concurring and dissenting.
This Court has never decided whether a tort of false light invasion of privacy or of intentional infliction of emotional distress does or does not exist in Texas. We should not do so in this case, in which record and argument inadequately address the issues. The existence of both torts was simply assumed in the lower courts and was neither challenged nor defended until the parties arrived here. A new cause of action should neither be bom of such simple acquiescence nor disowned by such belated protest. The strong arguments for and against both torts, produced by the several legal commentators and authorities in other jurisdictions cited in the opinions of Justice Gonzalez and Justice Doggett, are best resolved when, but not until, they are fully and fairly presented in a case before us.
A sensible reluctance to decide important issues not properly presented in this case makes an adjudication of the rights of the parties difficult. I believe Chief Justice Phillips’ opinion takes the best approach by assuming that if the torts of false light invasion of privacy and intentional infliction of emotional distress were recognized in Texas, the elements of each would be those established by the weight of authori*213ty in jurisdictions which already recognize the torts. Thus, recovery for false light invasion of privacy would require a showing that defendant acted with actual malice in these circumstances (i.e., when there is a qualified privilege), and recovery for intentional infliction of emotional distress would require a showing that defendant’s conduct was outrageous. Because Mendez produced no evidence of outrageous conduct, and requested no finding of actual malice, I agree that the trial court’s judgment in his favor cannot stand. I agree with Chief Justice Phillips’ opinion that judgment must be rendered against Mendez on his emotional distress claim.
I disagree, however, that Mendez’ false light claim should be remanded for new trial. It is one thing to decide what the elements of a cause of action should be if it is to be allowed; it is quite another to remand the parties for a trial on such a hypothetical cause of action. The Court leaves the parties to try their case over again without any assurance that the tort asserted even exists. While Mendez was free to assert a cause of action this Court had not recognized when he filed suit, he was obliged to prove the elements required by the weight of authority which did recognize the action. Granted, not every authority requires a showing of actual malice for recovery on a false light tort, but every Texas appellate court which has considered the issue does. See Covington v. Houston Post, 743 S.W.2d 345 (Tex.App.—Houston [14th Dist.] 1987, no writ); Gill v. Snow, 644 S.W.2d 222, 224 (Tex.App.—Fort Worth 1982, no writ); but see Wood v. Hustler Magazine, Inc., 736 F.2d 1084, 1092 (5th Cir.1984). Mendez could have asked the trial court to submit a question on actual malice to the jury separately, so as not to preclude judgment in his favor if the element were not found but also not required. He chose not to do so. I would not remand for a new trial under these circumstances. It is not necessary, and it is not in the interest of justice.
Only this year, in an effort to set standards for remands in the interest of justice, the Court stated, in an opinion also by Chief Justice Phillips:
We have located no other case where this Court ordered a remand to allow the losing party to pursue a legal theory not recognized under Texas law. Indeed, such a remand would not be in the interest of justice, as it would subject the prevailing party to a second trial on an uncertain legal theory.
Westgate, Ltd. v. State, 843 S.W.2d 448 (Tex.1992). By this standard, the remand in this case is not in the interest of justice. Although the circumstances in Westgate were different, the standard it enunciated was intended to govern other cases, like this one. The Court’s unwillingness to adhere to its own writing as long as a few months is also not in the interest of justice. I would render judgment for Diamond Shamrock. I therefore dissent.