TEACHER-STUDENT LITIGATION | EDUCATOR'S CYBERSPACE DEFAMATION SUIT FAILS
Draker v. Schreiber, No. 04-07-00692-CV (Tex.App.- San Antonio, Aug. 13, 2008) (Angelini)
(school administrator's IIED claim in Internet (MySpace.com) defamation case brought against students
dismissed) Justice Catherine Stone wrote a concurring opinion taking issue with the Supreme Court's tort
jurisprudence in dicta.
Holding: The tort of intentional infliction of emotional distress is not available to Draker to seek a remedy for
the anguish she suffered because it is based on the same facts as her defamation claim and may not be
pursued in the alternative to the defamation claim under controlling Texas Supreme Court precedent.
Disposition: Trial court's grant of summary judgment for the defendants (students and parents) affirmed
Opinion by Justice Karen Angelini
Before Justices Stone, Angelini and Hilbig
Appellate cause Number: 04-07-00692-CV
Full Case Style: Anna Draker v. Benjamin Schreiber, a minor, Lisa Schreiber; Ryan Todd, a minor, Lisa
Todd, and Steve Todd
Trial Court: 38th District Court of Medina County
Trial Court Judge: Honorable Mickey R. Pennington
Attorneys on appeal: Murphy S. Klasing | Regina Bacon Criswell | Ron A. Sprague
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Draker v. Schreiber (Tex.App.- San Antonio, Aug. 13, 2008)
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PANEL OPINION BY JUSTICE KAREN ANGELINI
[Links are not part of the opinion as released by the court]
Anna Draker appeals the trial court’s order granting the motion for summary judgment of Benjamin
Schreiber, Lisa Schreiber, Ryan Todd, Lisa Todd, and Steve Todd on Draker’s claims of intentional infliction
of emotional distress, negligence, and gross negligence. We affirm the trial court’s judgment.
Background
On April 19, 2006, Anna Draker, a vice-principal at Clark High School, was advised by a co-worker that some
students had created a website on MySpace.com. The website, which appeared to have been created by
Draker, contained her name, photo, and place of employment, as well as explicit and graphic sexual
references. It was subsequently discovered that Benjamin Schreiber and Ryan Todd, at the time both minors
and students at Clark High School, were responsible for creating the website.
Draker sued Benjamin Schreiber and Ryan Todd (“students”) for defamation and libel per se, as well as their
parents for negligence and gross negligence relating to the parents’ supervision of the students’ use of the
internet. Draker later filed a first amended petition, pleading negligence in the alternative to her original
claims for defamation and libel per se, as well as asserting additional claims against the students for civil
conspiracy and gross negligence.
In response to Draker’s lawsuit, the students filed a joint motion for summary judgment, asserting that
because the “exaggerated and derogatory statements” included on the MySpace website in question were
not assertions of fact that could be objectively verified, they were not defamatory as a matter of law. Draker
filed a response to this motion, which was subsequently sealed at Draker’s request, along with the motion
and attached exhibits.
She then filed a second amended petition in which she again pled civil conspiracy, defamation and libel per
se, and also alleged, in the alternative to her defamation and libel per se claims, a claim for intentional
infliction of emotional distress. Her second amended petition also continued to assert her allegations of
negligence and gross negligence against the parents. The trial court granted the students’ motion for
summary judgment and dismissed Draker’s causes of actions against the students for defamation and libel
per se.
The Schreibers and the Todds then filed a joint motion for summary judgment as to Draker’s remaining
claims for intentional infliction of emotional distress, civil conspiracy, and negligence. Draker then filed her
third amended petition, wherein she alleged solely intentional infliction of emotional distress as to the
students, and negligence and gross negligence as to the parents. Draker further filed a motion for
continuance, arguing that she needed more time to conduct discovery on her remaining claims; however, at
the summary judgment hearing, the trial court denied Draker’s motion for continuance and granted the
Schreibers’ and the Todds’ motion for summary judgment.
