Dan Gawlikowski v. Steven Thomas Sikes

Opinion issued June 14, 2012. In The Court of Appeals For The First District of Texas ———————————— NO. 01-11-00504-CV ——————————— Daniel Gawlikowski, Appellant V. Steven Thomas Sikes, Appellee On Appeal from the 270th Judicial District Court Harris County, Texas Trial Court Case No. 2010-15925 MEMORANDUM OPINION Appellant, Daniel Gawlikowski, challenges the trial court’s entry, after a bench trial, of a judgment in favor of appellee, Steven Thomas Sikes, awarding Sikes damages in his suit for libel[1] and intentional infliction of emotional distress. In three issues, Gawlikowski contends that Sikes’s claims are barred under the pertinent statute of limitations,[2] his allegedly libelous statements were privileged, and the trial court abused its discretion in allowing an oral trial amendment. We affirm. Background On March 10, 2010, Sikes filed his original petition, alleging that Gawlikowski had “sent an email to [Sikes] and multiple third parties” stating that Sikes had sexually assaulted Gawlikowski’s daughter. Sikes asserted that Gawlikowski “published the defamatory falsehood” with “actual malice, knowing it was false” or “with reckless disregard of whether it was false or not.” In his answer to the petition, Gawlikowski asserted the affirmative defenses of limitations, “absolute immunity” for the publication of “information within the litigation process,” and immunity for reporting “any incident of child abuse.” At trial, Sikes testified that he was married to Brandi Sikes, who was previously married to Gawlikowski and had had a daughter with him. Since 2003, Brandi and Gawlikowski had been engaged in a lawsuit for custody of the child. Sikes recalled an incident in which the child was “running around on a wet tile floor” after taking a bath, and Sikes disciplined the child by “spanking” her. Because of this incident, Gawlikowski, on “several occasions,” stated that Sikes had “sexually assaulted” the child. Specifically, Sikes entered into evidence an e-mail correspondence with Gawlikowski, Brandi, and several others. On March 8, 2010, Brandi sent Gawlikowski an e-mail, with the subject line “Homework and Hygiene,” in which she asked Gawlikowski to ensure that the child completed her homework and to “wash her hair and bath[e] thoroughly while she is with you.” She forwarded the e-mail to Sikes, Janette Gawlikowski, and her lawyer. After Gawlikowski and Sikes had each responded, on March 9, 2010, Gawlikowski sent another reply, directed towards Sikes, with the subject title “PLEASE CEASE COMMUNICATION WITH ME,” in which he stated, You are a sick man that pulled down the pants of another man’s young daughter and spanked her bare bottom with your bare hands. . . . . In my opinion, you should be behind bars for sexually assaulting a child. I certainly don’t think that you should be in the same house with the little girl that, in my opinion, you sexually assaulted. I pray for [Sikes’s daughter’s] sake that her father never sexually assaults her the same way that he did to his stepdaughter. We will all be in front of a jury soon and we’ll see what determination they make of your sick, disgusting actions. The reply was forwarded to the recipients of the first e-mail, and Robert C. Kuehm, Robert I. Kuehm, and other third parties. Sikes stated that the allegations were “the most stressful thing [he’d] ever been through” and, because he suffers from “a condition called Addison’s Disease,” which requires him to take cortisol steroids, he had to “increase his medication dosage” to combat the stress. On March 21, 2011, Gawlikowski sent an e-mail to Josh Harris, a representative of the Houston First Baptist Church, stating that “Steven Sikes’[s] method of disciplining my daughter was highly inappropriate” and requesting “a name of a counselor that Steven Sikes could possibly use to help him understand more appropriate ways of disciplining a child.” On cross-examination, Sikes stated that he had been “involved” in the custody dispute between Brandi and Gawlikowski “for several years,” although he was not a party to that lawsuit. Gawlikowski testified that in November 2008, he was informed at a parent-teacher conference that Sikes had disciplined the child by “pulling down her pants and spanking her bare bottom with his bare hands.” He stated that he sent the March 9, 2010 e-mail “[w]ithin the confines of the custody case” directed towards “the folks that were within the confines of the existing custody battle.” On cross-examination, Gawlikowski testified that he first stated his belief that Sikes had “sexually assaulted” the child to a court-appointed psychologist on September 16, 2008. He did not report this belief “to anyone other than the persons involved” in the custody litigation and forwarded his March 9, 2010 e-mail only to the lawyers involved in the litigation. Finally, Brandi testified that in September 2008, she knew that Gawlikowski “intended” to tell the court-appointed psychologist that Sikes “was sexually abusing the child.” After the close of evidence, Sikes asked for a trial amendment to include a claim of intentional infliction of emotional distress, arguing that the issue had been “tried by consent” because he “did elicit testimony as to all the elements.” Gawlikowski objected and argued that “[t]here was nothing tried by consent.” The trial court overruled the objection and allowed the oral trial amendment. The trial court rendered judgment in favor of Sikes, awarded him actual damages of $25,000, and, finding that Gawlikowski “acted with malice and knowledge of the falsity of his statements,” awarded Sikes $50,000 in punitive damages. Statute of Limitations In his first issue, Gawlikowski argues that the trial court’s judgment “constitutes an abuse of discretion” because “it awards damages for comments that were made by [him] that were barred by limitations.” Specifically, he argues that because he first alleged that Sikes had committed sexual assault to the court-appointed psychologist in September 16, 2008, Sikes was barred for bringing a suit for libel “over a year and 6 months from the date [Gawlikowski] originally made the statement.” To establish a claim of libel, a plaintiff must show that the defendant “expressed in written or other graphic form” a defamation that “tends to injure a living person’s reputation.” Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (Vernon 2011). The statute of limitations for defamation is one year. Id. § 16.002(a) (Vernon 2002). Generally, a cause of action for libel or slander accrues on the day the words are printed or spoken. Wheeler v. Methodist Hosp., 95 S.W.3d 628, 636 (Tex. App.—Houston [1st Dist.] 2002, no pet.); Martinez v. Hardy, 864 S.W.2d 767, 774 (Tex. App.—Houston [14th Dist.] 1993, no writ). In his original petition, Sikes sought damages only for the March 9, 2010 e-mail correspondence, and he filed his petition one day after Gawlikowski had sent the e-mail stating that Sikes had sexually assaulted the child. Thus, Sikes’s cause of action for libel began accruing on March 9, 2010, and he brought this suit well within the one-year statute of limitations. Although Gawlikowski alleges that the cause of action accrued on September 16, 2008, the date that Gawlikowski first reported his allegations to a court-appointed psychologist, we note that the psychologist’s report is not in the record and Gawlikowski offers no evidence in support of his assertion that all of the individuals in receipt of the March 9, 2010 e-mail had already been made aware of his allegations that Sikes had sexually assaulted his daughter. Gawlikowski correctly states the proposition that a claim of libel “accrues on the date of the communication or publication and not on the date of the consequences or sequelae.” Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 131 (Tex. App.—Houston [14th Dist.] 1994, no writ). However, the date of the publication which forms the basis of Sikes’s claim of libel was only one day before he filed this suit in the trial court.[3] Accordingly, we hold that Sikes’s claims were not barred under the pertinent statute of limitations. We overrule appellant’s first issue. Litigation Privilege In his second issue, Gawlikowski argues that because the comments that he made were privileged, they “cannot be made the basis of a defamation action.” Specifically, Gawlikowski asserts that his statement was “made during the course of a pending judicial proceeding and the statement is related to the issues” of Gawlikowski and Brandi’s custody dispute. Communications made in the due course of a judicial proceeding will not serve as the basis of a civil action for libel or slander, regardless of the negligence or malice with which they are made. James v. Brown, 637 S.W.2d 914, 916 (Tex. 1982). This privilege extends to any statements made by the judges, jurors, counsel, parties, or witnesses and attaches to all aspects of the proceedings, including statements made in open court, pre-trial hearings, depositions, affidavits, and any of the pleadings or other papers in the case. Id. at 916–917. The privilege not only extends to statements made during litigation but also to statements made in contemplation of and preliminary to judicial proceedings. Watson v. Kaminski, 51 S.W.3d 825, 827 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (holding that letter alleging that prisoner was trying to extort money from appellants and that he was likely to be sued if he attempted to do so came within judicial privilege, even though no litigation was pending). To be privileged, the communication must bear some relationship to pending or proposed litigation and must further the attorney’s representation. Id.; but see Bell v. Lee, 49 S.W.3d 8, 11 (Tex. App.—San Antonio 2001, no pet.) (privilege attaches if statement has some relationship to contemplated proceeding, whether or not it actually furthers representation). Whether an alleged defamatory communication is related to a proposed or existing judicial proceeding is a question of law. Thomas v. Bracey, 940 S.W.2d 340, 343 (Tex. App.—San Antonio 1997, no writ). When deciding the issue, “the court must consider the entire communication in its context, and must extend the privilege to any statement that bears some relation to an existing or proposed judicial proceeding.” Daystar Residential, Inc. v. Collmer, 176 S.W.3d 24, 28 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (quoting Russell v. Clark, 620 S.W.2d 865, 870 (Tex. Civ. App.