                         NUMBER 13-13-00511-CV

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


MICHAEL W. STAGGS,                                                        Appellant,

                                          v.

THOMAS SIMPER AND DEBBIE SIMPER,                                          Appellees.


                    On appeal from the 25th District Court
                         of Lavaca County, Texas.


                         MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Rodriguez and Longoria
            Memorandum Opinion by Justice Rodriguez
      Appellant Michael W. Staggs appeals from a judgment rendered by the 25th

District Court of Lavaca County, Texas, in favor of Debbie Simper. The jury found Staggs

liable on Debbie’s claim of intentional infliction of emotional distress and awarded her

damages of $10,000. The jury did not find Debbie or co-appellee Thomas Simper liable
on Staggs’s claims of conversion, negligence, and gross negligence. Staggs raises five

issues on appeal challenging the legal and factual sufficiency of the jury’s findings. We

reverse and render, in part, and affirm, in part.

                                                I.    BACKGROUND1

        This case arises out of the shooting of Staggs’s mixed Alaskan Malamute-

Timberwolf dog, Cheyenne. The undisputed facts in this case are as follows: Thomas

shot Cheyenne in the head three times at close range while Cheyenne was tied up on his

property. As a result of Cheyenne’s death, Staggs brought suit against the Simpers

alleging conversion, negligence, gross negligence, and intentional infliction of emotional

distress.       The Simpers counter-claimed against Staggs for assault, conversion,

negligence, gross negligence, and intentional infliction of emotional distress. 2

        After the close of evidence both Staggs and the Simpers submitted jury questions

for conversion, negligence, gross negligence, and intentional infliction of emotional

distress.3 The jury did not find for Staggs on his claims against the Simpers. It also

found against the Simpers on all of their claims against Staggs except on Debbie’s

intentional infliction of emotional distress claim.4 The jury awarded Debbie $10,000 as

damages to compensate her for her emotional distress.


         1 Because this is a memorandum opinion and the parties are familiar with the facts, we will not

recite them here except as necessary to advise the parties of the Court's decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.

        The Simpers’ counter-claim was for damages arising out of the death of their dog, Puppy, and
        2

subsequent events, addressed below.

       3 Essentially, each question was submitted twice: once as to the Simpers and once as to Staggs.

The Simpers also asserted a claim for assault against Staggs.

        4   The Simpers did not file an appellees’ brief and did not file a cross-appeal.

                                                       2
       Staggs now challenges the legal sufficiency of the jury’s finding that he intentionally

inflicted emotional distress on Debbie and the factual sufficiency of the evidence

supporting the jury’s “no” answer to his causes of action for conversion, negligence, and

gross negligence.

                               II.     STANDARD OF REVIEW

       A.     Legal-sufficiency standard

       In reviewing the legal sufficiency of the evidence, we must consider the evidence

in the light most favorable to the fact-finder's decision and indulge every reasonable

inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.

2005). “The final test for legal sufficiency must always be whether the evidence at trial

would enable reasonable and fair-minded people to reach the verdict under review.” Id.

at 827. A legal-sufficiency review, in the proper light, must credit favorable evidence if

reasonable jurors could, and disregard contrary evidence unless reasonable jurors could

not. Id. at 827. The jury is the sole judge of witnesses' credibility, and it may choose to

believe one witness over another; we may not impose our own opinion to the contrary.

Id. at 819. Because it is the jury's province to resolve conflicting evidence, we must

assume that jurors resolved all conflicts in accordance with their verdict if reasonable

human beings could do so. Id.

       When a party attacks the legal sufficiency of an adverse finding on an issue for

which it did not have the burden of proof, it must demonstrate that there is no evidence

to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983).

Such a no-evidence challenge will be sustained when “(a) there is a complete absence


                                              3
of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving

weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove

a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes

the opposite of the vital fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.

2003) (internal quotations omitted).

