                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          FEB 12 2003
                                TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 ZONA JOYCE STEFFEN,

             Plaintiff - Appellant,

 v.                                                     No. 01-7158
                                                    D.C. No. 01-CV-80-S
 ANITA ELAINE HELEMS; JAMES                           (E.D. Oklahoma)
 HELEMS; EVERETT LYNN
 BOLTON; JOYCE BOLTON,

             Defendants - Appellees.


                          ORDER AND JUDGMENT *


Before KELLY, Circuit Judge, BRORBY, Senior Circuit Judge, and MURPHY,
Circuit Judge.


I.    INTRODUCTION

      Plaintiff Zona Steffen (“Steffen”) sought compensatory and punitive

damages from Defendants Anita Elaine Helems, James Helems, Everett Lynn

Bolton, and Joyce Bolton (collectively, “Defendants”) for intentional infliction of

emotional distress resulting from the alleged loss of the love and affection of



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Steffen’s mother. Exercising diversity of citizenship jurisdiction pursuant to 28

U.S.C. § 1332, the district court granted summary judgment in favor of

Defendants. The court also granted Defendant Anita Helems and Defendant

James Helems’ (jointly, “Helems”) motions to suppress Steffen’s corrections to

her deposition and to lodge the original deposition with the court. This court has

jurisdiction under 28 U.S.C. § 1291 and affirms.

II.   BACKGROUND

      Steffen’s natural mother was the stepmother of Defendant Anita Helems

(“Anita”) and Defendant Everett Lynn Bolton (“Lynn”). In 1991, the mother and

her then husband, Steffen’s stepfather, created a joint trust which provided for

equal distributions among Steffen, Anita, and Lynn. The mother was adjudicated

incapacitated due to Alzheimer’s disease on November 21, 1996. In 1997, the

stepfather created a new trust into which he transferred the assets of the joint

trust. Steffen was not named as a residual beneficiary of the new trust. In

January 1999, the appointed guardian of the mother’s estate filed an action to

recover the assets that were transferred from the joint trust to the new trust. The

litigation was financed by Steffen.

      Thereafter, the relationship between Steffen and Defendants became

strained. Steffen alleges that Defendants began to engage in conduct intended to

interfere with her relationship with her mother. On February 5, 1999, Anita told


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Steffen that her mother and the stepfather did not want to see Steffen and that her

mother was afraid of Steffen. Anita also assisted the stepfather with seeking

protective orders against Steffen. In March 1999, Steffen traveled from

California to Oklahoma to visit her mother and stepfather. When Steffen arrived,

Anita was also at the home. The mother and stepfather told Steffen that she

couldn’t stay with them because of the trust litigation. When Steffen asked her

mother if she knew about the lawsuit, the mother responded, “What lawsuit?”

      Steffen frequently visited with her mother and maintained regular telephone

contact. However, Steffen claims Defendants would interfere with or impede the

visits with her mother. For example, Anita would often sit with Steffen’s mother

during the entire visit. In October 1999, Anita moved the mother and stepfather

into her home to live permanently. Anita, however, failed to inform Steffen that

her mother was residing with Anita. Furthermore, Anita refused to give Steffen

her telephone number. In one instance, Steffen encountered difficulty in

complying with court-ordered visitation arrangements because she did not have

the number. Also, Anita would allegedly cause Steffen’s mother to become

hostile and agitated just prior to the visits. Moreover, Steffen claims that during

the visits, Lynn and Anita would use an acoustical noise generator to disrupt

Steffen’s attempts to record the interactions with her mother, and James Helems




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(“James”) would selectively videotape only the visits during which Steffen’s

mother acted hostile toward Steffen.

       Anita would also make disparaging or negative comments about Steffen to

her mother or stepfather. These comments would cause the mother to act

aggressively toward Steffen. On one occasion, while at the dentist, Steffen’s

mother became hostile after Anita told the mother that Steffen wanted to have the

mother’s teeth pulled. Steffen also suspected Defendants had filed complaints

with the police alleging that Steffen was responsible for an injury to her mother.

III.   DISCUSSION

       The principal issue on appeal is whether the trial court erred in granting

Defendants’ motion for summary judgment. Applying the same legal standard

used by the district court, this court reviews the grant of summary judgment de

novo. Starr v. Pearle Vision, Inc., 54 F.3d 1548, 1552 (10th Cir. 1995).

