ROBERT C. LIVINGSTON, Appellant
CATHERINE LIVINGSTON, Appellee
Appeal from the 80th District Court Harris County, Texas
Trial Court Case No. 2015-34856
consists of Justices Jennings, Higley, and Massengale.
CARTER HIGLEY JUSTICE
suit arises from the acrimonious relationship between
Catherine Livingston and her step-son, Robert Livingston.
Catherine sued Robert for assault, false imprisonment, and
infliction of emotional distress. A jury found that Robert
had not assaulted or falsely imprisoned Catherine, but it did
find that Robert had intentionally inflicted severe emotional
distress on Catherine and that Robert had acted with malice.
Catherine recovered no actual damages; however, the trial
court rendered a permanent injunction against Robert,
enjoining him from approaching Catherine within 1, 000 feet,
from knowingly entering any property where Catherine was
present, and from contacting her.
appeals the permanent injunction. In four issues, he contends
that the pleadings, the jury's findings, and the evidence
do not support the permanent injunction, and he asserts that
the injunction does not comply with Rule of Civil Procedure
683. Because Robert has not shown that the trial court abused
its discretion in rendering the injunctive relief, and
because Rule 683 does not apply to the permanent injunction,
2015, eighty-year-old Stuart Livingston resided in an
assisted living facility. He had been diagnosed with dementia
and could no longer care for himself. His wife of 29 years,
76-year-old Catherine, also could not care for him, but
Catherine visited Stuart at the assisted living facility.
had three adult sons from his first marriage: Stuart, Jr.,
Phillip, and Robert. Years before, Stuart had signed a
medical power of attorney, giving Phillip the authority to
make health care decisions for him. Stuart had given Robert
secondary power of attorney.
and Phillip agreed that Robert would take over the duty of
making Stuart's health care decisions. Robert would later
testify that, because he had concerns about Catherine
interfering in Stuart's healthcare, he went to speak to
his father about her interference on June 13, 2015. When
Robert arrived at the assisted living facility that day,
Catherine was there visiting Stuart.
at this point that Robert's and Catherine's stories
diverge regarding what happened that day.
to Robert, when he entered his father's room, Stuart was
lying on the bed, and Catherine was sitting in a chair.
Robert told Stuart that Catherine's actions at the
assisted living facility needed to change. Robert claimed
that Catherine then grabbed her mobile phone, got up, walked
over to Stuart, and began "yelling and screaming and
waving her hand." She then laid on top of Stuart. While
lying down, Catherine called 9-1-1 on her mobile phone.
Catherine then got up from the bed and showed the phone to
Robert. The phone's screen indicated that Catherine had
called the Houston Police Department. Catherine asked him,
"Are you scared now?" Robert would later testify
that Catherine then "ran from the room yelling and
told a different version of the events. In her trial
testimony, she claimed that Robert "stormed into
[Stuart's] room." He waved a key, stating, "I
have dad's key, ha ha ha." According to Catherine,
Robert was "shouting at the top of his voice, he was red
in the face and waving his arms." Robert used "a
lot of cuss words, and said things are going to change around
claimed that, when she tried to leave the room, Robert
blocked the door. Catherine later testified, "When I got
very close to the door he shoved me against the wall or the
door frame and I lost my balance, my balance wasn't very
good, and [I] fell to the floor." Catherine claimed that
Robert then stood over her and continued to yell at her.
said that she then left the room and asked someone to call
9-1-1. The police did not come to the assisted living
facility, but Catherine contacted the authorities later that
day. Although the police investigated the matter, no criminal
charges were filed against Robert.
days later, Catherine sued Robert for assault and false
imprisonment based on the June 13 incident at the assisted
living facility. Catherine sought actual and exemplary
damages from Robert. She also requested a preliminary and
permanent injunction against Robert, requesting, inter alia,
that he be enjoined from approaching her within 1, 000 feet
and from knowingly entering property where she was present.
