extreme and outrageous’ conduct, . . . it is possible that several acts taken together can amount to such harassment as to be more than petty oppression.” This court has previously held that a course of conduct should be evaluated as a whole to determine whether it was extreme and outrageous. In GTE Southwest Inc. v. Bruce, 998 S.W.2d 605 (Tex. 1999), three GTE employees were harassed for years by their supervisor’s regular abuse, humiliation and intimidation, which included persistent verbal and physical threats. The court concluded that, although occasional malicious and abusive incidents must often be tolerated in society, “once conduct such as that shown here becomes a regular pattern of behavior and continues despite the victim’s objection and attempt to remedy the situation, it can no longer be tolerated.” But it was not merely the regularity of the supervisor’s conduct that led the court to conclude that the conduct was extreme and outrageous as a matter of law; it was also its severity. The court stated, “[b]eing purposefully humiliated and intimidated, and being repeatedly put in fear of one’s physical well-being at the hands of a supervisor is more than a mere triviality or annoyance.” Similarly, in Household Credit Servs. Inc. v. Driscol, 989 S.W.2d 72 (Tex. App. – El Paso 1998, pet. denied), upon which the court of appeals in this case relied, the plaintiff recovered based on a daily pattern of obscenity-laden phone calls that on at least two occasions included bomb or death threats. Thus, the mere fact that Tiller engaged in an inappropriate course of conduct does not necessarily mean that his conduct was extreme and outrageous. Rather, for Tiller to be liable, the conduct itself, when viewed as a whole, must be “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.” Restatement (Second) of Torts �46 cmt. d (1965). Tiller’s actions from December 1997 through June 1998 were regularly insensitive, unreasonable or otherwise wrongful. However, even when viewed in its totality, Tiller’s course of conduct in this commercial contract dispute was not severe enough to constitute extreme and outrageous conduct. OPINION: Per curiam. Courts of Appeals – Civil Administrative/Government Law

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