iied claim in Texas

2026See Hoffman-La Roche, Inc., 144 S.W.3d at 447 ; McShirley v. Lucas, No. 02-23-00229-CV, 2024 WL 976512 , at *13 (Tex. App.— Fort Worth Mar. 7, 2024, pet. denied) (mem. op.); Lyden, 2023 WL 6631528 , at *3; see also Doe v. Cruz, 683 S.W.3d 475 , 500 (Tex. App.—San Antonio 2023, no pet.) (op. on reh’g) (holding that plaintiff had failed to satisfy his burden under the Texas Citizens 11 Participation Act to “present evidence of a prima facie case on each essential element of his IIED claim” because “the factual basis of [his] IIED claim [was] the same as his alternative claims”); Patel v. Patel,

2025See Hoffmann–La Roche, 144 S.W.3d at 445 ; see also Light v. Vistra Energy, No. 10-18-00330-CV, 2021 WL 4777098 , at *3 (Tex. App.—Waco Oct. 13, 2021, no pet.) (mem. op) (affirming Rule 91a dismissal of IIED claim and noting that plaintiff “did not allege a legal or factual basis for extreme and outrageous conduct in the employment-termination decision”); Salazar v. HEB Grocery Co., LP, No. 04- 16-00734-CV, 2018 WL 1610942 , at *4–5 (Tex. App.—San Antonio Apr. 4, 2018, pet. denied) (mem. op.) (same where plaintiff’s pleadings did not allege facts showing that defendant’s conduct was extreme an

2026However, even if we were to assume that the Perrys presented more than a scintilla of evidence to show that the board members engaged in all of these alleged acts, the board members would nevertheless be entitled to summary judgment on the Perry’s IIED claim because the alleged acts do not meet the rigorous, exacting standard of 14 extreme or outrageous conduct.9 See Creditwatch, 157 S.W.3d at 818 (indicating that IIED claims must typically be based on circumstances that border on “serious criminal acts”).

2025See Creditwatch, 157 S.W.3d at 816; Bill Wyly Dev., Inc. v. Smith, 680 S.W.3d 679 , 689–90 (Tex. App.—Houston [14th Dist.] 2023, no pet.) (concluding that plaintiff’s IIED claim was unavailable because it was based on same facts supporting other available claims providing legal remedies: trespass and malicious prosecution, and trial court thus erred in denying appellant’s motion for directed verdict on IIED claim); Mann v. Robles, No. 09-19-00368-CV, 2021 WL 6138971 , at *6 (Tex. App.—Beaumont Dec. 30, 2021, no pet.) (mem. op.) (concluding that because remedies through claims for trespass and

2026Thus, “[w]here the gravamen of a plaintiff’s complaint is really another tort, [IIED] should not be available.” Id. (citing numerous cases); see Martinez v. English, 267 S.W.3d 521 , 530–31 (Tex. App.—Austin 2008, pet. denied) (holding that plaintiff could not maintain IIED claim because its gravamen was the same as his malicious-prosecution claim).

2025Id. (holding that because Texas Commission on Human Rights Act provided remedy 17 for same emotional damages caused by same discriminatory actions as those supporting IIED claim, “there is no remedial gap” and “thus no support” for jury’s award of IIED damages).

2026Lyden v. Aldridge, No. 02-23-00227-CV, 2023 WL 6631528 , at *6 (Tex. App.—Fort Worth Oct. 12, 2023, no pet.) (mem. op.); see Hersh v. Tatum, 526 S.W.3d 462, 468 (Tex. 2017); Hoffman-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004).

2025Intentional Infliction of Emotional Distress An IIED claim has four elements: “(1) the defendant acted intentionally or recklessly; (2) its conduct was extreme and outrageous; (3) its actions caused the plaintiff emotional distress; and (4) the emotional distress was severe.” Hersh v. Tatum, 526 S.W.3d 462, 468 (Tex. 2017).