Soon thereafter, Catherine filed an application for temporary
injunction, reiterating her request for injunctive relief.
later filed a supplement to her application for temporary
injunction. In the application, Catherine alleged that, on
August 24, 2015, Robert had called her on her mobile phone
and made the following threat: "I'm going to hurt
you. I am going to f***ing kill you. I'm going to kill
you and your mother***k** son." Based on these
additional allegations, Catherine reiterated her request for
both temporary and permanent injunctive relief.
case was tried to a jury in November 2015. The record
reflects that Stuart died the second day of trial.
and Robert each testified at trial, giving his and her
version of what had occurred in Stuart's room on June 13,
2015. Catherine asserted that Robert had shoved her to the
floor, and Robert vehemently denied that he had done so.
also testified about the phone call that she received from
Robert on August 24, 2015. She testified that, on that date,
she was in a rehabilitation facility recovering from hip
replacement surgery. Catherine stated that, when she answered
her mobile phone, Robert began yelling and swearing at her.
She said that Robert was "furious" and that he was
"very, very angry." According to Catherine, Robert
sounded "out of control." Catherine testified that
Robert called her a "mother***er" and threatened
her, expressly telling her that "he had had it, and he
was going to hurt me, and he was going to kill me."
Catherine further testified that Robert had threatened to
kill her "motherf***ing son." She stated that
Robert had learned that her son had been visiting Stuart, and
Robert was unhappy about that.
also testified that Ida Glover, a personal care attendant,
was with her in her room when Robert called. She stated that
Glover had taken the phone when she saw how upset Catherine
was by the call. After Glover took the phone, Catherine said
that Robert continued to yell, but then he hung up when he
heard Glover's voice.
also testified at trial. She stated that she was sitting next
to Catherine when a man, who Catherine later said was her
step-son, called on Catherine's mobile phone. Glover
stated that Catherine immediately became upset when she
answered the call. Glover could hear that the caller was
yelling. Seeing how upset the call made Catherine, Glover
took the phone. When she put it to her ear, she heard the man
say, "Keep your mother***ing son away from my god**mn
father." Glover stated that she then ended the call.
did not testify regarding the August 2015 phone
call. Nor did he offer any evidence to
contradict Catherine's or Glover's testimony
regarding the call.
jury was asked to determine Robert's liability on three
causes of action: assault, false imprisonment, and
intentional infliction of emotional distress. The jury found
that Robert had not assaulted or falsely imprisoned
Catherine; but the jury did find that Robert had
intentionally inflicted severe emotional distress on
Catherine. Nonetheless, the jury found that Catherine had
suffered zero dollars in actual damages. The jury, however,
answered "yes" to the following question: "Do
you find by clear and convincing evidence that the harm to
Catherine Livingston resulted from malice?" Based on
that finding, the jury determined that Catherine was entitled
to $2, 500 in exemplary damages.
Robert filed a motion to disregard the jury's verdict and
to enter judgment. He requested the trial court to render a
take-nothing judgment against Catherine based on the
jury's negative findings on Catherine's assault and
false imprisonment claims and based on its zero-damages
requested the trial court to disregard the jury's
affirmative finding with regard to Catherine's
intentional infliction of emotional distress claim. He
pointed out that intentional infliction of emotional distress
is a gap-filler tort that applies only to a claim for which a
plaintiff has no other cause of action. Robert averred that
Catherine was pursuing recovery based only on the alleged
June 2015 incident in Stuart's room. Robert asserted
that, because she had redress through the torts of assault
and false imprisonment for that incident, Catherine was not
entitled to recover by way of the gap-filler tort,
intentional infliction of emotional distress. Robert claimed
that, based on the jury's finding of no actual damages, a
take-nothing judgment should be rendered in his favor. Robert
further asserted that Catherine was not entitled to a
permanent injunction because she had not shown that she was
at risk of imminent harm from Robert.
