Court of Appeals
Tenth Appellate District of Texas
10-25-00174-CV
Olivia J. Mack, as Next Friend of M.Y.M.,
her Natural Daughter and a Minor-age Child,
Appellant
v.
Amber Nicole Martinez,
Appellee
On appeal from the
County Court at Law No. 3 of McLennan County, Texas
Judge J. Patrick Atkins, presiding
Trial Court Cause No. 20240572CV3
JUSTICE SMITH delivered the opinion of the Court.
MEMORANDUM OPINION
Olivia J. Mack, as next friend of M.Y.M., her natural daughter and a
minor-age child, appeals from a summary judgment rendered in favor of Amber
Nicole Martinez in Appellant’s personal injury suit. Appellant contends the
trial court erred by failing to apply California law and by erroneously granting summary judgment for Appellee when there are at least thirty material fact
questions.1 We affirm.
BACKGROUND
Appellant’s daughter, M.Y.M., attended a science fair for high school
students in California. Appellee and her son also attended the event. On the
final day of the event, while in a crowded hallway, Appellee and M.Y.M.
interacted. They spoke to each other, and, according to M.Y.M., Appellee
pointed her finger at M.Y.M., causing M.Y.M. to take three steps backward,
where she was blocked by the crowd.
Three months later, Appellant filed suit against Appellee alleging
assault, intentional infliction of emotional distress, negligent infliction of
emotional distress, wrongful confinement, “defamation at common law and
California civil section 46-slander, false and unprivileged publication,” and
“defamation at common law and California civil section 46-slander, false and
unprivileged publication per quod.” Appellee filed a motion to dismiss the suit
pursuant to the Texas Citizens Participation Act, which was denied, and a
1 On pages xxxiv through xxxvii of Appellant’s Second Amended Brief, are ten paragraphs under the
heading “Issues Presented.” These un-numbered paragraphs are not in any logical order. The “Argument” portion of the brief begins on page twenty-six and continues, without subheadings, through page fifty-eight. Presenting as an unorganized stream of consciousness riddled with conjecture, the topics follow no particular order and are only loosely but not completely based on the “Issues Presented.” We will do our best to discern the meaning of the arguments, as required by the rules and the Texas Supreme Court. See TEX. R. APP. P. 38.9; Horton v. Stovall, 591 S.W.3d 567, 569 (Tex. 2019) (per curiam).
Mack v. Martinez Page 2 traditional motion for summary judgment, which was granted. After her
motion for new trial was denied, Appellant filed her notice of appeal.
STANDARD OF REVIEW
We review the trial court's decision to grant summary judgment de novo.
Eagle Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 705 (Tex. 2021). The
movant for traditional summary judgment has the burden of showing that
there is no genuine issue of material fact, and it is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(h)(2); Eagle Oil & Gas Co., 619 S.W.3d at
705. A defendant who conclusively negates at least one of the essential
elements of the cause of action or conclusively establishes an affirmative
defense is entitled to summary judgment. Frost Nat'l Bank v. Fernandez, 315
S.W.3d 494, 508 (Tex. 2010). Evidence is conclusive only if reasonable people
could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802,
816 (Tex. 2005). Once the movant establishes its right to summary judgment
as a matter of law, the burden shifts to the nonmovant to present evidence
sufficient to raise a genuine issue of material fact, thereby precluding
summary judgment. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018).
We take as true all evidence favorable to the nonmovant, and we indulge
every reasonable inference in favor of the nonmovant and resolve any doubts
in her favor. KMS Retail Rowlett, LP v. City of Rowlett, 593 S.W.3d 175, 181
Mack v. Martinez Page 3 (Tex. 2019). We credit evidence favorable to the nonmovant if reasonable
jurors could, and disregard contrary evidence unless reasonable jurors could
not. B.C. v. Steak N Shake Operations, Inc., 512 S.W.3d 276, 279 (Tex. 2017);
see also Tex. Dep’t of Pub. Safety v. Tex. Tribune, 731 S.W.3d 772, 792 (Tex.
App. [15th Dist.] 2026, no pet.) (clarifying that all evidence favorable to the
nonmovant will be taken as true if reasonable jurors could do so in deciding
whether there is a disputed issue of material fact). The evidence raises a
genuine issue of fact if reasonable and fair-minded jurors could differ in their
conclusions in light of all the summary judgment evidence. Goodyear Tire &
Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).
CHOICE OF LAW
Appellant contends the trial court erred in not applying California law
to all six of her causes of action. She relies on Sections 146 and 149 of the
Restatement (Second) of Conflict of Laws. She argues that California law
should be applied because deterrence of the tortfeasor is the primary objective
of California law. She asserts that “forum law never controls in cases of an
intentional tort unless the parties consent,” and she has not consented to the
application of Texas law to the motion for summary judgment. She contends
that “the proposition that an intentional tort injury that was suffered in
another state and the conduct giving rise to that injury occurred in another
Mack v. Martinez Page 4 state, that somehow Texas law would be appropriate is absurd and defies the
Second Restatement of Conflicts.”
Applicable Law
Which state’s law governs an issue is a question of law for the court to
decide. Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 204 (Tex. 2000).
Section 71.031 of the Texas Civil Practice and Remedies Code addresses claims
for injury or death caused by a wrongful act, neglect, or default that took place
in a foreign state or country. TEX. CIV. PRAC. & REM. CODE ANN. § 71.031(a).
Subsection (c) provides, “[t]he court shall apply the rules of substantive law
that are appropriate under the facts of the case.” Id. § 71.031(c). Texas courts
use the “most significant relationship” test found in the Restatement (Second)
of Conflict of Laws to decide choice-of-law issues. Wagner, 18 S.W.3d at 205.