       B.     Factual-sufficiency standard

       In a factual-sufficiency review, we must examine both the evidence supporting and

contrary to the judgment. See City of Keller, 168 S.W.3d at 822; Dow Chem. Co. v.

Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam); Plas–Tex, Inc. v. U.S. Steel Corp.,

772 S.W.2d 442, 445 (Tex. 1989). Here, too, the jury is the sole judge of witnesses'

credibility, and it may choose to believe one witness over another; we may not impose

our own opinion to the contrary. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d

757, 761 (Tex. 2003).

       When a party attacks the factual sufficiency of an adverse finding on an issue on

which it has the burden of proof, it must demonstrate on appeal that the adverse finding

is against the great weight and preponderance of the evidence. Dow Chem. Co., 46

S.W.3d at 242. After considering and weighing all of the evidence, we can set aside a

verdict only if the evidence is so weak or if the finding is so against the great weight and

preponderance of the evidence that it is clearly wrong and unjust. Id.

                 III.   STAGGS’S LEGAL SUFFICIENCY CHALLENGE TO THE
                 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS FINDING

       In his first issue, Staggs asserts that the evidence was legally insufficient to support

a finding that he intentionally inflicted emotional distress on Debbie because there was

                                              4
no evidence to support two elements of her cause of action, i.e., that his conduct was

outrageous and that Debbie suffered severe distress as a result of such conduct.

       A.     Intentional Infliction of Emotional Distress Law

       To prevail on a claim for the intentional infliction of emotional distress, Debbie had

to prove by a preponderance of the evidence that: (1) Staggs acted intentionally or

recklessly; (2) his conduct was extreme and outrageous; (3) his actions caused her

emotional distress; and (4) the emotional distress was severe. Hoffmann-La Roche Inc.

v. Zeltwanger, 144 S.W.3d 438, 445 (Tex. 2004); Wal-Mart Stores, Inc. v. Canchola, 121

S.W.3d 735, 740 (Tex. 2003) (per curiam).          Staggs’s conduct satisfies the second

element only if his conduct was “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 v. Twyman, 855 S.W.2d 619, 621

(Tex. 1993) (quoting RESTATEMENT (SECOND) OF TORTS § 46 cmt.d (1965)).

       Conduct that is merely insensitive or rude is not extreme and outrageous, nor are

“mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.”

GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex. 1999).             Meritorious claims for

intentional infliction of emotional distress are relatively rare precisely because most

human conduct, even that which causes injury to others, cannot be fairly characterized

as extreme and outrageous. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 815 n.1

(Tex. 2005) (noting cases in which intentional infliction of emotional distress claims were

reversed for “failing to meet the exacting requirements of that tort”).

       Because Staggs is challenging an adverse finding on which he did not bear the


                                             5
burden of proof, he must establish that there was no evidence to support the jury’s finding.

See Croucher, 660 S.W.2d at 58. We review all evidence in support of the jury’s verdict

and disregard all contrary evidence unless it would be unreasonable to do so. See City

of Keller, 168 S.W.3d at 822.

       B.     The Credible Facts Supporting the Verdict

       This is a classic “he said/she said” case in which the jury was presented with two

versions of the events that culminated in the death of Cheyenne. Witnesses for the

Simpers testified that Cheyenne was an aggressive dog that regularly roamed the

neighborhood and that had a propensity for attacking other neighborhood dogs. Debbie

testified that on November 15, 2007, she heard a dog barking in her yard. She went

outside to investigate and saw two of Staggs’s “wolf dogs” attacking Puppy, her pit bull.

Once outside Debbie saw Puppy crawl out from underneath a trailer.              Puppy had

puncture wounds all over her body, and Debbie suspected internal bleeding. Debbie

called Thomas and asked him to come home.

