Livingston v. LivingstonLivingston v. Livingston
Lead Opinion
This suit arises from the acrimonious relationship between Catherine Livingston and her step-son, Robert Livingston. Cathi erine 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, ‘91-1.’ ”
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 thé 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 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 “moth-erf* * *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.
The jury was asked to determine Robert’s liability on three causes of action: assault, false imprisonment, and intentional infliction of emotional distress.
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 ■yráy 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 Robért.
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
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 Appeals that the language itself would be the appropriate language.
Robert responded, “My objection stands,” and made no comment or objection
At the end of the hearing, the court signed a judgment. With regard to damages, the court ordered that Catherine “takes nothing from Defendant Robert Livingston.” Under the heading “Injunction,” the trial court ordered as follows:
Defendant Robert Livingston is permanently enjoined as follows:
Defendant Robert Livingston, and his agents, officers, servants, and employees, are enjoined from, directly or indirectly:
(i) Approaching within 1,000 feet (300 meters) of Catherine Livingston;
(ii) Knowingly entering upon any property where Catherine Livingston is located;
(iii) Contacting or attempting to contact Catherine Livingston by telephone, mail, delivery, email, in person or by any other means.
Robert did not file any post-judgment motions, complaining of the injunction. Robert appealed, identifying four issues in which he challenges the permanent injunction.
Basis for Permanent Injunction
In his first three issues, Robert asserts that trial court erred by rendering the permanent injunction. He contends that the injunction was not supported by Catherine’s pleadings, by the jury’s verdict, or by the evidence.
A. Standard of Review & Applicable Law
To obtain permanent-injunctive relief, a party must show (1) the existence of a wrongful act, (2) the existence of imminent-harm, (8) the existence of irreparable injury, and (4) the absence of an adequate remedy at law. Risner v. Harris Cty. Republican Party,
We review a trial court’s ruling on applications for permanent injunctions for an abuse of discretion. Indian Beach Prop. Owners’ Ass’n v. Linden,
B. Sufficiency of Pleadings
On appeal, Robert asserts that Catherine’s pleadings do not support the permanent injunction because her claim for injunctive relief was “clearly predicated on [Catherine’s] contention that injunction was necessary to -allow her to visit Stuart without interruption or interference by Robert. Upon Stuart’s death, there was no imminent or continuing opportunity for Robert to interrupt or interfere as there was no opportunity for Catherine to visit Stuart.” In other words, Robert asserts that the only basis for the injunction pleaded by Catherine was her assertion that the injunction was necessary to facilitate her visits with Stuart “without interruption or interference by Robert.” Because Stuart died before the trial court rendered the permanent injunction, Robert argues that
As Robert’s assertions intimate, a judgment must be supported by the pleadings, and a party may not be granted relief in the absence of pleadings to support such relief. See King v. Lyons,
Here, Catherine’s pleadings sufficiently informed Robert that she sought a permanent injunction, not only to facilitate unimpeded visitation with her husband, but also to protect her from the violence with which she claimed Robert threatened her. In the supplement to her application for injunc-tive relief, Catherine alleged Robert told her on the telephone as follows: “I’m going to hurt you. I am going to f* * *ing kill you.” Catherine indicated that injunctive relief was necessary to protect her from “the continuing nature and immediacy of the threat posed by Robert to Catherine’s safety, security, and life”; thereby indicating that the threatened violence posed an irreparable and immediate injury. In her prayer for relief, Catherine did not limit her request for temporary and permanent injunctive relief to the premises where Stuart resided; rather, she also requested that Robert be enjoined from approaching her within 1,000 feet and from knowingly entering any property where Catherine was present. Thus, Catherine’s pleadings sufficiently informed Robert of the basis of her claim for injunctive relief and presented a basis supporting the permanent injunction.
C. Jury Findings
1. No deprivation of jury findings
Robert also contends that he was deprived his state constitutional right to have the jury determine whether Catherine was entitled to injunctive relief. See Tex. Const. art. I, § 15 (“The right of a trial by jury shall remain inviolate....”). He points out that no question was submitted to the jury addressing the elements of a permanent injunction.