Under that test, a court considers which state’s law has the most significant
relationship “to the particular substantive issue to be resolved.” Id. Section
71.031(c) has been construed to incorporate the Restatement’s most-significant
relationship test. See Stevenson v. Ford Motor Co., 608 S.W.3d 109, 121-22
(Tex. App.—Dallas 2020, no pet.).
Section 6(2) of the Restatement requires us to consider the relative
interests of the respective states in having their laws applied to the case. That
section sets out general factors relevant to the choice-of-law question, which
Mack v. Martinez Page 5 include the needs of the interstate system, the relevant policies of the forum
and other interested states, the protection of justified expectations, certainty,
predictability, and uniformity of result, and ease in determining and applying
the applicable law. RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6(2)
(1971); Wagner, 18 S.W.3d at 205.
In a torts case, where the injury and tortious behavior occurred, the
domicile of the parties, and the place where the relationship between the
parties is centered are all relevant factors to consider. RESTATEMENT (SECOND)
OF CONFLICT OF LAWS § 145(2) (1971); Torrington Co. v. Stutzman. 46 S.W.3d
829, 848 (Tex. 2000); Wagner, 18 S.W.3d at 205 n.1. In such instances, the
Restatement’s “most significant relationship test” includes a presumption in
favor of applying the law of the place where the injury occurred unless, under
the principles stated in Section 6, another state has a more significant
relationship to the occurrence and the parties, in which event the law of the
other state will be applied. RESTATEMENT § 146. In the context of tort cases,
the factors of the justified expectations of the parties and of certainty,
predictability, and uniformity of result are of lesser importance. See
Vanderbilt Mortg. & Fin., Inc. v. Posey, 146 S.W.3d 302, 314 (Tex. App.—
Texarkana 2004, no pet.).
Mack v. Martinez Page 6
The Restatement generally encourages courts to rely less on the Section
6 general principles than on the application of the factors found in the sections
addressed to the specific types of claims. Alarcon v. Velazquez, 552 S.W.3d 354,
361 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). The contacts relevant
to those sections are to be evaluated according to their relative importance with
respect to the particular issue. Id. at 362. The number of contacts with a state
are not determinative; rather, we evaluate them in light of the state policies
underlying the particular substantive issue. Id.
The primary purpose of awarding compensatory damages in civil actions
is not to punish the defendant, but to fairly compensate the injured plaintiff.
Torrington Co., 46 S.W.3d at 848. A state’s compensatory damage law balances
the need to compensate the plaintiff against the goal of protecting resident
defendants from undue liability and excessive litigation. Id. at 849. The most
important contacts in determining which state’s law governs compensatory
damages will usually be the ones with the most direct interest in the plaintiff’s
monetary recovery and/or the most direct in protecting the defendant against
financial hardship. Id.
Discussion
The site of the alleged injury, California, is a factor to consider in
determining which state’s law applies. See RESTATEMENT § 145(2). However,
Mack v. Martinez Page 7 in applying the most significant relationship test, and considering other
pertinent factors, we agree with the trial court that Texas law applies here.
Appellant, M.Y.M., Appellee, and Linda Morris, a co-director of the Central
Texas Science and Engineering Fair and the only named witness to the
incident at issue, are all Texas residents. At the time of the incident, they were
in California attending an international science fair. M.Y.M. and Appellee’s
son, D.M., were selected to attend the fair by the directors of the Central Texas
Science and Engineering Fair. Texas has a strong policy interest in protecting
its residents to allow for recovery of adequate compensation for torts
committed against them and seeing its compensatory damages law applied.
See Torrington, Co., 46 S.W.3d at 849. Further, Texas has a significant interest
in protecting resident defendants. Id. at 850.
The words and actions of Appellee were centered on M.Y.M.’s words,
actions and inactions regarding Appellee’s son, D.M. Other than the parties’
presence in the Los Angeles Convention Center, none of Appellant’s allegations
involve the venue. The fact that the organizers of the science fair chose to have
their event in California bears no relation to the incident between the parties.
Therefore, California does not have a significant interest in the interactions
between the parties.
Mack v. Martinez Page 8
Furthermore, while Appellant’s causes of action are based on events
occurring on May 17, 2024 in California, in her petition she relies on events
and actions occurring in Texas prior to the trip to California to support those
allegations. As summary judgment evidence, Appellee attached her affidavit
in which she explained that the relevant interactions between M.Y.M,
Appellee, and D.M. started in February 2024. She further testified that, before
the California trip, M.Y.M. and D.M. had “issues” at school. Appellee also
attached an email she sent to the principal of China Spring High School a
month before the trip to California. In the email, she indicated there was some
conflict between M.Y.M. and D.M. Thus, the parties’ relationship is centered
on activities at China Spring High School in China Spring, Texas. See
RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145(2)(d).
Although the alleged injury occurred in California, the place of injury
bears little relation to the occurrence and parties. See Torrington. 46 S.W.3d
at 849-50. In that circumstance, the site of the injury or where the tortious
behavior occurred is not an important contact. See id. Texas has a more
significant relationship to the occurrence and the parties. We conclude that
Appellee proved as a matter of law that Texas law applies in this case. Eagle
Oil & Gas Co., 619 S.W.3d at 705.
Mack v. Martinez Page 9
Appellant presented M.Y.M.’s thirty-one-page affidavit together with its
fifteen exhibits in support of her response to Appellee’s motion for summary
judgment. In M.Y.M.’s affidavit, she explained that she and D.M. both ran for
National Honor Society president at their school and, while they were in
California, they learned that M.Y.M. won the election. She explained that for
three years she helped D.M. significantly and described their interactions
involving their high school science fair club, their classes together, student
council, and attendance at the state science fair.