       While waiting for Thomas to arrive, Cheyenne and another dog belonging to

Staggs continued to make aggressive moves toward her and Puppy. When Thomas

arrived, he determined that Puppy needed to be put down and shot her. Thomas then

approached Cheyenne who was snarling at him and attempting to attack his miniature

horses. He determined that she was unsafe to set loose and shot her three times in the

head at close range.

       When Staggs got home and found Cheyenne missing, he went to the Simpers’s

residence to ask if they had seen her. Thomas told Staggs that he had shot Cheyenne


                                             6
because she attacked his dog. Staggs’s response was that “someone’s going to die for

this.” When Thomas asked Staggs if that was a threat, Staggs said “no, no, no” and left

the property.

       The Simpers testified that they feared Staggs. According to Thomas, Staggs

repeatedly shot towards their property.5 On one occasion Staggs shot over Thomas’s

head—between his raised hands. Thomas “felt the bullet go by.” Debbie testified that,

years after the incident, Staggs drove by their new home in Yoakum. She also testified

that Staggs had a reputation for drinking excessively.

       Evidence was introduced at trial by both sides that Staggs believed that the

Simpers were engaged in dog fighting and that Cheyenne’s death stemmed from their

involvement in dog fighting. Staggs shared these beliefs with the local police department

and other law enforcement agencies, in addition to performing or attempting to perform

his own investigation into Cheyenne’s death and the existence of a local dog fighting ring.

       C.        Analysis

       Staggs contends that there is no evidence that his conduct rose to the level of

“outrageous” that the Texas Supreme Court requires to support a finding on a claim for

the intentional infliction of emotional distress. See King Ranch, 118 S.W.3d at 751;

Tywman, 855 S.W.2d at 621. Staggs further contends that Debbie’s own testimony

conclusively establishes the opposite of a vital fact—i.e., that her emotional distress was

severe. See King Ranch, 118 S.W.3d at 751; Tywman, 855 S.W.2d at 621.

       Looking at the facts in the light most favorable to the jury’s decision and indulging


       5   Staggs had a DPS certified gun range on his property.

                                                    7
every inference to support it, we cannot conclude that the evidence at trial enabled

reasonable and fair minded jurors to reach the determination that Staggs intentionally

inflicted emotional distress on Debbie.6 See City of Keller, 168 S.W.3d at 822; Tywman,

855 S.W.2d at 621. There is no evidence in the record that any intentional action by

Staggs was “so outrageous in character, and so extreme in degree, as to go beyond all

possible bounds of decency . . . to be regarded as atrocious, and utterly intolerable in a

civilized community.” See Twyman, 855 S.W.2d at 621.

        There is evidence that Staggs threatened the Simpers after Thomas told Staggs

he had shot Cheyenne—Staggs allegedly said that “someone’s going to die for this.”

However, the jury did not credit the above statement as reflected in a separate jury

question where the jury found that Staggs did not “intentionally or knowingly” cause injury

through the infliction of emotional distress by threatening the Simpers. 7 Additionally,

even if the jury’s “no” answer had not illuminated this issue for us, the comment allegedly

made by Staggs, and followed promptly with his assertion that it was not a threat, does

not reach the egregious level required by Twyman and GTE Southwest, Inc. See

Twyman, 855 S.W.2d at 621; GTE Sw., Inc., 998 S.W.2d at 612 (stating that conduct that

is a mere threat is not extreme and outrageous).

      It is also apparent from the record that Debbie based her cause of action for


        6It is important to note that Thomas’s claim that Staggs shot over his head is not evidence that
could support Debbie’s claim for emotional distress because there is no evidence that Debbie was present
when the alleged incident occurred.

        7 The trial court submitted the following question to the jury on the Simpers’s assault claim: “Do

you find from the evidence in this case that MICHAEL W. STAGGS threatened THOMAS & DEBBIE
SIMPER with imminent bodily injury which threat caused injury through the infliction of emotional distress.”
The jury answered “no.” We do not address the correctness of the charge.