We agree that a litigant is entitled to a jury trial when injunctive relief is sought. See State v. Tex. Pet Foods, Inc.,
The record shows that Robert was not deprived of his right to have the jury determine ultimate issues of fact in this case. The jury unanimously found that Robert had intentionally inflicted severe emotional distress on Catherine. In making this finding, the jury implicitly found— based on the charge’s definition of intentional infliction of emotional distress—that Robert had “act[ed] intentionally or recklessly with extreme and outrageous conduct to cause [Catherine] emotional distress and the emotional distress suffered by the plaintiff was severe.” The jury charge defined “extreme and outrageous conduct” as occurring “only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community and that he had acted with malice.” The jury, in a separate question, found “by clear and convincing evidence that the harm to Catherine Livingston resulted from malice,” which the charge defined as “a specific intent by Robert Livingston to cause substantial injury or harm to Catherine Livingston.”
2. Intentional infliction of emotional distress question
a. Robert failed to show jury question not based on phone call,
At the post-trial hearing on the motions to enter judgment, Catherine asserted that the jury’s intentional infliction of emotional distress and malice findings supported her request for permanent injunction against Robert. Robert disagreed, claiming that the intentional infliction of emotional distress finding could not serve to support the injunctive relief awarded by the trial court.
Robert requested the trial court to disregard the jury’s verdict with respect to the intentional infliction of emotional distress claim. Robert claimed that the jury charge should not have included a question regarding intentional infliction of emotional distress. He asserted that Catherine’s only redress had been through the independent torts of assault and false imprisonment with regard to her claim that, on June 13, 2015, Robert shoved her to floor and then prevented her from leaving Stuart’s room. He pointed out that the jury had found against Catherine on both of these causes of action.
Catherine responded by pointing out that she had supplemented her application for injunctive relief to include her claim that Robert had telephoned her in August 2015, threatening to hurt her and to kill her. Catherine asserted that these allegations permitted her to assert a claim for intentional infliction of emotion distress. The trial court agreed with Catherine, indicating that the jury’s unanimous findings of intentional infliction of emotional distress and malice supported Catherine’s request for injunctive relief.
On appeal, Robert reiterates that the affirmative finding of intentional infliction of emotion distress cannot serve to support the permanent injunction because Catherine was not entitled to a jury question on that claim. In support of his argument, Robert points out that intentional infliction of emotion distress is a “gap-filler tort, judicially created for the limited purpose of allowing recovery in
Robert asserts that Catherine based her claim for intentional infliction of emotional distress only on the alleged incident in June 2015, a claim for which she already had redress under the torts of assault and false imprisonment. He1 avers that Catherine abandoned the allegation that, during a call in August 2015, Robert threatened to kill her. Catherine disagrees, averring that the threatening telephone call was a basis she asserted to support her intentional infliction of emotional distress claim.
The' record supports Catherine’s contention that she did not abandon her allegation regarding the phone call as a basis for her intentional infliction of emotional distress claim. In the midst of Catherine’s trial testimony, Robert objected to Catherine testifying regarding the August 2015 phone call on the grounds that it was not relevant to her claims and that it was prejudicial. Robert also claimed that the call had.not been pled as a basis for Catherine’s causes of action.
Catherine responded, averring that the threatening phone call was a basis for her intentional infliction of emotional distress claim. Catherine confirmed that the phone call had been pled as a basis for injunctive relief and that she had disclosed in her discovery responses that the .phone call served as a basis for her claim.
In addition, during closing arguments, Catherine made the following argument, demonstrating that she had not abandoned her allegation regarding the phone call as a basis for her intentional infliction of emotional distress claim:
And then you’re asked about intentional infliction of emotional distress. We submit, ladies and gentlemen, that the evidence shows that there were two times at least that Robert Livingston intended to and did, in fact, inflict emotional distress, once:.when he stormed into the room yelling and screaming and shoved her and, second, when he made a threatening telephone call. I acknowledge that on the—our allegation of intentional infliction of emotional distress involving the storming into the room there’s contrary testimony from the Defendant, but on the telephone call—and you heard testimony of threatening language, obscene language, language that threatened the life of her and her son. And what did you hear contrary to that?