The exhibits attached to M.Y.M.’s affidavit included: text messages
between Appellant and M.Y.M regarding the incident at the science fair and
M.Y.M.’s feelings; a text message from one of M.Y.M.’s friends regarding
M.Y.M.’s feelings; group texts regarding registration for and attendance at a
March 2024 science fair at Texas A & M University; text messages between
M.Y.M. and D.M. about the science club, social activities, and school work;
M.Y.M.’s medical records; a table entitled “Documented acts of kindness
toward Defendant’s family & Defendant’s son DM;” copies of Texas Penal Code
Sections 36.02 and 43.24; the lyrics of two songs; photos taken at the science
fair and the airport in California; photos of Appellee’s daughter; screenshots of
a McLennan County Community College dual credit history class online
assignment dated November and December 2024; certified mail receipt and
Mack v. Martinez Page 10 tracking history; a copy of the citation served on Appellee; a copy of emails from
Appellee to Dr. Rutherford, the school principal, dated April 18, 2024 and May
22, 2024; screen shots showing case information of a case filed by Appellee; a
screen shot of an email forwarded to M.Y.M. from Dr. Rutherford regarding
the science fair; photos of M.Y.M. engaged in volunteer work; Appellant’s
affidavit dated December 26, 2024; and the affidavit of David Mack, M.Y.M.’s
father, dated December 27, 2024.
M.Y.M.’s affidavit and exhibits reinforce the ongoing relationship
between M.Y.M., D.M., and Appellee. The entirety of that relationship exists
in Texas. M.Y.M. and Appellee were in contact regarding extracurricular
activities in Texas, they attended the science fair in California together for a
few days as part of a small contingent from their Texas high school, and then
returned to Texas. Appellant’s causes of action are based on words and actions
of Appellee stemming from the parties’ relationship. Even taking all of
Appellant’s evidence as true, nothing in Appellant’s summary judgment
evidence indicates a connection between Appellee’s words and actions and the
state of California. Thus, nothing in Appellant’s summary judgment evidence
raises a fact question as to whether Texas is the state with the most significant
relationship to the issue to be resolved. See Wagner, 18 S.W.3d at 205.
Appellant did not meet her burden to present sufficient evidence to raise a
Mack v. Martinez Page 11 genuine issue of material fact precluding summary judgment on the choice of
law issue. See Lujan, 555 S.W.3d at 84. Accordingly, the trial court did not
err in applying Texas law to this case.
PERJURY
Appellant asserts that the trial court erred in “not striking Appellee’s
Pleadings and affidavit for aggravated perjury in her sworn affidavit as to
when she received notice of Appellant’s petition.” She further contends that
the trial court erred in granting Appellee’s motion for summary judgment in
light of the aggravated perjury in Appellee’s affidavit asserting she “was
‘stunned’ on August 30, 2024 when she first saw Appellant’s allegations.”
In her response to Appellee’s motion for summary judgment, Appellant
objected to Appellee’s summary judgment evidence on the basis of “falsity of
statements,” among other complaints. She argued that the statement that
Appellee was stunned on August 30, 2024, inferring that she first received
effective service and notice of the suit on August 30, 2024, is a “patent
falsehood and perjured statement.” Appellant has not provided a record
citation showing the trial court ruled on her objection. Although we reviewed
the record, we were unable to find a ruling.
Appellant’s contention that Appellee’s affidavit contains false
statements indicating she perjured herself is an objection to a defect of form.
Mack v. Martinez Page 12 See Austin v. Countrywide Homes Loans, 261 S.W.3d 68, 74 (Tex. App.—
Houston [1st Dist.] 2008, pet. denied) (held that failure to object and obtain
ruling for argument that affidavit is “fabricated” results in waiver). A party
objecting to an affidavit based on a defect of form must not only object but also
obtain a ruling on its objection. TEX. R. APP. P. 33.1(a); Seim v. Allstate Tex.
Lloyds, 551 S.W.3d 161, 166 (Tex. 2018) (per curiam). Because Appellant did
not obtain a ruling on her objection, this complaint is waived.
CIVIL ASSAULT
Appellant contends the trial court erred in “not finding grounds for
assault.” In the “Statement of the Case” section of her brief, Appellant asserts
that “Appellee’s actions were so reckless as to the potential of causing bodily
injury that they fall under Texas Penal Code Section 22.01(a)(1).” In the
“Argument” section of her brief, Appellant asserts that Appellee committed a
civil assault with physical gestures, movements invading M.Y.M.’s body space,
and repeated hateful comments directed to M.Y.M. Appellant claims that
M.Y.M. suffered bodily injury including pain and impairment due to the
reckless conduct of Appellee. She argues that:
[I]n the eyes of a reasonable 14 year old person that
this conduct on the part of a middle-age adult at such
a serious event with a large police presence
demonstrates out of control behavior and underscores
the reasonable fear of an actual assault that might
Mack v. Martinez Page 13
occur that would be experienced by a fourteen year
(sic) reasonable person under the circumstances.
In her petition, Appellant alleged that Appellee “acted with the intention
to cause harmful or offensive contact or intending to place [M.Y.M.] in fear of
a harmful or an offensive contact” by shaking her finger directly in M.Y.M.’s
face with each word and moving toward M.Y.M. as M.Y.M. backed up.
Appellant alleged that Appellee’s actions caused M.Y.M. physical pain and
mental suffering.
In her motion for summary judgment, Appellee asserted entitlement to
summary judgment on Appellant’s assault claim because the claim is not
viable as a matter of law. In her affidavit, Appellee stated that, at the science
fair on May 17, 2024, she discussed the issue of bullying with M.Y.M. and
explained to her that her behavior toward D.M. in the prior months made him
feel upset. She denied raising her voice, pointing her finger at M.Y.M., or
making any physical gestures at her.
