Bobbie J. Clay v. James Earl Sutton

Judgment rendered March 4, 2020.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,333-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

BOBBIE J. CLAY Plaintiff-Appellee

versus

JAMES EARL SUTTON Defendant-Appellant

*****

Appealed from the
Monroe City Court for the
Parish of Ouachita, Louisiana
Trial Court No. 2019CV00032

Honorable Jefferson B. Joyce, Judge

*****

JAMES EARL SUTTON In Proper Person,
Appellant

BOBBIE J. CLAY In Proper Person,
Appellee

*****

Before PITMAN, GARRETT, and COX, JJ.

PITMAN, J.

Defendant James Earl Sutton appeals the judgment of the trial court

rendered in favor of his ex-wife, Plaintiff Bobbie J. Clay, in the amount of

$3,500, which was awarded to her after she filed a suit for “extreme mental

and emotional abuse.” For the following reasons, the judgment of the trial

court is reversed.

FACTS

Plaintiff filed suit in proper person seeking $10,000 against Defendant

and alleged that the suit sought damages for extreme mental and emotional

abuse by her former spouse. A trial was held on February 19, 2019, and

resumed February 21, 2019. The following evidence was adduced.

Plaintiff and Defendant were married to each other in October 2017

and divorced in November 2018. According to Plaintiff, the marriage was

contentious from the very beginning. After the ceremony, Defendant left his

new bride, Plaintiff, at the church and drove away with his ex-wife, their

children and grandchildren in his truck with “just married” written on it.

Plaintiff went home alone. Plaintiff’s one stipulation prior to marriage to

Defendant was that he not be diabetic, because she wanted an intimate

relationship with him, and her former partner had been diabetic and unable

to perform. Apparently, Defendant lied to Plaintiff and claimed his health

was good, but he had been told he was “pre-diabetic.” Plaintiff claimed that

the marriage was not consummated and that Defendant refused to take

medication prescribed by the doctor. Defendant disputed Plaintiff’s version

of these and other facts.

According to Plaintiff, in addition to lying about being diabetic,

Defendant did many things to irritate Plaintiff, including taking his ex-wife

and their children to church every Sunday—the same church where Plaintiff

sang in the choir. This was extremely humiliating to Plaintiff because

Defendant sat in church with his ex-wife and children while she was singing,

and everyone at their church witnessed this outlandish behavior and

wondered about what type of wife she was being to him. Also, over

Plaintiff’s objections, Defendant allowed his ex-wife to ride in the front seat

of the truck to church. Plaintiff asked that the ex-wife be relegated to ride in

the back seat, but the ex-wife refused to ride there, and Defendant did not

insist that she do so. Defendant claims he discussed this with Plaintiff and

that Plaintiff accepted the situation with his ex-wife.

Plaintiff incurred many expenses while married to Defendant. She

began insuring him on her automobile policy to save him money. In an

attempt to fit in with her new husband’s family, she purchased 20 bicycles

for his grandchildren. Defendant claimed he told her not to purchase the

bikes, as did his daughter and other family members.

Plaintiff soon tired of the relationship, out of which she was getting

nothing except aggravation and humiliation, so after 4 1/2 months of

marriage, she gathered Defendant’s clothes and other belongings and made

him leave the matrimonial domicile. The couple divorced a year and a

month after they married. Plaintiff was represented, pro bono, by a friend.

After the facts of the unhappiness in the marriage were established

and Plaintiff’s complaints concerning the debts she incurred as a result of the

marriage were heard, the trial court attempted to establish the basis for

Plaintiff’s cause of action.

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The trial court asked:

So, these things like that you—the money you expended out for
him and everything, why didn’t you raise these in the divorce to
say, “I should be owed these, you know, the 20 bikes, or the—
this was the insurance and all that.” These, you know—when
you’re separating your community property, or you’re
separating up your divorce, you say these are those things.

Plaintiff responded by stating that her attorney advised her that if

property had to be settled, the action would cost her more than she could

afford, so she decided to just get divorced. She stated she would not have

sued Defendant in the action at bar except for the amount of debt she had as

a result of her marriage to him.

The trial court, without noting that her cause of action was infliction

of emotional abuse, told Plaintiff that the proof of her claim was insufficient

concerning the 20 bicycles and the wedding expenses. In response, Plaintiff

stated:

In all fairness, I didn’t sue him for the bicycles or whatever
went on at the wedding or afterwards. I sued him because of
what I feel in my heart. What he did to me was unnecessary. It
took away my choice to decide whether or not I wanted to
marry a man with diabetes. And if he had told me, if I loved
him enough, I would have married him regardless, but that
choice was taken away from me because he lied about being a
diabetic. So that’s why I sued him for $10,000.

The trial court asked her, “So you’re not asking for anything back on

the bikes or the wedding?” Plaintiff responded, “I sued him for that reason.”

