Gonzales v. Five Star Quality Care-TX LLC et al

Filing 18

MEMORANDUM OPINION AND ORDER granting 5 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

MARTIN J. GONZALES,

§
§

Plaintiff,

§
§
§
§
§
§
§
§

v.

SNH SE TENANT TRS, INC.
and RBC CAPITAL MARKETS, LLC,
Defendants.

CIVIL ACTION NO. H-14-3086

MEMORANDUM OPINION AND ORDER

Plaintiff, Martin J. Gonzales, filed a First Amended Complaint
on December 19, 2014 (Docket Entry No.4).
alleges

a

tortious

number of

claims,

including

interference with contract

court is Defendant SNH SE Tenant TRS,

Plaintiff's complaint

inter alia

rights.

a

claim for

Pending before the

Inc. d/b/a The Gardens of

Bellaire's Rule 12(b) (6) Motion to Dismiss for Failure to State a
Claim (Docket Entry No.5).

The motion argues that the claim for

tortious interference with contract rights asserted against The
Gardens of Bellaire should be dismissed with prejudice pursuant to
Federal Rule of Civil Procedure 12(b) (6)
claim

for

which

relief

Response on January 29,

may
2015

be

granted.

for failure to state a
Plaintiff

(Docket Entry No.

11).

filed

his

For the

reasons explained below, the pending motion will be granted, and
the claim for tortious interference with contract rights asserted
against The Gardens of Bellaire will be dismissed with prejudice.

I.

Plaintiff

Factual Allegationsl

alleges

that

he

was

the

common

law husband of

Lillian Hester, that in August of 2014 Hester fell, broke her hip,
and required surgery, and that in early September of 2014 Hester
was admitted for rehabilitation to an assisted living facility
owned and operated by defendant SNH SE Tenant TRS, Inc. d/b/a The
Gardens

of

Bellaire

("The

Gardens").

Plaintiff

alleges

that

Hester's surgery and pre-existing heart condition prompted her to
contact her attorney to change her estate plan,
Hester's

attorney

came

testamentary wishes,

to

The

Gardens

to

and that when

carry

out

Hester's

"no less than six (6) The Gardens personnel

swarmed into [Hester's] small room and demanded that the lawyer and
[the plaintiff] vacate the premises.,,2
Gardens

threatened

him

with

criminal

Plaintiff alleges that The
trespass

charges

if

he

returned to visit Hester, contacted the Bellaire police department
and falsely represented that Texas Adult Protective Services had
issued a protective order forbidding him from having contact with
Hester.

Plaintiff alleges that The Gardens' conduct caused him to

suffer emotional strain sufficiently severe to send him to the
emergency room in a state of nervous collapse.

Plaintiff also

alleges upon information and belief that The Gardens falsely told
third parties that he was attempting to misappropriate Hester's
funds.

IFirst Amended Complaint, Docket Entry No.4, pp. 2-4
2rd. at 3 ~ 18.
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~~

5-24.

II.

Standard of Review

A motion to dismiss pursuant to Fed. R. Civ. P. 12(b) (6) for
failure to state a claim for which relief may be granted tests the
formal

sufficiency of the pleadings and is

"appropriate when a

defendant attacks the complaint because it fails to state a legally
cognizable claim."
(5th Cir.
122

S.

2001),

Ct.

2665

Ramming v. United States,
cert.

281 F.3d 158,

denied sub nom Cloud v.

(2002).

The

court

must

161

United States,

accept

the

factual

allegations of the complaint as true, view them in a light most
favorable to the plaintiff, and draw all reasonable inferences in
the plaintiff's favor.

Id.

When a federal court reviews the sufficiency of a
complaint, before the reception of any evidence either by
affidavit or admissions, its task is necessarily a
limited one. The issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled
to offer evidence to support the claims.
Swierkiewicz v.

Sorema N.A.,

122 S. Ct.

992,

997

Scheuer v. Rhodes, 94 S. Ct. 1683, 1686 (1974)).

(2002)

(quoting

To avoid dismissal

a plaintiff must allege "enough facts to state a claim to relief
that is plausible on its face."
S. Ct.