In Texas, the elements of civil assault are the same as for criminal
assault. Loaisiga v. Cerda, 379 S.W.3d 248, 256 (Tex. 2012). Section 22.01 of
the Texas Penal Code provides that a person commits an assault if the person
(1) intentionally, knowingly, or recklessly causes bodily injury to another,
including the person’s spouse; (2) intentionally or knowingly threatens another
with imminent bodily injury, including the person’s spouse; or (3) intentionally
Mack v. Martinez Page 14 or knowingly causes physical contact with another when the person knows or
should reasonably believe that the other will regard the contact as offensive or
provocative. TEX. PEN. CODE ANN. § 22.01(a).
Appellant cites only to Section 22.01(a)(1). To prove an action for assault
by infliction of bodily injury pursuant to Section 22.01(a)(1) the plaintiff must
prove the defendant made contact with the plaintiff’s person. See Preble v.
Young, 999 S.W.2d 153, 156-57 (Tex. App.—Houston [14th Dist.] 1999, no pet.).
Additionally, to prove an action for assault by offensive contact pursuant to
Section 22.01(a)(3) the plaintiff must establish the defendant made physical
contact with the plaintiff’s person. City of Watauga v. Gordon, 434 S.W.3d 586,
589-90 (Tex. 2014). In her affidavit, Appellee explained that she talked to
M.Y.M. and denied making physical gestures. Thus, Appellee conclusively
negated the element of physical contact, negating applicability of the first and
third theories of assault. To the extent Appellant’s assault claim is based on
Section 22.01(a)(1) and 22.01(a)(3), Appellee met her burden to show
entitlement to summary judgment on Appellant’s assault claim as a matter of
law. See Fernandez, 315 S.W.3d at 508.
In M.Y.M.’s affidavit, she did not say Appellee engaged in any physical
contact, only that Appellee stood very close to her, getting in her face.
Therefore, Appellant did not meet her burden to raise a genuine issue of
Mack v. Martinez Page 15 material fact as to the element of physical contact necessary for a claim
pursuant to the first and third theories of assault. See Lujan, 555 S.W.3d at
84.
Although it is not clear that Appellant alleged in her petition or argued
on appeal that Appellee committed assault by threat pursuant to Section
22.01(a)(2) that argument also fails. The second theory of assault requires
proof that the defendant threatened another with imminent bodily injury.
TEX. PENAL CODE ANN. § 22.01(a)(2). The focus in an assault by threat case is
on the defendant’s words and conduct, and the critical inquiry is whether a
reasonable person under the circumstances would consider the words and
conduct to be an objective threat of imminent bodily injury. See Olivas v. State,
203 S.W.3d 341, 347 (Tex. Crim. App. 2006). The word “imminent” has been
defined to mean “near at hand; . . . impending; on the point of happening.”
Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989) (en banc).
In her affidavit, Appellee stated that she had a discussion with M.Y.M.
in which she explained the effect of M.Y.M.’s behavior on D.M. She denied
raising her voice or making physical gestures toward M.Y.M. This evidence
conclusively negates the element of an intentional or knowing threat required
by Section 22.01(a)(2). See Olivas, 203 S.W.3d at 347; Jones v. Shipley, 508
S.W.3d 766, 770-71 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (held
Mack v. Martinez Page 16 that act of walking aggressively toward complainant and shaking her finger at
him, together with the vague verbal threat to “get” him, does not support a
reasonable inference in the mind of a reasonable person that defendant made
an objective threat to inflict imminent bodily injury). To the extent Appellant’s
assault claim is based on Section 22.01(a)(2), Appellee met her burden to show
entitlement to summary judgment on Appellant’s assault claim as a mater of
law. See Fernandez, 315 S.W.3d at 508.
The burden then shifted to Appellant to raise a genuine issue of material
fact. In her affidavit, M.Y.M. described her interaction with Appellee as
follows:
Amber Martinez then says in a loud voice that makes
me turn around, ‘Would you want to save a seat for
someone who’s been ugly to you?’ (She says this to me.)
I turn around, shocked and feeling threatened
curiously asking, ‘Excuse me?’ (I back up a few steps.)
Amber Martinez says, ‘You have been very ugly to
D.M.!’ (She starts approaching me.)
Linda Morris begins backing away to the side away
from Amber.
Confused, I ask, ‘What do you mean?’ (Reeling
backward, I keep backing up until I can’t anymore
because of other people in line behind me.) . . . .
Amber Martinez says, ‘Don’t say, ‘What do you mean?
You know.’ (To the effect of, ‘You know what you did.’)
(She approaches until she stands right in front of me,
very close, out of control, getting in my face and
holding eye contact.)
I say, ‘I have been nothing but sweet to D.M. this
whole trip!’
Mack v. Martinez Page 17
Amber Martinez shouts, ‘NO! You’re only nice to D.M.
when Ms. Linda is around! Only when she is around!
You know that.’ (She stays close to me in my face, with
a horrible demeaning expression and eye contact,
shaking her finger in my face.)
I reply, ‘I am nothing but nice to D.M. We talk all the
time. I help him at school…’ (I get cut off by Amber.)
Amber Martinez says, ‘NO, you do not! You never help
D.M. at school! He does everything himself. He is
completely independent!’ (She points and shakes her
finger with each word she says, and continues to step
forward as she speaks. I was very afraid that she was
going to become physically violent towards me,
because her actions towards me were clearly with the
intent of putting me in fear of imminent danger.)
I’m forced to take 3 steps back away from Amber.
Amber Martinez says, ‘I don’t know what planet you’re
on! Or what’s going on in that little head of yours!’
(She continues and finally backs away from me,
moving towards Linda.)
