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.