2018See Brewerton v. Dalrymple, 997 S.W.2d 212, 217 (Tex. 1999) (explaining that a wife’s loss of consortium claim was “wholly derivative of her husband’s intentional infliction claim” and because the IIED claim failed, the derivative loss of consortium claim also failed); see also In re Labatt Food Serv., L.P., 279 S.W.3d 640, 646 (Tex. 2009) (discussing loss of consortium as a derivative claim).

2018See Brewerton v. Dalrymple, 997 S.W.2d 212, 217 (Tex. 1999) (explaining that a wife’s loss of consortium claim was “wholly derivative of her husband’s intentional infliction claim” and because the IIED claim failed, the derivative loss of consortium claim also failed); see also In re Labatt Food Serv., L.P., 279 S.W.3d 640, 646 (Tex. 2009) (discussing loss of consortium as a derivative claim).

2015Consequently, Williams did not provide a “minimum quantum of evidence 52 GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999); see also Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 65 (Tex. 1998). 53 Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004) (citation omitted). 54 Id. 32 necessary” to support his IIED claim.

2010Prof’l Conduct 1.04 cmt. 19 (“If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by a bar association, the lawyer should conscientiously consider submitting to it.”). 55: See, e.g. , Household Credit Servs., Inc. v. Driscol , 989 S.W.2d 72, 78 , 81–82 (Tex. App.—El Paso 1998, pet. denied) (holding that the acts of a credit card company’s agent in attempting to collect on an account gave rise to an IIED claim when the agent made repeated calls to the debtor’s place of employment after being asked to stop, once making twe

2010Prof’l Conduct 1.04 cmt. 19 (“If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by a bar association, the lawyer should conscientiously consider submitting to it.”). 55: See, e.g. , Household Credit Servs., Inc. v. Driscol , 989 S.W.2d 72, 78 , 81–82 (Tex. App.—El Paso 1998, pet. denied) (holding that the acts of a credit card company’s agent in attempting to collect on an account gave rise to an IIED claim when the agent made repeated calls to the debtor’s place of employment after being asked to stop, once making twe

2010Prof’l Conduct 1.04 cmt. 19 (“If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by a bar association, the lawyer should conscientiously consider submitting to it.”). 55: See, e.g. , Household Credit Servs., Inc. v. Driscol , 989 S.W.2d 72, 78 , 81–82 (Tex. App.—El Paso 1998, pet. denied) (holding that the acts of a credit card company’s agent in attempting to collect on an account gave rise to an IIED claim when the agent made repeated calls to the debtor’s place of employment after being asked to stop, once making twe

2017Twyman v. Twyman, 855 S.W.2d 619, 622-26 (Tex. 1993) (holding that wife could bring IIED claim against her husband and could do so within divorce proceeding subject to limitations preventing double recovery); cf. Pat.

2017Mental-anguish damages also are generally available for intentional infliction of emotional distress—a “gap-filler” tort that was “created for the limited purpose of allowing recovery in those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress.” Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004); see also Twyman, 855 S.W.2d at 622-26 (permitting IIED claim by wife in divorce proceeding).

2026See Bradford v. Vento, 48 S.W.3d 749, 758 (Tex. 2001) (“Whether a defendant’s conduct is ‘extreme and outrageous’ is a question of law.” (citing Brewerton v. Dalrymple, 997 S.W.2d 212, 216 (Tex. 1999))); see also Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003) (explaining that “[i]t is for the court to determine, in the first instance, whether a defendant’s conduct was extreme and outrageous” and that the issue should be submitted to the jury only “when reasonable minds may differ”).

2026See Bradford v. Vento, 48 S.W.3d 749, 758 (Tex. 2001) (“Whether a defendant’s conduct is ‘extreme and outrageous’ is a question of law.” (citing Brewerton v. Dalrymple, 997 S.W.2d 212, 216 (Tex. 1999))); see also Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003) (explaining that “[i]t is for the court to determine, in the first instance, whether a defendant’s conduct was extreme and outrageous” and that the issue should be submitted to the jury only “when reasonable minds may differ”).