To support his assertion that Catherine abandoned her allegation regarding the threatening phone call, Robert points to the charge conference. There, Robert objected to the submission of the issue of intentional infliction of emotional distress on the ground no evidence supported it. Catherine responded, “On intentional infliction of emotional distress, respectfully, the evidence is unanimous. There was no contradictory evidence to what occurred in the telephone call after [Catherine’s] hip surgery and this Court—[.]” At that point, Robert’s counsel interrupted, stating, “[T]he telephone call is off the table.” Catherine’s counsel responded that opposing counsel should not interrupt him. The trial court then stated,
I understand. Even though that’s correct, Counsel shouldn’t interrupt; hut the phone call is not—wait a minute. What they’re saying is they didn’t—the Plaintiff didn’t ask for a separate submission on whether that [the phone call] constituted assault, but they are alleging it as evidence of intentional infliction of emotional distress. So I’ll let you complete—I’m going to overrule the objection. ...
(Emphasis added.)
Robert asserts that the trial court’s stateriient, “Even though that’s correct,” referring back to the statement by Robert’s counsel that the phone call is “off the table,” shows that Catherine had abandoned the phone call as a basis for her intentional infliction' of emotion distress claim. We disagree.
Following the statement, “Even though that’s correct,” the trial court then said “wait a minute” and recognized that Catherine whs not seeking to base her assault claim on the phone call. The court acknowledged that Catherine was “alleging [the phone call] as evidence of intentional infliction of emotional distress.” The trial court then overruled Robert’s objection to the submission of Catherine’s claim for intentional infliction of emotional distress. The exchange and the record show that Catherine had not intended to abandon the phone call as a basis for her intentional infliction of emotion distress claim, although she had abandoned it as a basis for her assault claim.
Robert also asserts that the form of the jury charge shows that Catherine was pursuing all of her claims, including the intentional infliction of emotion distress claim, based solely on the June 2015 assault allegation. He points out that the charge included only one actual damages question. Robert avers that, if she had been pursuing her intentional infliction of emotion distress claim based on the August 2015 phone call, rather than the June 2015 assault, Catherine would have submitted a separate actual damages question to correspond to that incident, This argument, however, does not overcome the express assertions by Catherine, during her own testimony, during the charge conference, and during closing argument, indicating that the phone call was a basis for her intentional infliction of emotion distress claim. .In short, Robert' has failed to show that Catherine did not base her claim for intentional infliction of emotional distress on the August 2015 phone call, and thus he has not shown that the issue should not have been submitted to the jury.
b. The Dissent.
The Dissent asserts that evidence of the August 2015 phone call-did not support the submission of the intentional-inflietion-of-emotional-distress question because “an intentional threat of causing imminent bodily, injury to another [such as the phone call] gives rise to the ordinary common-law tort of assault.” In oth-ér words, the Dissent takes the position that the phone call was
The Dissent indicates that Robert did raise the objection in the trial court that Catherine’s intentional infliction of emotional distress claim could not be based on the phone call because she already had the tort remedy of assault for that conduct. In support of this position, the Dissent points to statements in Robert’s motion to disregard the jury’s verdict in which Robert averred that Catherine’s “claim for recovery under an IIED allegation is an alternative claim” to her “assault and false imprisonment claims,” and as such she was “barred from any recovery under her IIED allegation and the claim should have never been submitted to the Jury.” However, placing the quoted statements in the context of the entire motion shows that Robert was not arguing that Catherine could not recover under the theory of intentional infliction of emotional distress based on the August 2015 phone call because the tort of assault provided her redress for that conduct; rather, Robert was arguing only that Catherine could not base her intentional infliction of emotional distress claim on the June 2015 incident because she already had redress through the torts of assault and false imprisonment for that conduct.
Preceding the statement quoted by the Dissent, Robert asserted in the motion that “[Catherine] not only had substantive causes of action, she presented them to the Court and the Court provided its Charge to the Jury to determine the substantive claims of assault and false imprisonment.” In making this assertion, Robert was arguing that Catherine could not recover under the gap-filler tort of intentional infliction because her claims for assault and false imprisonment had been "presented to the jury in the jury charge. And the record shows that, as presented in the charge, the basis for these two claims was Robert’s June 2015 conduct. With regard to assault, the jury question was limited to the June 2015 incident. The question asked the jury: “Did Robert Livingston commit an assault against Catherine Livingston on or about June 13, 2015?”