In three issues on appeal, Draker argues that the trial court erred in (1) granting summary judgment in favor
of the students on her claim of intentional infliction of emotional distress; (2) granting summary judgment in
favor of the parents on her claims of negligence and gross negligence; and (3) denying her motion for
continuance and thereby preventing her from conducting further discovery on her intentional infliction of
emotional distress and negligence causes of action.
Standard of Review
The Schreibers and the Todds filed both a traditional and a no-evidence motion for summary judgment. See
Tex. R. Civ. P. 166a(c), (i). To obtain a traditional motion for summary judgment, the movant must show that
there is no genuine issue of material fact and that judgment should be granted as a matter of law. KPMG
Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant moving
for summary judgment must conclusively negate at least one essential element of each of the plaintiff’s
causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v.
Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Under this traditional standard, we take as true all evidence
favorable to the respondent and must make all reasonable inferences in the respondent’s favor. Id.
We review a no-evidence summary judgment de novo and consider the evidence in the light most favorable
to the respondent, disregarding all contrary evidence and inferences. King Ranch, Inc. v. Chapman, 118 S.
W.3d 742, 750-51 (Tex. 2003). If the respondent produces more than a scintilla of evidence establishing the
existence of the challenged element, a genuine issue of material fact exists. Id.; see Tex. R. Civ. P. 166a(i).
In determining if there is more than a scintilla of evidence, we consider whether the evidence would enable
reasonable and fair-minded jurors to differ in their conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 426
(Tex. 2008).
Further, when, as here, a trial court’s order granting summary judgment does not specify the grounds relied
upon, we must affirm summary judgment if any of the summary judgment grounds are meritorious. FM Props.
Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
Intentional Infliction of Emotional Distress
To recover damages for intentional infliction of emotional distress, a plaintiff must establish that (1) the
defendant acted intentionally or recklessly; (2) the defendant’s conduct was extreme and outrageous; (3) the
defendant’s actions caused the plaintiff emotional distress; and (4) the emotional distress suffered by the
plaintiff was severe. Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 740-41 (Tex. 2003); Morgan v.
Anthony, 27 S.W.3d 928, 929 (Tex. 2000).
Furthermore, intentional infliction of emotional distress is a “gap-filler” tort, created to permit recovery in
“those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so
unusual that the victim has no other recognized theory of redress.” Hoffmann-La Roche, Inc. v. Zeltwanger,
144 S.W.3d 438, 447 (Tex. 2004). It was never intended as an easier and broader way to allege claims
already addressed by our civil and criminal laws, nor was it intended to replace or duplicate existing statutory
or common law remedies. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 817-18 (Tex. 2005); Hoffmann-
La Roche, Inc., 144 S.W.3d at 447. Thus, if the gravamen of a plaintiff’s complaint is another tort, a claim for
intentional infliction of emotional distress claim will not lie regardless of whether the plaintiff succeeds on, or
even makes the alternate claim. Hoffmann-La Roche, Inc., 144 S.W.3d at 448; see also Creditwatch, Inc.,
157 S.W.3d at 817 (“As [the plaintiff’s] complaints are covered by other statutory remedies, she cannot
assert them as intentional infliction claims just because those avenues may now be barred.”); Louis v. Mobil
Chem. Co., 254 S.W.3d 602, 610 (Tex. App.—Beaumont 2008, pet. filed) (“Where the gravamen of the
complaint is really another tort, intentional infliction of emotional distress is unavailable.”); Conley v. Driver,
175 S.W.3d 882, 887 n.4 (Tex. App.—Texarkana 2005, pet. denied) (explaining that intentional infliction of
emotional distress tort “cannot be used as an alternative to some other, more conventional tort [that] fits the
facts but might be subject to some structural impediment”).
Discussion
The Schreibers’ and the Todds’ motion for summary judgment asserted that Draker could not establish each
of the essential elements of her intentional infliction of emotional distress claim as a matter of law because
the gravamen of her complaint was defamation; therefore, regardless of whether Draker prevailed on her
defamation claim, she had another theory of redress and could not sue for intentional infliction of emotional
distress.
Draker, however, argues that intentional infliction of emotional distress should be available as a “gap filler”
when, as here, she has been precluded from asserting a defamation claim “as a matter of law.” We disagree.