2025See Morgan v. Anthony, 27 S.W.3d 928 , 930–31 (Tex. 2000) (holding there was sufficient evidence of extreme and outrageous conduct where a man—who stopped to assist a female motorist having car trouble on a rural highway—repeatedly harassed her with sexual advances, followed her, and blocked her escape); Bruce, 998 S.W.2d at 613–14 (holding there was sufficient evidence of extreme and 8 outrageous conduct when, over a period of more than two years, a supervisor used harsh language and sexual innuendo; physically threatened employees; charged and screamed at them; and stared at them for as long

2025See Morgan v. Anthony, 27 S.W.3d 928 , 930–31 (Tex. 2000) (holding there was sufficient evidence of extreme and outrageous conduct where a man—who stopped to assist a female motorist having car trouble on a rural highway—repeatedly harassed her with sexual advances, followed her, and blocked her escape); Bruce, 998 S.W.2d at 613–14 (holding there was sufficient evidence of extreme and 8 outrageous conduct when, over a period of more than two years, a supervisor used harsh language and sexual innuendo; physically threatened employees; charged and screamed at them; and stared at them for as long

2026Thus, “[w]here the gravamen of a plaintiff’s complaint is really another tort, [IIED] should not be available.” Id. (citing numerous cases); see Martinez v. English, 267 S.W.3d 521 , 530–31 (Tex. App.—Austin 2008, pet. denied) (holding that plaintiff could not maintain IIED claim because its gravamen was the same as his malicious-prosecution claim).

2023Thus, “[w]here the gravamen of a plaintiff’s complaint is really another tort, intentional infliction of emotional distress should not be available.” Id. (citing numerous cases); see Martinez, 267 S.W.3d at 530– 31 (holding that plaintiff could not maintain IIED claim because its gravamen was the same as his malicious-prosecution claim).

2025See Doe v. Cruz, 683 S.W.3d 475 , 500 (Tex. App.—San Antonio 2023, no pet.) (holding that because plaintiff did not allege any factual basis for IIED claim other than same factual bases that he asserted to support claims for revenge porn, defamation, and tortious interference with contract, IIED claim was legally unavailable); Patel v. Hussain, 485 S.W.3d 153, 177 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (determining that gravamen of plaintiff’s complaint “was fully encompassed by her invasion of privacy claims” and that because she had not identified evidence independently supporting II

2016Cf. Oliphint v. Richards, 167 S.W.3d 513, 517 (Tex.App.—Houston [14th Dist.] 2005, pet. clenied) (affirming summary judgment on IIED because the IIED claim was not based on facts independent of a defamation claim).

2023James, DDS, 553 S.W.3d at 610 (holding plaintiff did not meet TCPA burden regarding IIED claim because alleged conduct underlying IIED claim “d[id] not exceed conduct covered by other torts”).

2023James, DDS, 553 S.W.3d at 610 (holding plaintiff did not meet TCPA burden regarding IIED claim because alleged conduct underlying IIED claim “d[id] not exceed conduct covered by other torts”).

2023Ent., Inc. v. Jones, 538 S.W.3d 781, 789 (Tex. App.—Austin 2017), aff’d, 611 S.W.3d 1 (Tex. 2020) (holding that plaintiff’s IIED claim could not proceed under the TCPA because it was based on the plaintiff’s defamation claim). 27 B.

2023Entm’t, Inc. v. Jones, 538 S.W.3d 781, 814 (Tex. App.—Austin 2017), aff’d, 611 S.W.3d 1 (Tex. 2020) (“[T]he plaintiff cannot pursue its intentional-infliction claim regardless of the success or failure of its alternative claim.”). - 28 - 04-21-00582-CV Cruz did not allege in his petition or TCPA response any basis for his IIED claim other than those asserted for his “revenge porn,” defamation, and tortious interference with contract claims.

2019See Serafine v. Blunt, 466 S.W.3d 352, 357 (Tex. App—Austin 2015, no pet.) (“A prima facie standard generally ‘requires only the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.’”). 8 CONCLUSION Having concluded that Lewis established by clear and specific evidence a prima facie case for the sole disputed element of her IIED claim, we affirm the district court’s denial of Appellants’ motion to dismiss. __________________________________________ Gisela D.