I’m completely shocked, and I don’t get a chance to
respond.
The assault by threat statute is conduct-oriented, focusing on the act of
making a threat. See Landrian v. State, 268 S.W.3d 532, 536 (Tex. Crim. App.
2008). Taking as true the statements in M.Y.M.’s affidavit, she described how
Appellee spoke to her, Appellee’s conduct while speaking to her, and how
Appellee’s words and conduct made her feel. Nothing in M.Y.M.’s description
of the encounter can be interpreted as a threat of imminent bodily injury by
Appellee. Further, we have reviewed all of Appellant’s summary judgment
evidence and we determine that Appellant has failed to raise a genuine issue
of material fact regarding the element of an imminent threat of bodily harm
Mack v. Martinez Page 18 required by Section 22.01(a)(2). See Moore v. City of Wylie, 319 S.W.3d 778,
782-83 (Tex. App.—El Paso 2010, no pet.) (held that deposition testimony
wherein plaintiff stated he was terrified during the confrontation with
defendant did not raise a fact issue on the elements of intentionally or
knowingly threatening plaintiff with imminent bodily harm). Accordingly, the
trial court did not err in granting summary judgment in favor of Appellee on
Appellant’s civil assault cause of action.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
In the argument section of her brief, noting that M.Y.M. was fourteen
years old at the time, Appellant asserts that Appellee’s conduct of “getting up
in the face of M.Y.M., while uttering hateful statements and forcing M.Y.M. to
back up three steps into the back of the people behind her,” constitutes
outrageous conduct. Appellant asserts that Appellee knew M.Y.M. was
peculiarly susceptible to emotional distress due to her age and because she had
been disqualified from competing at the science fair and her parents had
returned to Texas. We construe this argument to be an assertion that the trial
court erred in granting summary judgment in favor of Appellee on Appellant’s
causes of action for intentional infliction of emotional distress and negligent
infliction of emotional distress.
Mack v. Martinez Page 19
In her petition, Appellant alleged that Appellee committed intentional
infliction of emotional distress by the same conduct as alleged in her assault
cause of action. She asserted that Appellee engaged in extreme and outrageous
conduct with wanton and reckless disregard of the probability of causing
M.Y.M. to suffer severe emotional distress from being assaulted. She argued
that the alleged assault, and Appellee’s conduct during the remainder of that
day, constituted the actual and proximate cause of M.Y.M.’s severe emotional
distress. Appellant also asserted that Appellee’s conduct was outrageous
because she abused a position of apparent authority, her position in the Texas
Office of the Attorney General, and as “an adult participant parent”
representing the Waco area at the science fair.
In her motion for summary judgment, Appellee asserted that she is
entitled to summary judgment on Appellant’s claims of intentional infliction of
emotional distress and negligent infliction of emotional distress because those
claims are not viable as a matter of law. Specifically, she argued that the facts
asserted in Appellant’s pleadings do not rise to the level of extreme and
outrageous conduct as required to prevail on a claim for intentional infliction
of emotional distress. Further, she contended that Texas does not recognize a
cause of action for negligent infliction of emotional distress.
Mack v. Martinez Page 20
To recover for intentional infliction of emotional distress, a plaintiff must
prove that: (1) the defendant acted intentionally or recklessly; (2) the conduct
was extreme and outrageous; (3) the actions of the defendant caused the
plaintiff emotional distress; and (4) the resulting emotional distress was
severe. Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 (Tex.
1998). The element of extreme and outrageous conduct should be found only
where the conduct has been 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).
Whether a defendant’s conduct is extreme and outrageous, as required
for a claim of intentional infliction of emotional distress, is a question of law.
Bradford v. Vento, 48 S.W.3d 749, 758 (Tex. 2001). Conduct that is merely
insensitive or rude is not extreme and outrageous, nor are mere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities.
Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006). Callous,
meddlesome, mean-spirited, officious, overbearing, and vindictive actions and
words do not rise to the level required to prove intentional infliction of
emotional distress. Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 817-18 (Tex.
2005).
Mack v. Martinez Page 21
Appellant complains of Appellee’s question, “Would you want to save a
seat for someone who’s been ugly to you?” She also complains of Appellee’s
statements:
‘You have been very ugly to D.M.!’
‘Don’t say, ‘What do you mean.’ You know.’
‘NO! You’re only nice to D.M. when Ms. Linda is
around! Only when she is around! You know that.’
‘NO, you do not! You never help D.M. at school! He
does everything himself. He is completely
independent!’
‘I don’t know what planet you’re on! Or what’s going
on in that little head of yours!’
‘I know, I’ve been trying all week.’ (Spoken to Linda
Morris after Morris said, ‘let’s calm down.’)
‘I’m not letting him. Even if he gets a scholarship to
Caltech, I’m just not letting him go! It’s so unsafe
here!’ (Spoken to the group in an elevator at the
airport, regarding her son.)
Appellee never made threats and never used vulgar or obscene language.
Appellee stated in her affidavit that she did not raise her voice or use physical
gestures. The focus of her criticism was her perception of M.Y.M.’s treatment
of her son. With the exception of the complained-of statement at the airport,
the incident was a brief, one-time conversation. We characterize Appellee’s
comments as rude and insensitive, possibly meddlesome and mean-spirited.
See Suberu, 216 S.W.3d at 796; Jackson, 157 S.W.3d at 817-18; Tiller v.
McLure, 121 S.W.3d 709, 714 (Tex. 2003) (per curiam) (phone calls in which
defendant was consistently rude, demanding, curt and insensitive did not rise
Mack v. Martinez Page 22 to the level of extreme and outrageous conduct). As a matter of law, Appellee’s
conduct was not extreme and outrageous as required for a claim of intentional
infliction of emotional distress. See Twyman, 855 S.W.2d at 621.