Neither Plaintiff nor Defendant was represented by counsel. The trial

court explained to Plaintiff that she needed to provide proof of the debts for

which she was claiming damages and that testimony alone that the debts

existed was not enough for it to rule in her favor. It explained to Defendant

that if he objected to any of these claims for damages or could show that he

had reimbursed her, he, too, would have to provide proof to the court that the
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money was not owed. It also indicated to Plaintiff that if she was claiming

damages for infliction of emotional abuse, she would have to provide proof

of the value of her claim, which could be through testimony of counselors or

psychologists. It informed Plaintiff and Defendant that it would hold

another day open for further evidence to allow them to gather financial

information, credit card statements, etc., to prove their respective cases.

A few days later, the parties returned to court, whereupon Plaintiff

stated that she was unable to obtain the necessary proof because Wal-Mart

could not provide her with the information she needed for another nine days.

She gave the court the information she had, which the court did not find

helpful. Her credit card receipt reflected purchases from Wal-Mart, but did

not indicate the exact items. The trial court allowed her to supplement the

record in March 2019 with the proof she later obtained from other sources.

On April 11, 2019, the trial court entered judgment in favor of

Plaintiff and against Defendant in the amount of $3,500 plus court costs and

judicial interest from the date of demand. No reasons for judgment were

rendered orally or in writing, leaving it unclear as to why, or on which basis,

it awarded judgment in Plaintiff’s favor. Defendant appeals the judgment of

the trial court.

DISCUSSION

Defendant appealed the judgment simply because he did not think it

should have been rendered against him.

In White v. Monsanto Co., 585 So. 2d 1205 (La. 1991), the tort of

intentional infliction of emotional distress was adopted as a viable cause of

action. The court stated that one, who by extreme and outrageous conduct

intentionally causes severe emotional distress to another, is subject to
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liability for such emotional distress, and if bodily harm to the other results

from it, for such bodily harm. Id. The conduct must be 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. Id. In order to recover for intentional infliction of emotional

distress, a plaintiff must establish (1) that the conduct of the defendant was

extreme and outrageous; (2) that the emotional distress suffered by the

plaintiff was severe; and (3) that the defendant desired to inflict severe

emotional distress or knew that severe emotional distress would be certain or

substantially certain to result from his conduct. Id.

In Covington v. Howard, 49,135 (La. App. 2 Cir. 8/13/14), 146 So. 3d

933, writ denied, 14-1927 (La. 11/21/14), 160 So. 3d 973, this court noted

that although negligent infliction of emotional distress (“NIED”) is not an

independent tort like battery, trespass or intentional infliction of emotional

distress, it is now well established in Louisiana jurisprudence that a claim for

NIED unaccompanied by physical injury is viable under La. C.C. art. 2315,

which provides, in pertinent part, that “[e]very act whatever of man that

causes damages to another obliges him by whose fault it happened to repair

it.” Id. Courts utilize a duty-risk analysis to assist in determining whether

one may recover under La. C.C. art. 2315. Id. For liability to attach, a

plaintiff must prove five separate elements: (1) the defendant had a duty to

conform his or her conduct to a specific standard of care (the duty element);

(2) the defendant failed to conform his or her conduct to the appropriate

standard (the breach of duty element); (3) the defendant’s substandard

conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact

element); (4) the defendant’s substandard conduct was a legal cause of the
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plaintiff’s injuries (the scope of liability or scope of protection element); and

(5) actual damages (the damages element). Id. A negative answer to any of

those inquiries results in a determination of no liability. Id.

In the case at bar, Plaintiff failed to prove the elements necessary to

recover for the tort of either intentional or negligent infliction of emotional

distress. Plaintiff testified that she was humiliated by Defendant’s actions in

leaving the church after their wedding with his ex-wife and seriously

disturbed by other behavior, including the falsehood that he did not suffer

from diabetes; however, she failed to prove that she has sought any

treatment for the emotional damages she allegedly suffered. Further, she did

not prove that Defendant desired to inflict severe emotional distress or knew

that severe emotional distress would be certain or substantially certain to

result from his conduct.

The evidence Plaintiff presented to the trial court addressed only

issues which were more properly settled in the couple’s divorce suit.

Plaintiff produced no evidence substantiating her cause of action for

infliction of emotional distress; thus, the judgment of the trial court must be

reversed.

La. C.C.P. art. 2164 concerns the scope of the appeal and the award of

damages and the taxation of costs in the lower court and this court and states

that this court may make any such decision that it considers equitable.

Defendant was allowed to file this appeal in forma pauperis and was

allowed to proceed without payment. For this reason, it would be

inequitable to assess the costs of the appeal against Plaintiff now that the

judgment in her favor is being reversed. Therefore, we choose to forgo the

assessment of costs against her.
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CONCLUSION

For the foregoing reasons, the judgment in the amount of $3,500

rendered in favor of Plaintiff Bobbie J. Clay and against Defendant James

Earl Sutton is hereby reversed. Because this appeal was filed in forma

pauperis, the costs of the appeal will not be assessed to either party.

REVERSED.

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