                                                     8
intentional infliction of emotional distress on the death of her dog Puppy. At one point,

counsel for the Simpers asked Debbie the following question: “[b]ased on Mr. Staggs

allowing his dogs to roam free and maul your dog, has that caused you some emotional

distress?” Debbie testified that it caused her “a lot of distress,” namely that the court

proceedings were distressing, and that allegations that she was involved in dog fighting

were distressing.    These facts will not support a finding for intentional infliction of

emotional distress. Twyman, 855 S.W.2d at 621; GTE Sw., Inc., 998 S.W.2d at 612.

Moreover, none of the facts allege an intentional act by Staggs. See id. While the jury

may have believed Debbie’s testimony that having Puppy dying in her arms was

distressing, it is not the atrocious and intentional action required by Texas courts to

support the limited cause of action for the intentional infliction of emotional distress. See

id.

       The intentional infliction of emotional distress finding also fails on a second basis.

 Debbie’s own testimony conclusively negated an element of her cause of action. See

 King Ranch, Inc., 118 S.W.3d at 751. Debbie’s testimony establishes that there is no

 evidence that she suffered severe emotional distress. See id; Hoffman-La Roche Inc.,

 144 S.W.3d at 445. “Severe emotional distress” means distress so severe that no

 reasonable person could be expected to endure it without undergoing unreasonable

 suffering. See Benavides v. Moore, 848 S.W.2d 190, 195 (Tex. App.—Corpus Christi

 1992, writ denied); K.B. v. N.B., 811 S.W.2d 634, 640 (Tex. App.—San Antonio 1991,

 writ denied).

       During cross-examination, counsel for Staggs asked Debbie whether she ever


                                             9
sought counseling as a result of her emotional distress. Debbie responded that she did

not seek counseling because “[the distress] wasn’t that severe.” Debbie’s testimony

that her emotional distress was not severe enough to warrant counselling conclusively

establishes that her intentional infliction of emotional distress claim is not meritorious.

See Benavides, 848 S.W.2d at 195; K.B., 811 S.W.2d at 640.

      Considering the evidence in the light most favorable to the jury’s decision and

indulging every reasonable inference that would support it, we nonetheless cannot

conclude that Staggs’s conduct was extreme and outrageous, and we cannot conclude

that Debbie suffered severe emotional distress. See City of Keller, 168 S.W.3d at 822;

Twyman, 855 S.W.2d at 621; Benavides, 848 S.W.2d at 195.

      We sustain Staggs’s first issue.

                    IV.   FACTUAL SUFFICIENCY CHALLENGE TO THE
                   JURY’S NO LIABILITY FINDING AGAINST THE SIMPERS

      A.      Staggs’s Conversion Claim

      In his second issue, Staggs asserts that the jury’s failure to find the Simpers liable

for conversion was against the great weight and preponderance of the evidence. See

Dow Chem. Co., 46 S.W.3d at 242. In order to establish liability for the conversion of

personal property, a plaintiff must prove that: (1) it owned or had legal possession of the

property or entitlement to possession; (2) the defendant unlawfully and without

authorization assumed and exercised dominion and control over the property to the

exclusion of, or inconsistent with, the plaintiff's rights as an owner; (3) the plaintiff

demanded return of the property; and (4) the defendant refused to return the property.

Greater Houston German Shepherd Dog Rescue, Inc. v. Lira, 447 S.W.3d 365, 372 (Tex.

                                            10
App.—Houston [14th Dist.] 2014, pet. filed) (citing Augillard v. Madura, 257 S.W.3d 494,

500 (Tex. App.—Austin 2008, no pet.)).

       Because Staggs is attacking the factual sufficiency of an adverse finding on an

issue on which he had the burden of proof, he must demonstrate that the adverse finding

is against the great weight and preponderance of the evidence. See Dow Chem. Co.,

46 S.W.3d at 242. Staggs claims that the uncontroverted evidence at trial established

that he was Cheyenne’s owner, that the Simpers assumed and exercised dominion and

control over Cheyenne when they tied her to a fence post, and that he was damaged

when she was killed. But see Lira, 447 S.W.3d at 372 (requiring the claimant prove an

unlawful taking).