Because the burden shifted to Appellant to raise a fact issue, we review
Appellant’s summary judgment evidence. See Lujan, 555 S.W.3d at 84. In her
affidavit, M.Y.M. stated that Appellee’s statements shocked her and made her
feel threatened, causing her to back away from Appellee. She said Appellee
stood very close to her, was out of control, had a “horrible demeaning
expression” on her face, and shook her finger in M.Y.M.’s face. M.Y.M. was
“very afraid” that Appellee was going to become physically violent. M.Y.M.
believed Appellee intended to put M.Y.M. in fear of imminent danger. Due to
the encounter, M.Y.M.’s heart was pounding, she was flushed, and she
experienced a stomach ache and other physical responses. Even taking
M.Y.M.’s testimony as true, it is largely directed at her own feelings and
reactions. Her characterization of Appellee’s demeanor and actions does not
describe extreme and outrageous conduct. See Jackson, 157 S.W.3d at 817-18.
Neither M.Y.M.’s affidavit nor the remainder of Appellant’s summary
judgment evidence raises a fact issue on the element of extreme and
outrageous conduct by Appellee. Therefore, Appellant did not meet her burden
Mack v. Martinez Page 23 to defeat summary judgment on her claim for intentional infliction of emotional
distress. See Lujan, 555 S.W.3d at 84.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
Alternatively, Appellant asserted that Appellee committed negligent
infliction of emotional distress through her actions on May 17, 2024. Appellant
argued that Appellee owed a duty to M.Y.M. to act in a “civil non-assaultive
manner” toward the science fair participants. Appellant contended that
Appellee breached this duty and M.Y.M. suffered serious mental distress and
mental injuries as a result of that breach. Texas does not recognize a cause of
action for negligent infliction of emotional distress. Boyles v. Kerr, 855 S.W.2d
593, 594 (Tex. 1993) (op. on reh’g). Accordingly, the trial court did not err in
granting summary judgment in favor of Appellee on Appellant’s negligent
infliction of emotional distress cause of action.
WRONGFUL CONFINEMENT
In her brief, Appellant contends M.Y.M. was “forced to back up or be
trapped by the crowd behind her.” She further claims M.Y.M. “experienced
false imprisonment for fifteen hours.” Although we find no discernable
argument in the brief asserting that Appellant raised a fact question regarding
her wrongful confinement cause of action, we will infer such an argument.
Mack v. Martinez Page 24
In her petition, Appellant asserted, based on the same facts as the
assault cause of action, that Appellee intentionally deprived M.Y.M. of freedom
of movement by use of force, threats of force, menace, and unreasonable duress.
This threat caused M.Y.M. to retreat backward three steps until her back was
blocked by the line behind her. She further alleged “the menace and
unreasonable duress continued throughout the day at the airport and during
the flight back to DFW.” She alleged that Appellee “effectively directed cell
phones to be put away,” depriving M.Y.M. of the ability to request help.
In her motion for summary judgment, Appellee asserted entitlement to
summary judgment on Appellant’s cause of action for wrongful confinement,
contending the claim is not viable as a matter of law. She argued that
Appellant failed to allege any threats by Appellee and that Appellee did not
engage in any conduct constituting wrongful detention.
We interpret Appellant’s claim of wrongful confinement to be a cause of
action for false imprisonment, the elements of which are willful detention,
without consent, and without authority of law. Sears, Roebuck & Co. v.
Castillo, 693 S.W.2d 374, 375 (Tex. 1985) (per curiam). A detention can be
accomplished by violence, by threats, or by any other means that restrains a
person from moving from one place to another. Martinez v. Goodyear Tire &
Rubber Co., 651 S.W.2d 18, 20 (Tex. App.—San Antonio 1983, no writ). Where
Mack v. Martinez Page 25 a detention by threat is alleged, the plaintiff must demonstrate that the threat
was such as would inspire in the threatened person a reasonable fear of injury
to her person, reputation, or property. Randall’s Food Mkts., Inc. v. Johnson,
891 S.W.2d 640, 645 (Tex. 1995). The threat must be calculated to detain, not
just intimidate, the person. Safeway Stores, Inc. v. Amburn, 388 S.W.2d 443,
447 (Tex. App.—Fort Worth 1965, no writ).
In her affidavit, Appellee stated that she had a discussion with M.Y.M.
regarding M.Y.M.’s behavior toward D.M. She denied raising her voice,
pointing her finger, or making any physical gestures. This evidence shows as
a matter of law that Appellee did not detain M.Y.M. and that Appellee met her
burden to show entitlement to summary judgment on the claim of false
imprisonment. See Fernandez, 315 S.W.3d at 508; Castillo, 693 S.W.2d at 375.
The burden then shifted to Appellant to raise a fact question. Appellant
bases her false imprisonment claim on Appellee’s words, which as explained
above, did not include any verbal threats, and her close physical proximity to
M.Y.M., together with the act of shaking her finger in her face. Attached to
M.Y.M.’s affidavit are three photos taken at the science fair showing long lines
in the hallway. It appears there are two lines, with several feet of empty
walkway between the lines. The photos do not support M.Y.M.’s contention
that she could not back up anymore because of other people in line. Even
Mack v. Martinez Page 26 taking as true M.Y.M.’s statements that she felt threatened, Appellee had a
“horrible demeaning expression,” and M.Y.M. was afraid Appellee would
become physically violent, this evidence indicates M.Y.M.’s state of mind. At
most, M.Y.M.’s testimony shows she was intimidated. Appellant’s evidence
does not show a reasonable fear of injury. See Johnson, 891 S.W.2d at 645.