2017While it is conceivable that some of these additional “communications” might independently qualify as the “exercise of the right of free speech” through a different prong of the Act’s generous “matter of public concern” definition,78 or as the “exercise of” one of the other two categories of TCPA-protected activity,79 appellants did not preserve any such alternative ground for dismissing this portion of the IIED claim.80 Similarly, the Abbotts’ claims for invasion of privacy, conversion, and (in additional part) IIED are founded factually on alleged physical intrusions upon personal or propert

2017App.—Houston [14th Dist.] 1969, writ ref'd n.r.e.) (permitting mother of deceased son to recover mental-anguish damages on her breach-of-contract claim against entity that improperly prepared son’s body for burial); Wornick Co. v. Casas, 856 S.W.2d 732, 734-35 (Tex. 1993) (setting forth elements of IIED claim and holding that defendant’s conduct was not outrageous as matter of law because defendant may assert its legal rights in permissible way, even if assertion causes mental anguish).

2010Prof’l Conduct 1.04 cmt. 19 (“If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by a bar association, the lawyer should conscientiously consider submitting to it.”). 55: See, e.g. , Household Credit Servs., Inc. v. Driscol , 989 S.W.2d 72, 78 , 81–82 (Tex. App.—El Paso 1998, pet. denied) (holding that the acts of a credit card company’s agent in attempting to collect on an account gave rise to an IIED claim when the agent made repeated calls to the debtor’s place of employment after being asked to stop, once making twe

2012Id. at 741–42 (citations omitted); see also Johnson, 891 S.W.2d at 644 (rejecting an IIED claim because an employer acted within its legal rights in investigating reasonably credible allegations of an employee‘s misconduct); Williams v. First Tenn. Nat’l Corp., 97 S.W.3d 798, 805 (Tex. App.—Dallas 2003, no pet.) (deciding that an employer‘s questioning of an employee about personal use of a company credit card in front of other employees was not extreme and outrageous 39 conduct); Sebesta v. Kent Elecs.

2012Id. at 741–42 (citations omitted); see also Johnson, 891 S.W.2d at 644 (rejecting an IIED claim because an employer acted within its legal rights in investigating reasonably credible allegations of an employee‘s misconduct); Williams v. First Tenn. Nat’l Corp., 97 S.W.3d 798, 805 (Tex. App.—Dallas 2003, no pet.) (deciding that an employer‘s questioning of an employee about personal use of a company credit card in front of other employees was not extreme and outrageous 39 conduct); Sebesta v. Kent Elecs.

2012See Morgan v. Anthony, 27 S.W.3d 928 , 929– 42 30 (Tex. 2000); Bruce, 998 S.W.2d at 613 (holding that there was evidence of extreme and outrageous conduct when over a period of more than two years, a supervisor used harsh language and sexual innuendo, physically threatened employees and charged at them, screamed, and stared at them for as long as thirty minutes at a time); see also Haynes & Boone, L.L.P. v. Chason, 81 S.W.3d 307 , 311–14 (Tex. App.—Tyler 2001, pet. denied) (comparing cases in which courts recognized the existence of extreme and outrageous conduct with cases in which courts ref

2012See Morgan v. Anthony, 27 S.W.3d 928 , 929– 42 30 (Tex. 2000); Bruce, 998 S.W.2d at 613 (holding that there was evidence of extreme and outrageous conduct when over a period of more than two years, a supervisor used harsh language and sexual innuendo, physically threatened employees and charged at them, screamed, and stared at them for as long as thirty minutes at a time); see also Haynes & Boone, L.L.P. v. Chason, 81 S.W.3d 307 , 311–14 (Tex. App.—Tyler 2001, pet. denied) (comparing cases in which courts recognized the existence of extreme and outrageous conduct with cases in which courts ref

