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Livingston v. Livingston

Court of Appeals of Texas, First District

September 21, 2017


         On Appeal from the 80th District Court Harris County, Texas Trial Court Case No. 2015-34856

          Panel consists of Justices Jennings, Higley, and Massengale.



         This 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.

         Robert 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, we affirm.


         In June 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.

         Stuart 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.

         Robert 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.

         It is at this point that Robert's and Catherine's stories diverge regarding what happened that day.

         According 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 screaming, '911.'"

         Catherine 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 here."

         Catherine 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.

         Catherine 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.

         Four 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.

         Catherine 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.

         The case was tried to a jury in November 2015. The record reflects that Stuart died the second day of trial.

         Catherine 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.

         Catherine 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.

         Catherine 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.

         Glover 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.

         Robert did not testify regarding the August 2015 phone call.[1] Nor did he offer any evidence to contradict Catherine's or Glover's testimony regarding the call.

         The jury was asked to determine Robert's liability on three causes of action: assault, false imprisonment, and intentional infliction of emotional distress.[2] 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.

         Post-trial, 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 finding.

         Robert 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.

         Catherine 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.

         The 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.

         Catherine 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 call.

         Robert 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.

         Robert 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 you."

         After 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 malice.

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.

         The trial court also noted that it considered Catherine's age (she was 76) in making its decision to grant the injunction.

         The 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."

         At the 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 ...

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