BILL WYLY DEVELOPMENT INC AND WILLIAM WYLY v. ERON SMITH AND HANNA SMITH (2023)

CONCURRING AND DISSENTING OPINION

Reversed and Rendered in Part, Affirmed as Modified in Part, and Majority Opinion and Concurring and Dissenting Opinion filed July 6, 2023.

While I concur in the portion of this court's judgment affirming the award of trespass damages, I dissent to the portion of this court's judgment that reverses the award of damages for intentional infliction of emotional distress as a matter of law.

The trial court rendered judgment as follows:

CAME ON FOR TRIAL ON THE MERITS, and Eron Smith and Hanna Smith (“Plaintiffs”) appeared in person and by and through their attorney of record Charles B. Kirklin, Kirklin, The Kirklin Law Firm, P.C. and Bill Wyly Development. Inc (“Defendant”) and William Wyly (“Third Party Defendant”) collectively referred to as “Defendants” appeared in person and by and through their attorney of record Thomas W. McQuage and a jury was duly impaneled and sworn in and the parties each presented their evidence through testimony and documentation and each side presented their arguments and the jury deliberated and returned a verdict in favor of the Plaintiffs in the amount of $32,500.00.

WHEREFORE, PREMISES CONSIDERED, the Court hereby

ORDERS, ADJUDGES, AND DECREES that Plaintiffs Eron Smith and Hanna Smith have judgment against Defendants William Wyly and Bill Wyly Development. Inc for the sum of Thirty Two Thousand and five hundred dollars ($32,500.00), plus prejudgment interest at the rate of 5% per annum, in the amount of $11,143.37 (calculated from November 24, 2014) until this Final Judgment is signed, plus post judgment interest at the rate of 5% per annum, compounded, annually, on the full amount of this Final Judgment until paid in full, plus costs of court. This is a final and appealable judgment which disposes of all issues and all parties.

SIGNED AND ENTERED THE 1 DAY OF April, 2022.

Even were I to agree with the majority's analysis of William Wyly's conduct, the jury: (1) found in its answer to questions 7 and 9 that Bill Wyly Development, Inc. intentionally inflicted emotional distress upon Eron Smith and Hanna Smith with malice and (2) found in its answer to question 8 that $21,000 would fairly and reasonably compensate Eron Smith and Hanna Smith for either the conduct of William Wyly or Bill Wyly Development, Inc., or both. Bill Wyly Development, Inc. has not argued on appeal that the trial court erred in rendering judgment on the jury's answer to questions 7, 8, and 9.

There is no basis for this court to reverse the judgment for intentional infliction of emotional distress for both appellants. Bill Wyly Development, Inc. has waived its argument on appeal, and it is not this court's place to make such an argument. Tex. R. App. P. 38.1(i). The majority's opinion is unnecessary on the issue of intentional infliction of emotional distress, and I therefore decline to join it. Furthermore, I express no opinion on whether legally sufficient evidence exists to support an award of damages against William Wyly for intentional infliction of emotional distress.

Charles A. Spain Justice