1955,

1974

"more

than

an

accusation."

(2007).

This "plausibility standard" requires

unadorned,

the-defendant-unlawfully-harmed-me

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
III.

The

Bell Atlantic Corp. v. Twombly, 127

Gardens

argues

that

Analysis
plaintiff's

claim

for

tortious

interference with contract rights is subj ect to dismissal with
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prejudice pursuant to Federal Rule of Civil

Procedure 12 (b) (6)

because "there is no basis for Plaintiff's claim that Defendant
tortiously interfered with a

contract

considered a contract in Texas."3
529, 540

(Tex. Civ. App. -

because marriage

is

not

Citing Gowin v. Gowin, 264 S.W.

Fort Worth 1924), aff'd, 292 S.W. 211

(Tex. Comm'n App. 1927), The Gardens argues that
[a]lthough some courts have referred to marriage as a
"civil contract," Texas courts have long recognized that
the purpose of referring to marriage as a civil contract
is to negate the idea that it is "an ecclesiastical
sacrament" and, therefore, is not subject to the control
of churches or sects.4
Citing McGinley v. McGinley, 295 S.W.2d 913,

915

(Tex. Civ. App.

1956), The Gardens stresses that in Texas, "marriage is not, in and
of itself,
PaineWebber,

a contract vesting rights in the parties."s
Inc. v. Murray, 260 B.R. 815, 824

Citing

(E.D. Tex. 2001),

The Gardens argues that Federal courts also acknowledge that Texas
regards marriage as a status, not as a contract. 6
Plaintiff responds that "[d]efendant has not cited a single
authority for the proposition that a wrongdoer may interfere with
a couple's marriage relationship with impunity."7

Citing Esparza

3Defendant SNH SE Tenant TRS, Inc. d/b/a The Gardens of
Bellaire's Rule 12(b) (6) Motion to Dismiss for Failure to State a
Claim ("Defendant's Motion to Dismiss"), Docket Entry No.5, p. 3
,

6.

4Id. at 4 , 8.
SId.

7Gonzales' Response to Rule 12(b) (6) Motion to Dismiss
("Plaintiff's Response"), Docket Entry No. II, p. 7 , 25.
-4 -

v. Esparza, 382 S.W.2d 162 (Tex. Civ. App. - Corpus Christi 1964,
no writ),

for

that

court's

observation that

an element

informal marriage is an agreement of the parties,

of

an

and asserting

that he and Hester agreed to be married and considered themselves
married,

plaintiff

argues

that

his

marriage

to

Hester

"was

contract because it arose from the agreement of the parties.

a
,,8

Plaintiff argues that The Gardens wrongfully interfered with his
marital relationship with Hester by falsely telling the police that
Texas Adult Protective Services had issued an order "protecting"
Hester from him and threatening him with criminal trespass charges
if he visited Hester. 9 Plaintiff argues that The Gardens' actions
"separated a loving couple and made it impossible for [him] to have
the normal companionship of a husband with his wife,

including

keeping her company and comforting her as her health declined.

,,10

Texas courts recognize a claim for tortious interference with
contract

rights.

A party alleging

tortious

interference with

contract rights under Texas law must plead and prove four elements:
(1) that a contract subj ect to interference exists;
(2) that the alleged act of interference was willful and
intentional; (3) that the willful and intentional act
proximately caused damage; and (4) that actual damage or
loss occurred.

8Id.

~

24.

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ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997)
(citing Juliette Fowler Homes v. Welch Associates, 793 S.W.2d 660,
665

(Tex. 1990)).

this

cause

of

"[I]f a plaintiff establishes the elements of
action,

a

defendant

may

still

prevail

establishing the affirmative defense of justification."

upon

Texas Beef

Cattle Co. v. Green, 921 S.W.2d 203, 210 (Tex. 1996).
Plaintiff's attempt to base such a claim on the existence of
a marriage has no merit, however, because a marriage contract is
not a contract subject to interference under Texas law.
292 S.W.