The Texas Supreme Court has rejected a similar argument to Draker’s:
[A] plaintiff’s failure to establish his or her claim . . . does not mean that the plaintiff has a claim for intentional
infliction of emotional distress. If the gravamen of a plaintiff’s complaint is the type of wrong that the statutory
remedy was meant to cover, a plaintiff cannot maintain an intentional infliction claim regardless of whether he
or she succeeds on, or even makes, a statutory claim. Hoffman-La Roche, Inc., 144 S.W.3d at 448
(emphasis added); see also Black’s Law Dictionary 721 (8th ed. 2004) (defining “gravamen” as “[t]he
substantial point or essence of a claim, grievance, or complaint”).
More recently, the Beaumont Court of Appeals held that a plaintiff who sued his employers for intentional
infliction of emotional distress, defamation, and retaliation could not maintain his claim for intentional infliction
of emotional distress because the nature of his claim, a threat to wrongfully discharge him unless he falsified
his reports, was in essence a Sabine Pilot claim. Louis, 254 S.W.3d at 610. The plaintiff, however, was
unable to prevail on a Sabine Pilot claim because he had not refused to do the illegal act. Id. That is,
because he was fired for performing the illegal act rather than for refusing to perform the illegal act, he could
not prevail on his wrongful discharge claim as a matter of law. Id. Nevertheless, the court held that even
though the plaintiff was precluded from bringing a Sabine Pilot claim, because the gravamen of his complaint
was another tort, that of wrongful termination under Sabine Pilot, the trial court did not err in granting a
motion for summary judgment on plaintiff’s claim for intentional infliction of emotional distress. Id.; see also
Conley, 175 S.W.3d at 887 n.4 (explaining that intentional infliction of emotional distress tort cannot be used
as an alternative to some other, more conventional tort that fits the facts but might be subject to some
structural impediment).
Similarly, in the present case, that the trial court dismissed Draker’s defamation claim “as a matter of law”
does not give rise to one of “those rare instances in which a defendant intentionally inflicts severe emotional
distress in a manner so unusual that the victim has no other recognized theory of redress.” Hoffmann-La
Roche, Inc., 144 S.W.3d at 447. If the gravamen of Draker’s complaint was defamation, it matters not
whether she succeeded on, or even made, such a claim. See id. at 448.
Thus, to maintain a claim for intentional infliction of emotional distress, Draker was required to allege facts
independent of her defamation claim. See id. at 450. Draker’s second amended petition alleged a claim for
defamation and further alleged, in the alternative, that “should this court find that the statements are not
defamatory as a matter of law, then [intentional infliction of emotional distress] is the only cause of action that
will provide a remedy for the severe emotional distress suffered by Ms. Draker at the hands of the
Defendants, Ryan Todd and Benjamin Schreiber.” No independent facts were alleged in this second
amended petition for Draker’s intentional infliction of emotional distress claim. Draker did attempt to allege
facts independent of her defamation claim in her third amended petition, wherein she alleged that the
following acts amounted to extreme and outrageous conduct: (1) the use of her identity without her
knowledge or permission; (2) the worldwide publication of facts about her, while portraying such facts as if
they were true and as if they were about and from her; (3) the acceptance of other members of MySpace.
com as “friends” to her supposed site; (4) the worldwide publication of her name, profession, and place of
employment, along with false statements about her sexual preferences and activities, without her knowledge
or permission; and (5) the portrayal of her as an individual who engages in lewd and offensive behavior, as
well as the portrayal of her as a lesbian.
We note that many of the “independent” facts alleged by Draker in her third amended petition were also
alleged by her in her second amended petition. Specifically, Draker’s second amended petition alleged that
the students created a website containing her picture and name, along with lewd, false, and obscene
comments, pictures, and graphics that implied she was a lesbian. The second amended petition further
alleged that there were instant messages from other users or “friends” of MySpace.com who Draker did not
recognize. And, this petition alleged that the statements, which Draker alleged were false, were published on
MySpace.com and were, therefore, accessible to anyone in the world.