also filed a motion to enter judgment. She asserted that she
was entitled to the $2, 500 in exemplary damages found by the
jury, even though the jury had also found that she had
suffered zero dollars in actual damages.
trial court conducted a hearing on the countervailing
motions. The issue of whether of Catherine was entitled to a
permanent injunction against Robert was hotly contested. As
he had in his motion, Robert argued that the injunction could
not be based on the jury's determination that he had
intentionally inflicted severe emotional distress on
Catherine because the only basis for that claim was the June
2015 incident for which Catherine had also asserted the torts
of assault and false imprisonment. Robert asserted that,
because Catherine had redress through these torts, she was
not entitled to rely on the gap-filler tort of intentional
infliction of emotional distress. Robert pointed out that the
jury had found against Catherine with regard to her assault
and false imprisonment claims.
responded to Robert's arguments by pointing out that she
had supplemented her injunction application to include a
request for relief based on the August 2015 telephone call.
Catherine also pointed out that, at trial, she had asserted
that the threatening phone call supported her claim for
intentional infliction of emotional distress. She further
pointed out that she had testified regarding the threats of
violence Robert made against her, and she cited the testimony
of Ida Glover, who had been present when she received the
call. She called attention to the lack of evidence Robert
offered at trial to counter her claims regarding the phone
also asserted that Catherine's claim for injunctive
relief was undermined by the fact that Stuart had died. He
averred that this had eliminated the reason for Catherine and
Robert to interact. Catherine responded by pointing out that
Robert's threats had not been limited to harming
Catherine only while Stuart was alive.
further pointed out that Catherine never had the trial court
sign a temporary injunction against Robert, indicating that
Catherine did not necessarily fear Robert. However, during a
discussion at the hearing, mention was made that the parties
had agreed to a temporary injunction, which Robert's
attorney described as amounting to an agreement that
"you stay away from me, [and] I stay away from
hearing the parties' arguments, the trial court stated
that Catherine was entitled to injunctive relief that would
order Robert "not to call [Catherine] or to
intentionally approach her or go near her." The trial
court indicated that it based its decision to order
injunctive relief on the jury's unanimous intentional
infliction of severe emotional distress and malice findings.
The court emphasized, "[I]t's one thing if the jury
had just found intentional infliction of severe emotional
distress, but they also found that it was committed with
The trial court further explained,
I'm going to go ahead and I'm going to enter the
judgment and render judgment for the permanent injunction. I
don't feel it's in any way unduly restrictive or
harsh on Mr. Livingston. If he has no intent of calling Mrs.
Livingston, which I would hope would be the case, or going
near her, this permanent injunction should not cause any
inconvenience or certainly any harm to him, but would give
Mrs. Livingston the court protection and the knowledge that
Mr. Livingston has been ordered by the Court not to call her
anymore and not to go near her, because again, the jury found
unanimously that he committed a malicious act causing her
severe emotional distress.
trial court also noted that it considered Catherine's age
(she was 76) in making its decision to grant the injunction.
trial court further noted that it "want[ed] to state for
the record" that it had observed Robert acting with
"a degree of visible aggressiveness" and
belligerence during trial while he was being questioned by
Catherine's counsel. The trial court also stated,
"The Court has even noticed even as he sat here in the
courtroom today. . . I see what appears to be signs of a
temper and aggressiveness."
end of the hearing, the trial court discussed the wording of
the injunction with the parties. Catherine had filed a
proposed judgment with the court, containing injunctive
language. The trial court reviewed the wording of the
proposed judgment and asked Robert whether he wanted to have
input regarding the form of the injunction's language.
Robert stated that he objected to "the entirety" of
the injunction. The trial court responded,
I understand that. Right now I'm just looking at the
form. And the Court respects your right to appeal this,
I'm just trying to come up with something that's in
form that should the Court sign it and should it be affirmed
by the Court of ...