       While Staggs did put on evidence supporting the above facts, he failed to put forth

any evidence that the Simpers acted unlawfully or without authorization in regard to their

detention of Cheyenne, though he bore the burden of proof on the issue. See id. In

fact, there was evidence before the jury to allow them to find that the Simpers were not

acting unlawfully or without authorization when restraining Cheyenne.          Witnesses

testified that the grand jury returned a “no bill” on an animal cruelty charge as to the

Simpers. It is also uncontroverted that Cheyenne was on the Simpers’s property when

Thomas shot her, and the Simpers testified that they played no role in bringing Cheyenne

to their property. Staggs bore the burden of proof on the issue and he failed to put forth

any evidence that the Simpers’s actions were in any way unlawful. See id. Without any

evidence that the Simpers’s action was unlawful, the jury’s finding that no conversion had

taken place was reasonable and was not against the great weight and preponderance of


                                           11
the evidence. See Dow Chem. Co., 46 S.W.3d at 242.

       Staggs has not demonstrated that the adverse finding of no conversion is against

the great weight and preponderance of the evidence. See id.          We overrule Staggs’s

second issue.

       B.     Staggs’s Negligence Claim

       The jury did not find the Simpers negligent in shooting Cheyenne. “The elements

of a negligence cause of action are a duty, a breach of that duty, and damages

proximately caused by the breach of duty.” Doe v. Boys Clubs of Greater Dallas, Inc.,

907 S.W.2d 472, 477 (Tex. 1995).

       By his third issue Staggs complains that this finding is against the great weight and

preponderance of the evidence. See id. Staggs challenges the breach of duty element

and contends that the Simpers breached the duty of reasonable care by shooting

Cheyenne instead of taking other actions available to them such as calling the police or

calling the animal shelter.

       At trial, Debbie and Thomas both testified that Cheyenne continued to show

aggression after fatally wounding Puppy and after being tied to a fence post. The jury,

in its role as the finder of fact, made a determination that the Simpers’s conduct did not

breach any duty of reasonable care after hearing the evidence admitted during trial. See

Dow Chem. Co., 46 S.W.3d at 242. The jury could have based their “no” answer to

Staggs’s negligence claim on a determination that Simper acted reasonably in putting

down an aggressive “wolf dog” with a history of violence. See id. After reviewing the

record we do not find that the evidence is so weak or that the jury’s finding is so against


                                            12
the great weight and preponderance of the evidence that it is clearly wrong and unjust.

See id.

        We overrule Staggs’s third issue.8

                                         V.       CONCLUSION

        We reverse the trial court’s judgment on Debbie’s claim of intentional infliction of

emotional distress and render a take nothing judgment. We affirm the remainder of the

judgment.



                                                                          NELDA V. RODRIGUEZ
                                                                          Justice

Delivered and filed the
28th day of May, 2015.




        8  Because we have determined that the jury’s determination that the Simpers were not negligent
was supported by the evidence, we do not reach Staggs’s fourth and fifth issues regarding his gross
negligence and malice questions. Seminole Pipeline Co. v. Broad Leaf Partners, Inc., 979 S.W.2d 730,
748–49 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (the difference between gross negligence and
malice is of degree, rather than kind); Shell Oil Co. v. Humphrey, 880 S.W.2d 170, 174 (Tex. App.—Houston
[14th Dist.] 1994, writ denied) (negligence is a prerequisite for a finding of gross negligence); Alvarez v
Driscoll Found. Children’s Hosp., No. 13-98-152-CV, 2000 WL 35729205, at *2 (Tex. App.—Corpus Christi
Dec. 7, 2000, pet. denied).
                                                   13