Appellant argues that M.Y.M. “actually experienced false imprisonment
for fifteen hours.” This argument is not supported by M.Y.M.’s affidavit
testimony. After the incident between M.Y.M. and Appellee, M.Y.M. went into
the auditorium for the final science fair event, where she did not sit with
Appellee. Then she and Morris went to their hotel, and then to the airport.
Appellee and her family drove separately. At the airport, M.Y.M. tried to keep
her distance from Appellee. After an uncomfortable elevator ride and group
lunch, M.Y.M. sat next to D.M. on the plane, feeling “completely trapped.”
Upon arriving in Texas, Appellee and her family drove back to Waco separately
from M.Y.M. and Morris. None of Appellee’s actions after leaving the science
fair, as described by M.Y.M., constitute a threat to detain M.Y.M. See Amburn,
388 S.W.2d at 447. We conclude that Appellant did not raise a genuine issue
of material fact regarding the element of detention. See Lujan, 555 S.W.3d at
84. Appellant did not meet her burden to defeat summary judgment on her
Mack v. Martinez Page 27 claim for wrongful confinement, which we construe as a claim for false
imprisonment. See id.
DEFAMATION
In her brief, regarding her causes of action for slander, Appellant
contends the trial court was in error in questioning whether the statements
made by Appellee could be mere opinion and therefore not actionable slander.
She asserts that M.Y.M.’s reputation was “irrevocably trashed and tarnished”
by Appellee’s actions. She contends that Linda Morris’s excited utterances,
explanations, and excuses show that Appellee’s conduct and statements were
outside the conduct normally tolerated in a civilized society. Appellant asserts
that the falsity of Appellee’s statements that M.Y.M. never helped her son is
documented by evidence she presented that D.M. plagiarized M.Y.M.’s
schoolwork. She argues that this evidence shows D.M. was accustomed to
borrowing work from M.Y.M. and that Appellee was reckless in not recognizing
the help M.Y.M. provided for her son. We construe Appellant’s contentions to
be an assertion that the trial court erred in granting summary judgment in
favor of Appellee on Appellant’s causes of action for defamation at common law
and slander per quod.
In her petition, based on the same facts as all of her other causes of
action, Appellant alleged that Appellee committed defamation at common law
Mack v. Martinez Page 28 and per quod.2 She asserted that Appellee’s statements, which were overheard
by Linda Morris and people nearby, were “patently false and were made with
the intent to destroy [M.Y.M.’s] reputation.” She also asserted that Appellee
made the statements with actual malice, that is, with knowledge of their
falsity, or, alternatively, with a reckless disregard for their falsity or serious
doubts as to their truth. Appellant asserted that Appellee’s statements
attacked M.Y.M.’s honesty and diminished her reputation in general, in the
science community, and for leadership of the China Springs High School
science fair club. She alleged that M.Y.M. has suffered harm to her reputation,
shame, mortification, and hurt feelings, and been forced to undergo
professional counseling as a result of this incident.
In her motion for summary judgment, regarding Appellant’s slander and
slander per quod causes of action, Appellee argued that the statements
Appellant complains of are not actionable as a matter of law. Therefore,
Appellee asserted, she is entitled to summary judgment on Appellant’s slander
and slander per quod causes of action.
Defamation is a tort, the threshold requirement for which is the
publication of a false statement of fact to a third party. Dallas Morning News,
Inc. v. Tatum, 554 S.W.3d 614, 623 (Tex. 2018). The fact must be defamatory
2 She also alleged violations of California statutes but, as explained above, California law does not
apply in this case.
Mack v. Martinez Page 29 concerning the plaintiff, and the publisher must make the statement with the
requisite degree of fault. Id. Slander is a defamatory statement expressed
orally. Id.
In a defamation case, the threshold question is whether the words used
are reasonably capable of a defamatory meaning, which is a question of law for
the court. Id. at 624; Carr v. Brasher, 776 S.W.2d 567, 570 (Tex. 1989). A
defamatory statement is one that tends to harm the reputation of another as
to lower him in the estimation of the community or deter third persons from
associating or dealing with him. Innovative Block of S. Tex, Ltd. v. Valley
Builders Supply, Inc., 603 S.W.3d 409, 417 (Tex. 2020).
If a statement is not verifiable as false, it is not defamatory. Tatum, 554
S.W.3d at 624. Even when a statement is verifiable as false, it does not give
rise to liability if the entire context in which it was made discloses that it is
merely an opinion masquerading as a fact. Id. A statement may be false,
abusive, and unpleasant without being defamatory. Free v. American Home
Assur. Co., 902 S.W.2d 51, 54 (Tex. App.—Houston [1st Dist.] 1995, no writ).
A communication that is merely unflattering, annoying, irksome, or
embarrassing, or that hurts only the plaintiff’s feelings is not actionable.
Means v. ABCABCO, Inc., 315 S.W.3d 209, 214 (Tex. App.—Austin 2010, no
Mack v. Martinez Page 30 pet.). Criticism alone is not necessarily defamatory. See Double Diamond, Inc.
v. Van Tyne, 109 S.W.3d 848, 855 (Tex. App.—Dallas 2003, no pet).
Texas recognizes the common-law rule that defamation is either per se
or per quod. Tatum, 554 S.W.3d at 624. Defamation per se occurs when a
statement is so obviously detrimental to one’s good name that a jury may
presume general damages, such as for loss of reputation or for mental anguish.
Id. The Texas Supreme Court has referred to this type of defamation as
“textual defamation” and explained that it occurs when a statement’s
defamatory meaning arises from the words of the statement itself, without
reference to any extrinsic evidence. Id. at 626. The Supreme Court has
referred to defamation per quod as “extrinsic defamation,” that is, defamation
that does require reference to extrinsic circumstances. Id.