Summary judgment is warranted “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). This court

views the evidence in the light most favorable to the party opposing the summary

judgment motion. Starr, 54 F.3d at 1552. However, if the opposing party “fails

to make a showing sufficient to establish the existence of an element essential to


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that party’s case,” summary judgment is appropriate. Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986).

      Oklahoma recognizes the tort of intentional infliction of emotional distress

as articulated in the Restatement (Second) of Torts § 46. Starr, 54 F.3d at 1558.

Under Oklahoma law, to establish a prima facie case of intentional infliction of

emotional distress, a plaintiff must show: (1) the defendant acted intentionally or

recklessly; (2) the defendant’s conduct was extreme and outrageous; (3) the

plaintiff actually experienced emotional distress; and (4) the emotional distress

was severe. Daemi v. Church’s Fried Chicken, Inc., 931 F.2d 1379, 1387 (10th

Cir. 1991).

      The trial court is responsible for initially determining “whether the

defendant’s conduct may reasonably be regarded as sufficiently extreme and

outrageous” to permit recovery. 1 Miller v. Miller, 956 P.2d 887, 901 (Okla.

1998); see also Restatement (Second) of Torts § 46 cmt. h (1965). To satisfy this

standard, the defendant’s conduct must be “so offensive ‘as to go beyond all

possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.’” Daemi, 931 F.2d at 1388 (quoting



      1
        Once the trial court has determined that reasonable persons may differ as
to whether the defendant’s conduct is extreme and outrageous, whether the
conduct is sufficiently extreme and outrageous to impose liability is a question for
the jury. Breeden v. League Servs. Corp., 575 P.2d 1374, 1377 (Okla. 1978).

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Restatement (Second) of Torts § 46 cmt. d). Extreme and outrageous conduct is

not merely “unpleasant examples of human behavior which we all must endure

from time to time,” but rather conduct that has “totally and completely exceeded

the bounds of acceptable social interaction.” Miller, 956 P.2d at 901.

      In granting summary judgment in favor of Defendants, the district court

determined that the actions of Defendants as alleged by Steffen did not rise to the

level of extreme and outrageous conduct required to prevail on an intentional

infliction of emotional distress claim. Steffen argues that in reaching its

conclusion the district court failed to consider the affidavit of Stephen Read,

M.D. In his affidavit, Dr. Read declared that the mother’s negative feelings and

behavior toward Steffen, the similarity of feelings about Steffen held by Anita

and others, and the tendency for the mother’s negative feelings toward Steffen to

abate after a short time alone with Steffen, “compellingly suggest” that the

mother’s hostility toward Steffen likely resulted from actions and influence of

Anita and others.

      After reviewing the record, including Dr. Read’s affidavit, this court

concludes that Steffen has failed to demonstrate that Defendants’ conduct was

sufficiently “extreme” or “outrageous.” Steffen does not distinguish the actions

of Defendants as any more egregious than what would be expected in a family

dispute. Furthermore, during her deposition testimony, Steffen admitted that


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some alleged conduct by her primary antagonist, Anita, was based on speculation.

Also, despite the alleged interference, Steffen was able to visit with her mother on

a frequent basis. Finally, Dr. Read’s conclusions were reached without an

independent evaluation of the mother and based in part upon discussions with

Steffen and her attorney. In his affidavit, Dr. Read merely affirms Steffen’s

position that the attitudes of Defendants could affect the mother’s feelings and

behaviors. Dr. Read’s affidavit provides no additional support for Steffen’s

allegations that Defendants’ conduct was extreme or outrageous.

      This court AFFIRMS the district court’s grant of summary judgment in

favor of Defendants. 2

                                       ENTERED FOR THE COURT



                                       Michael R. Murphy
                                       Circuit Judge




      2
        This court need not resolve whether the trial court erred in suppressing
Steffen’s deposition corrections. Even with the corrections incorporated into her
testimony, Steffen has failed to demonstrate that Defendants’ conduct was
sufficiently extreme and outrageous to support a claim for intentional infliction of
emotional distress. Because the corrected deposition testimony does not alter this
court’s conclusion that summary judgment was appropriate, it is not necessary to
address whether the corrections were allowed under Rule 30(e) of the Federal
Rules of Civil Procedure.

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