The only facts “independent” of Draker’s defamation claim involve the students’ use of Draker’s identity
without her knowledge or permission and the portrayal of such facts as if they were from Draker. However,
these allegations stem from the students’ involvement in the creation and, more importantly, the publication
of the subject web page. Further, while Draker complains of the manner in which the website was created (i.
e. using her identity without her knowledge or permission), it was the content of the website that caused
Draker emotional distress. Thus, the essence of Draker’s complaint, that the students “used Draker’s
identity” in both creating and publishing the web page, is defamation. See WFAA-TV, Inc. v. McLemore, 978
S.W.2d 568, 571 (Tex. 1998) (explaining that to establish a defamation claim, a plaintiff must demonstrate
that the defendant published a factual statement that was defamatory to the plaintiff while acting negligently
as to the truth of the statement).
Because Draker failed to alleged facts independent of her defamation claim in support of her claim for
intentional infliction of emotional distress, the trial court did not err in granting summary judgment on this
claim. See Hoffmann-La Roche, Inc., 144 S.W.3d at 447. Draker’s first issue is denied.
Motion for Continuance
Draker further argues that the trial court erred in denying her motion for continuance in order to provide her
additional time to conduct discovery on her causes of action.
A trial court may order a continuance of a summary judgment hearing if it appears “from the affidavits of a
party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his
opposition.” Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004) (quoting Tex. R . Civ. P.
166a(g)). When reviewing a trial court’s order denying a motion for continuance, we consider whether the
trial court committed a clear abuse of discretion on a case-by-case basis. Id. A trial court abuses its
discretion when it reaches a decision so arbitrary and unreasonable that it amounts to a clear and prejudicial
error of law. Id. When deciding whether a trial court abused its discretion in denying a motion for continuance
requesting additional time to conduct discovery, we consider the following non-exclusive factors: the length
of time the case has been on file, whether the party seeking the continuance has exercised due diligence to
obtain the discovery sought, and the materiality and the purposes of the discovery sought. Id.
Here, Draker failed to show materiality of the discovery sought. Draker filed a pleading entitled “Motion for
Continuance and Response to Defendants’ Second Motion for Summary Judgment.” In the portion of the
pleading relating to a continuance, Draker stated she was seeking a continuance “until she has had an
opportunity to depose the defendants in this matter.” Specifically, Draker complained that the defendants
had refused to allow her to take depositions. Then, in the portion of the pleading in which she responded to
defendants’ second motion for summary judgment, Draker more specifically articulated her reasons for the
need to conduct further discovery. According to Draker, she needed to take the minor plaintiffs’ depositions
so that she could determine the intent of the authors who created the web page. Then, she referenced a
specific need to take the depositions of the defendant parents, arguing that her negligence allegations
against them required a factual determination.
However, because we have held that the tort of intentional infliction of emotional distress is unavailable to
Draker as a “gap-filler” cause of action, the intent of the minor plaintiffs is not material. Further, because the
negligence claims against the defendant parents are dependent upon liability findings against the minors,
any facts pertaining to negligence obtained from the defendant parents in a deposition are likewise
immaterial. Beyond the statements set forth above as contained in Draker’s pleadings, Draker did not
articulate any further reasons why the discovery sought was material to her cause of action or for what
purpose she sought the discovery. Under these circumstances, we cannot say the trial court abused its
discretion in refusing to grant Draker’s motion for continuance. See Joe, 145 S.W.3d at 161. Draker’s
second issue is denied.
Having determined that Draker’s claim for intentional infliction of emotional distress was properly dismissed,
we need not address Draker’s remaining issue.
Conclusion
As the gravamen of Draker’s complaint was one of defamation, the trial court did not err in dismissing her
claim for intentional infliction of emotional distress. Nor did the trial court abuse its discretion in denying her
motion for continuance. Accordingly, we affirm the trial court’s judgment.
Karen Angelini, Justice
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Majority Opinion by Karen Angelini, Justice
Concurring opinion by: Catherine Stone, Justice
Panel members: Catherine Stone, Justice Karen Angelini, Justice Steven C. Hilbig, Justice
Delivered and Filed: August 13, 2008
AFFIRMED