Livingston v. Livingston, 537 S.W.3d 578

Background

Catherine Livingston (76) sued her stepson Robert after two incidents: an alleged June 13, 2015 physical encounter at her husband Stuart’s assisted‑living room and an August 24, 2015 phone call in which Robert allegedly threatened to "hurt" and "kill" her.
A jury found Robert not liable for assault or false imprisonment (the June incident) but found he intentionally inflicted severe emotional distress and acted with malice; actual damages were $0; exemplary damages $2,500.
Catherine sought both damages and injunctions (temporary and permanent), asking that Robert be enjoined from contacting her, entering property where she is present, and approaching within 1,000 feet.
After trial (Stuart died during trial), the court denied monetary recovery to Catherine but entered a permanent injunction enjoining Robert from approaching, knowingly entering property where she is located, or contacting her.
Robert appealed, arguing (1) pleadings and evidence did not support a permanent injunction, (2) IIED was not a proper basis for relief (gap‑filler tort), (3) no imminent harm shown, and (4) the injunction violates Tex. R. Civ. P. 683 and is overbroad/ambiguous.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Pleadings support injunction	Catherine asserted injunctive relief based on both June incident and the August threatening phone call and requested broad relief (1,000 ft, no contact, no entry).	Robert argued pleadings only sought protection for visits to Stuart; Stuart’s death removed the pleaded basis for imminent/irreparable harm.	Court: Pleadings sufficiently alleged ongoing threats from phone call and requested relief beyond visitation; pleadings supported injunction.
Jury findings / entitlement to injunction	Catherine relied on jury’s unanimous IIED and malice findings as underlying liability supporting equitable relief.	Robert argued IIED was improperly submitted (gap‑filler tort) because June facts were covered by assault/false imprisonment; jury found those claims not proven.	Court: Jury decided ultimate facts (IIED, malice); court may grant equitable relief based on those jury findings. Submission of IIED was proper because phone call was tried as basis for IIED and objection on that specific ground was not preserved.
Imminent harm / sufficiency of evidence	Catherine testified she feared for her life after threats; corroborating witness (Ida Glover) heard caller yelling and threatening.	Robert argued fear was speculative, no temporary injunction sought, and death of Stuart removed interactions making threat not imminent.	Court: Evidence supported trial court’s exercise of discretion that imminent harm existed; injunction not speculative.
Form / Rule 683 / breadth of injunction	Catherine sought a permanent injunction as a co‑equal remedy, not ancillary, so Rule 683’s reasons requirement does not apply; wording was acceptable.	Robert argued Rule 683 requires stated reasons; injunction is ambiguous/overbroad (scope, 1,000 ft, "knowingly entering").	Court: Rule 683 applies to ancillary/temporary injunctions, not this permanent injunction; breadth objections waived for failure to raise/form objections post‑trial.

Key Cases Cited

Risner v. Harris Cty. Republican Party, 444 S.W.3d 327 (Tex. App.—Houston [1st Dist.] 2014) (elements and equities for permanent injunction review).
Indian Beach Prop. Owners’ Ass’n v. Linden, 222 S.W.3d 682 (Tex. App.—Houston [1st Dist.] 2007) (abuse of discretion standard for injunctions).
Operation Rescue‑Nat’l v. Planned Parenthood of Hous. Se. Tex., Inc., 975 S.W.2d 546 (Tex. 1998) (court decides expediency/necessity of equitable relief based on jury’s factual findings).
State v. Tex. Pet Foods, Inc., 591 S.W.2d 800 (Tex. 1979) (role of jury vs. court in injunctive relief; jury finds facts, court grants equitable relief).
Hoffmann‑La Roche Inc. v. Zeltwanger, 144 S.W.3d 438 (Tex. 2004) (IIED is a gap‑filler tort; not available where another tort provides redress).
Standard Fruit & Veg. Co. v. Johnson, 985 S.W.2d 62 (Tex. 1998) (IIED unavailable when emotional distress is incidental to another tort).
Etan Indus., Inc. v. Lehmann, 359 S.W.3d 620 (Tex. 2011) (permanent injunction requires an underlying liability finding).
City of Houston v. Morgan Guar. Int’l Bank, 666 S.W.2d 524 (Tex. Civ. App.—Houston [1st Dist.] 1983) (Rule 683 requirement applies to ancillary injunctive relief).