The specific statements Appellant complained of in the defamation
section of her petition are as follows:
‘Would you want to save a seat for someone who’s been
ugly to you?’
‘You have been very ugly to D.M.!’
‘Don’t say, What do you mean? You know.’
‘NO! You’re only nice to D.M. when Ms. Linda is
around! Only when she is around! You know that.’
‘NO, you do not! You never help D.M. at school! He
does everything himself, he is completely
independent!’
‘I don’t know what planet you’re on! Or what’s going
on in that little head of yours!’
Mack v. Martinez Page 31
Taking as true Appellant’s assertion that Appellee made these
statements, the statements are merely hyperbole and not defamatory. See
Milkovich v. Lorain Journal Co., 497 U.S. 1, 17, 20 (1990); Backes v. Misko,
486 S.W.3d 7, 26 (Tex. App.—Dallas 2015, pet. denied) (explaining that
rhetorical hyperbole is extravagant exaggeration employed for rhetorical
effect). Appellee’s assertion that M.Y.M. was ugly to D.M. is figurative,
employed as metaphor or hyperbole, and not defamatory. See Falk & Mayfield
L.L.P. v. Molzan, 974 S.W.2d 821, 824 (Tex. App.—Houston [14th Dist.] 1998,
pet. denied). Although the statements may have hurt M.Y.M.’s feelings,
embarrassed her, and upset her, the statements are at most Appellee’s
opinions and not actionable defamatory statements. See Tatum, 554 S.W.3d
at 624.
We come to the same conclusion when considering the statements in
light of the extrinsic circumstances. The statements were made in a public
hallway of a convention center in Los Angeles, California while the parties
attended a science fair. They were overheard by Linda Morris. According to
M.Y.M, Morris asked the parties to calm down. M.Y.M. further stated in her
affidavit that, after the event concluded, Morris told M.Y.M. that she thought
Appellee’s statements were inappropriate and that Morris told Appellee the
statements were inappropriate. Morris also commented that “we” need to
Mack v. Martinez Page 32 make sure that what “we” say is not offensive. Morris went on to explain that
Appellee told her “this was about the election and something [M.Y.M.’s] mom
said to D.M. last night.” M.Y.M. explained to Morris that she and D.M. both
ran for president of their National Honor Society chapter and they just found
out that M.Y.M. won. The circumstances show that Appellee was upset
because her son lost an important election to M.Y.M. Contrary to Appellant’s
assertion, the extrinsic facts do not reveal a hidden meaning behind Appellee’s
comments, one intended to relay to Morris that M.Y.M.’s leadership abilities
should be questioned. Nothing in the circumstances transforms Appellee’s
hyperbole into defamation.
Accordingly, the trial court did not err in determining that the
complained-of statements are not capable of a defamatory meaning. Carr, 776
S.W.2d at 570; Backes, 486 S.W.3d at 26; Falk, 974 S.W.2d at 824. It follows
that the trial court did not err in granting Appellee’s motion for summary
judgment on the claims for defamation per se and defamation per quod. See
Fernandez, 315 S.W.3d at 508.
MOTION FOR NEW TRIAL
In her brief, Appellant appears to contend the trial court erred in denying
her motion for new trial and refusing to allow her to conduct discovery and
amend her petition. In the trial court, Appellant filed a motion for new trial
Mack v. Martinez Page 33 and motion to modify, correct, and reform the judgment and motion for
reconsideration to permit her to amend her petition and conduct discovery.
She reasserted her complaints that she was denied discovery, Appellee
perjured herself, Appellee’s statements constitute actionable defamation, and
Appellant raised issues of material fact. She presented no new evidence for
the court’s consideration.
The standard of review for a motion to reconsider a prior summary
judgment is whether the trial court abused its discretion. Tex. Petroleum Land
Mgmt., LLC v. McMillan, 641 S.W.3d 831, 850 (Tex. App.—Eastland 2022, no
pet.). A trial court does not abuse its discretion unless it acts without reference
to guiding rules or principles. Id. Where, as here, Appellant cites no additional
evidence with her motion to reconsider beyond the evidence available to her
when the summary judgment was granted, the trial court does not abuse its
discretion in denying the motion. Id.
CONCLUSION
The trial court did not err in applying Texas law or in granting summary
judgment in favor of Appellee on Appellant’s causes of action for civil assault,
intentional infliction of emotional distress, negligent infliction of emotional
distress, wrongful confinement, defamation per se, and defamation per quod.
Mack v. Martinez Page 34 Finally, the trial court did not abuse its discretion in denying Appellant’s
motion for new trial. We overrule all of Appellant’s issues.3
We affirm the trial court’s judgment.
STEVE SMITH
Justice
OPINION DELIVERED and FILED: August 13, 2026
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirm
CV06
3 Appellant asserted numerous arguments that we need not address including: whether M.Y.M.’s age
in conjunction with Morris’s age created a fact issue; whether the question of a minor’s right to bring a lawsuit impacted the trial court’s ruling; whether the trial court erred in denying her requests to engage in discovery and present oral testimony; whether Appellee’s TCPA motion included an admission that Appellee made defamatory and outrageous statements; whether there are fact issues regarding barratry, bribery, public corruption, D.M.’s transfer to a different school, or M.Y.M.’s injuries; whether there is a fact issue regarding whether M.Y.M. is a liar who engaged in bullying, whether she turned in her forms for the event, and whether she claimed co-ownership of D.M.’s project; whether there is a fact issue regarding whether Appellee fabricated evidence, sent libelous emails to the high school principal, or made statements with malice; whether there is a fact issue regarding any police intervention at the science fair; and all allegations of stalking and other criminal behavior by D.M. and substance abuse by Appellee. See TEX. R. APP. P. 47.1.
Mack v. Martinez Page 35