2012See Morgan v. Anthony, 27 S.W.3d 928 , 929– 42 30 (Tex. 2000); Bruce, 998 S.W.2d at 613 (holding that there was evidence of extreme and outrageous conduct when over a period of more than two years, a supervisor used harsh language and sexual innuendo, physically threatened employees and charged at them, screamed, and stared at them for as long as thirty minutes at a time); see also Haynes & Boone, L.L.P. v. Chason, 81 S.W.3d 307 , 311–14 (Tex. App.—Tyler 2001, pet. denied) (comparing cases in which courts recognized the existence of extreme and outrageous conduct with cases in which courts ref

2012See Morgan v. Anthony, 27 S.W.3d 928 , 929– 42 30 (Tex. 2000); Bruce, 998 S.W.2d at 613 (holding that there was evidence of extreme and outrageous conduct when over a period of more than two years, a supervisor used harsh language and sexual innuendo, physically threatened employees and charged at them, screamed, and stared at them for as long as thirty minutes at a time); see also Haynes & Boone, L.L.P. v. Chason, 81 S.W.3d 307 , 311–14 (Tex. App.—Tyler 2001, pet. denied) (comparing cases in which courts recognized the existence of extreme and outrageous conduct with cases in which courts ref

2012See Motor Express, Inc., 925 S.W.2d at 640 (holding that wife‘s claims were not recoverable as a matter of law); see also Brewerton, 997 S.W.2d at 217 (holding that wife‘s loss of consortium claim failed because it was wholly derivative of her husband‘s IIED claim, which the court held failed as a matter of law).

2012See Motor Express, Inc. , 925 S.W.2d at 640 (holding that wife’s claims were not recoverable as a matter of law); see also Brewerton , 997 S.W.2d at 217 (holding that wife’s loss of consortium claim failed because it was wholly derivative of her husband’s IIED claim, which the court held failed as a matter of law).

2012Id. at 741–42 (citations omitted); see also Johnson, 891 S.W.2d at 644 (rejecting an IIED claim because an employer acted within its legal rights in investigating reasonably credible allegations of an employee‘s misconduct); Williams v. First Tenn. Nat’l Corp., 97 S.W.3d 798, 805 (Tex. App.—Dallas 2003, no pet.) (deciding that an employer‘s questioning of an employee about personal use of a company credit card in front of other employees was not extreme and outrageous 39 conduct); Sebesta v. Kent Elecs.

2012Id. at 741–42 (citations omitted); see also Johnson, 891 S.W.2d at 644 (rejecting an IIED claim because an employer acted within its legal rights in investigating reasonably credible allegations of an employee‘s misconduct); Williams v. First Tenn. Nat’l Corp., 97 S.W.3d 798, 805 (Tex. App.—Dallas 2003, no pet.) (deciding that an employer‘s questioning of an employee about personal use of a company credit card in front of other employees was not extreme and outrageous 39 conduct); Sebesta v. Kent Elecs.

2010Prof’l Conduct 1.04 cmt. 19 (“If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by a bar association, the lawyer should conscientiously consider submitting to it.”). 55: See, e.g. , Household Credit Servs., Inc. v. Driscol , 989 S.W.2d 72, 78 , 81–82 (Tex. App.—El Paso 1998, pet. denied) (holding that the acts of a credit card company’s agent in attempting to collect on an account gave rise to an IIED claim when the agent made repeated calls to the debtor’s place of employment after being asked to stop, once making twe

2010Prof’l Conduct 1.04 cmt. 19 (“If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by a bar association, the lawyer should conscientiously consider submitting to it.”). 55: See, e.g. , Household Credit Servs., Inc. v. Driscol , 989 S.W.2d 72, 78 , 81–82 (Tex. App.—El Paso 1998, pet. denied) (holding that the acts of a credit card company’s agent in attempting to collect on an account gave rise to an IIED claim when the agent made repeated calls to the debtor’s place of employment after being asked to stop, once making twe