at 214-15

(absent prayer for divorce,

cause of

action against

one

another

for

contract); Hogue v. Hogue, 242 S.W.2d 673,
Dallas 1951, no writ)

spouses have no

breach of
676

See Gowin,

a

marriage

(Tex. Civ. App. -

(a marriage contract contemplates existence

of an agreement to be married so long as the parties live,
unlike

an

ordinary

contract,

cannot

be

dissolved

by

that

mutual

consent); Hopkins v. Hopkins, 540 S.W.2d 783, 786 (Tex. Civ. App.
- Corpus Christi 1976, no writ)

("Texas does not regard the marital

relationship as a contract vesting rights in the parties so as to
preclude the retroactive application of amendments to the laws
which govern that relationship.").
The

Texas

Supreme

Court

has

long

recognized

the

marital

relationship as "the primary familial interest recognized by the
courts."

Whittlesey v. Miller, 572 S.W.2d 665,

666

(Tex. 1978).

The Court has also recognized that "[t]he remedy for the negligent

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or intentional impairment of this relationship is a tort action for
loss of consortium."

Id.

In Whittlesey the Texas Supreme Court

observed that
[c] onsortium has been the subj ect of many different
definitions by the courts, but it can generally be
defined to include the mutual right of the husband and
wife to that affection, solace, comfort, companionship,
society, assistance, and sexual relations necessary to a
successful marriage.
Id.

The Court explained that
[t] he phrase "loss of consortium" is more accurately
described as an element of damage rather than a cause of
action. But courts have so frequently used the phrase to
denote those actions in which loss of consortium is the
major element of damage that "loss of consortium" has
come to be referred to as a cause of action.

Id. at n.1.
damages

Texas courts do not recognize a right of recovery for

arising

from

interferences with

familial

relationships

between a husband and wife that do not rise to the level of loss of
See Transportation Insurance Company v. Archer,

consortium.
S.W.2d 403
a

wife

In Archer

(Tex. App. - Fort Worth 1992, writ denied)

sued

her

husband's

familial interference.

workers'

compensation

832

insurer

for

Reasoning that interference with the family

relationship may occur without substantially impairing the elements
constituting

loss

of

consortium,

the

court

held

that

conduct

causing loss of consortium constitutes familial interference but
that

interference

consortium.

alone

Id. at 405.

is

not

the

equivalent

of

loss

of

See Helena Laboratories Corp. v. Snyder,

886 S.W.2d 767, 768 (Tex. 1994)

(no cause of action for negligent

-7-

interference

with

S. W. 2d

793

786,

(recognizing

family
(Tex.

intentional

relationship);

App.

Fort

Stites

Worth

v.

1994,

Gillum,
writ

872

denied)

infliction of emotional distress as a

cause of action that might be available to a spouse seeking damages
from a third party) .
Plaintiff in the present case bases his claim for tortious
interference with contract rights on allegations that The Gardens'
actions deprived him of Hester's companionship.

In Whittlesey the

Court recognized that claims for loss of consortium are derivative
claims that do not lie absent an underlying personal injury claim
belonging to the other spouse.

Thus, in order to recover damages

for loss of consortium a spouse asserting a derivative claim for
loss of consortium must first prove that the defendant is also
liable to the injured other spouse for personal injuries causing
loss of consortium.
(Tex. 2013)

See Strickland v. Medlen, 397 S.W.3d 184, 195

(describing "[l]oss of companionship [a]s a component

of loss of consortium -

a

form of personal-injury damage,

not

property damage - and something we have 'narrowly cabined' to two
building-block
child").

human

relationships:

husband-wife

and

parent-

Plaintiff's claim for breach of contract rights arising

from a contract of marriage appears to be an artful attempt to
assert a claim for loss of consortium without having to allege or
prove that The Gardens is liable for a physical injury to Hester.
Accordingly, Defendant SNH SE Tenant TRS, Inc. d/b/a The Gardens of
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Gardens of Bellaire's Rule 12(b) (6) Motion to Dismiss for Failure
to State a Claim (Docket Entry No.5)

is GRANTED.

SIGNED at Houston, Texas, on this the 9th day of March, 2015.

/'
SIM LAKE
UNITED STATES DISTRICT JUDGE

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