—Dallas 1981, writ ref’d n.r.e.)). All doubt should be resolved in favor of the privilege. Id. Here, Gawlikowski’s May 9, 2010 e-mail was sent in response to Brandi’s May 8, 2010 e-mail, with the subject heading “Homework and Hygiene,” in which she asked that Gawlikowski ensure that the child completed her homework when she visited and he bathe the child thoroughly. Gawlikowski responded that that he was not aware that the child had homework, and he further discussed the child’s hygiene. After Sikes replied with more discussion of the child’s homework and hygiene habits, Gawlikowski sent an e-mail with the subject heading “PLEASE CEASE COMMUNICATION WITH ME,” in which he stated, “I pray for [Sikes’s daughter’s] sake that her father never sexually assaults her the same way that he did to his stepdaughter.” He concluded the e-mail by stating that they would “all be in front of a jury soon” to see “what determination they make of [Sikes’s] sick, disgusting actions.” Although Gawlikowski references a “jury” in his May 9, 2010 e-mail, the e-mails merely concerned the child’s homework and hygiene habits. And, while not determinative of the issue of whether Gawlikowski’s statement had “some relation” to judicial proceedings, we also note that Sikes was not a party to the ongoing custody proceeding. Appellant does not indicate how his March 9, 2010 e-mail furthered his attorney’s representation or otherwise relates to the child custody proceedings, other than that the proceedings were ongoing at the time he wrote the e-mail. Compare Jenevein v. Friedman, 114 S.W.3d 743, 749 (Tex. App.—Dallas 2003, no pet.) (holding that allegation in court document alleging that third party conspired to bribe presiding judge was judicially privileged because it could be used to show judge’s impropriety); Odeneal v. Wofford, 668 S.W.2d 819, 820–21 (Tex. App.—Dallas 1984, writ ref’d n.r.e.) (holding that statements regarding third party found in letter sent to State Bar Grievance Committee were privileged because Grievance Committee is “quasi-judicial proceeding”). Accordingly, we hold that Gawlikowski’s March 9, 2010 e-mail was not privileged. We overrule Gawlikowski’s second issue. Trial Amendment In his third issue, Gawlikowski argues that the trial court abused its discretion in allowing Sikes to orally amend his pleadings. Specifically, Gawlikowski asserts that the trial court acted “without any guiding principles of law” in allowing Sikes to add intentional infliction of emotional distress as a cause of action after the close of evidence. A trial court has no discretion to refuse a trial amendment unless (1) the opposing party presents evidence of surprise or prejudice, or (2) the amendment asserts a new cause of action or defense and, therefore, is prejudicial on its face and the opposing party objects to it. See Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990); Hardin v. Hardin, 597 S.W.2d 347, 349 (Tex. 1980); Lege v. Jones, 919 S.W.2d 870, 875 (Tex. App.—Houston [14th Dist.] 1996, no writ). However, “when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleadings.” Tex. R. Civ. P. 67. Amendment of the pleadings “as may be necessary to cause them to conform to the evidence” can be made “upon motion of any party at any time up to the submission of the case to the Court.” Id. At trial, Sikes testified that he suffered from Addison’s Disease and had to take medication “to fight stress.” He stated that because of the stress caused by Gawlikowski’s accusations, he had to increase his medication dosage, could not sleep well, and suffered from “neck and shoulder tension.” Sikes also admitted into evidence e-mails that Gawlikowski sent later, in March 2011, to Harris at the Houston First Baptist Church. In the e-mails, Gawlikowski advocated that Sikes receive church counseling regarding “alternative methods of disciplining a child” and attached the report from the court-appointed psychologist. Gawlikowski explained that he had “intentionally” sent the e-mail to the church without first contacting Sikes. Finally, Brandi spoke of Sikes’s efforts to “work through a lot of frustration” and inability to sleep at night due to Gawlikowski’s allegations. Because Sikes presented evidence, without objection, that Gawlikowski acted intentionally and Gawlikowski’s actions caused him to suffer “the most stressful thing he had ever been through,” the trial court could have reasonably concluded that the issue had been tried by consent. See Twyman v. Twyman, 855 S.W.2d 619, 621–22 (Tex. 1993) (stating elements of intentional infliction of emotional distress as: (1) defendant acted intentionally or recklessly; (2) defendant’s conduct was extreme and outrageous; (3) defendant’s actions caused plaintiff emotional distress; and (4) plaintiff’s emotional distress was severe). Accordingly, we hold that the trial court did not abuse its discretion in allowing Sikes’s oral trial amendment to include his cause of action for intentional infliction of emotional distress. We overrule Gawlikowski’s third issue. Conclusion We affirm the judgment of the trial court. Terry Jennings Justice Panel consists of Chief Justice Radack and Justices Jennings and Keyes. [1] See Tex. Civ. Prac. & Rem. Code Ann. § 73.001 (Vernon 2011). [2] See Tex. Civ. Prac. & Rem. Code Ann. § 16.002 (Vernon 2002). [3] Gawlikowski’s argument appears to rely, in part, on the “single publication rule,” which applies in mass media libel cases and provides that “[n]o person shall have more than one cause of action for damages for libel . . . founded upon any single publication or exhibition or utterance, such as any one edition or issue of a newspaper.” See Holloway v. Butler, 662 S.W.2d 688, 690 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.). However, the single publication rule is limited to mass media torts and “is clearly designed to protect publishers from repeated liability.” Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 173 (Tex. 2003). Also, as noted above, the publication that Sikes complains of here was disseminated only one day before he filed suit.