2010Prof’l Conduct 1.04 cmt. 19 (“If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by a bar association, the lawyer should conscientiously consider submitting to it.”). 55: See, e.g. , Household Credit Servs., Inc. v. Driscol , 989 S.W.2d 72, 78 , 81–82 (Tex. App.—El Paso 1998, pet. denied) (holding that the acts of a credit card company’s agent in attempting to collect on an account gave rise to an IIED claim when the agent made repeated calls to the debtor’s place of employment after being asked to stop, once making twe

2010Prof’l Conduct 1.04 cmt. 19 (“If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by a bar association, the lawyer should conscientiously consider submitting to it.”). 55: See, e.g. , Household Credit Servs., Inc. v. Driscol , 989 S.W.2d 72, 78 , 81–82 (Tex. App.—El Paso 1998, pet. denied) (holding that the acts of a credit card company’s agent in attempting to collect on an account gave rise to an IIED claim when the agent made repeated calls to the debtor’s place of employment after being asked to stop, once making twe

2010Prof’l Conduct 1.04 cmt. 19 (“If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by a bar association, the lawyer should conscientiously consider submitting to it.”). 55: See, e.g. , Household Credit Servs., Inc. v. Driscol , 989 S.W.2d 72, 78 , 81–82 (Tex. App.—El Paso 1998, pet. denied) (holding that the acts of a credit card company’s agent in attempting to collect on an account gave rise to an IIED claim when the agent made repeated calls to the debtor’s place of employment after being asked to stop, once making twe

2010Prof’l Conduct 1.04 cmt. 19 (“If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by a bar association, the lawyer should conscientiously consider submitting to it.”). 55: See, e.g. , Household Credit Servs., Inc. v. Driscol , 989 S.W.2d 72, 78 , 81–82 (Tex. App.—El Paso 1998, pet. denied) (holding that the acts of a credit card company’s agent in attempting to collect on an account gave rise to an IIED claim when the agent made repeated calls to the debtor’s place of employment after being asked to stop, once making twe

2010Prof’l Conduct 1.04 cmt. 19 (“If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by a bar association, the lawyer should conscientiously consider submitting to it.”). 55: See, e.g. , Household Credit Servs., Inc. v. Driscol , 989 S.W.2d 72, 78 , 81–82 (Tex. App.—El Paso 1998, pet. denied) (holding that the acts of a credit card company’s agent in attempting to collect on an account gave rise to an IIED claim when the agent made repeated calls to the debtor’s place of employment after being asked to stop, once making twe

2010Prof’l Conduct 1.04 cmt. 19 (“If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by a bar association, the lawyer should conscientiously consider submitting to it.”). 55: See, e.g. , Household Credit Servs., Inc. v. Driscol , 989 S.W.2d 72, 78 , 81–82 (Tex. App.—El Paso 1998, pet. denied) (holding that the acts of a credit card company’s agent in attempting to collect on an account gave rise to an IIED claim when the agent made repeated calls to the debtor’s place of employment after being asked to stop, once making twe

2026See Stewart v. Lexicon Genetics, Inc., 279 S.W.3d 364, 372 (Tex. App.—Beaumont 2009, pet. denied) (affirming district court’s grant of summary judgment on IIED claim because “[n]one of the alleged 12 extreme and outrageous conduct [was] independent of the conduct that form[ed] the basis of the other torts asserted in the petition”).

2026See Stewart v. Lexicon Genetics, Inc., 279 S.W.3d 364, 372 (Tex. App.—Beaumont 2009, pet. denied) (affirming district court’s grant of summary judgment on IIED claim because “[n]one of the alleged 12 extreme and outrageous conduct [was] independent of the conduct that form[ed] the basis of the other torts asserted in the petition”).

2026Second, they contend that the summary judgment on the Perrys’ negligence and gross-negligence claims should be reversed because the board members failed to show that these claims were actually be affirmed only on grounds presented in the motion.” (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 676 (Tex. 1979))). 7 based on intentional—as opposed to negligent—conduct and because the Perrys presented sufficient summary-judgment evidence to create a fact issue as to their negligence claim’s proximate-cause element and their gross-negligence claim’s elements.