Also in the motion, Robert pointed out that Catherine had only one damages question for all of her claims. He averred, “Having offered only one measure of damages, regardless of the claim asserted, [Catherine] (and the Court) made clear that [Catherine’s] alleged damages for IIED were indistinguishable from [her] alleged damages for assault and false imprisonment.” Again, the only basis on which the jury was asked to determine whether Robert had assaulted and falsely imprisoned Catherine was his June 2015 conduct.
[I]n this case, [Catherine] testified to only one set- of facts (the alleged assault and false imprisonment of June 13, 2015) in support of her claim for damages (which damages were presented -to the Jury as the same for each and all causes of action asserted both by Plaintiffs testimony and by the Court’s Charge). There were no separate facts for IIED from the facts alleging assault and false imprisonment.
Thus, when Robert wrote in his motion, as cited by the Dissent, that Catherine’s “claim for recovery under an IIED allegation is an alternative claim” to her “assault and false imprisonment claims,” and as a result she was, “barred from any recovery under her IIED allegation and the claim should have never been submitted to the Jury,” Robert was referring only to Catherine’s claims for assault and false imprisonment based on his June 2015 conduct. Robert never claimed that Catherine could not bring an intentional infliction of emotional distress claim because she had the tort remedy of assault to seek redress for the August 2015 phone call. Instead, his argument with respect to the phone call was that Catherine had never asserted that conduct as a basis for intentional infliction of emotional distress. Those are yery different objections. In reviewing this point, we are reminded that an “objection must apprise the trial court of the error alleged such that the court has the opportunity to correct the problem.” Burbage v. Burbage,
Nor does Robert argue in his appellate brief that Catherine was not entitled to a jury question on intentional infliction of emotional distress because she already had redress for that claim by way of an assault claim. See Moyer v. Moyer, No. 03-03-00751-CV,
On appeal, as discussed supra, Robert’s position with regard to the August 2015 phone call is to assert that, at trial, Catherine did not base any of her claims on that conduct. Robert’s position is further seen in the following statement he makes in his brief: “Prior to Robert’s testimony, Catherine’s counsel announced it would not be submitting a jury question on the alleged August phone call.... The jury questions all related to the alleged events of June 13, 2015, as requested by Catherine and submitted by the trial court.” Robert further claims in his brief: “There is no jury question which asks about the alleged
In short, Robert never made the objection that the Dissent now asserts supports reversal of the judgment. This Court cannot reverse a judgment on a basis not raised in the trial court or on appeal. See Banda v. Garcia,
3. No actual damages finding required
Woven throughout his brief, Robert also identifies a number of other reasons why the jury’s verdict does not support the permanent injunction. He points out that the jury found no actual damages for any of Catherine’s causes of action. Robert asserts this shows that Catherine had “no actionable cause of action” and intimates that, for this reason, the jury’s affirmative finding regarding intentional infliction of emotion distress does not support the permanent injunction..
Robert’s argument is without merit because he appears to confuse the concepts of - liability and remedy. “A permanent injunction is an equitable remedy for some other cause of action and requires a liability finding after a final hearing on the merits.” Roper v. Jolliffe,
Here, the jury made a liability finding against Robert, determining .that he had engaged in the wrongful conduct of intentional infliction of emotional, distress. ’ Although the jury did not find that Catherine was entitled to the legal remedy of damages, the trial court nonetheless had the discretion to award Catherine the equitable remedy of a permanent injunction based on the jury’s liability finding. Cf. Dawson v. Lipham, No. 02-15-00136-CV,
Robert also contends that the evidence was insufficient to support the permanent injunction; which enjoined- him from (1) “approaching within 1,000 feet (300 meters) of Catherine Livingston”; (2) “knowingly entering upon any property where Catherine Livingston is located”; and (3) “contacting or attempting to contact Catherine Livingston by telephone, mail, delivery, email, in person or by any other means.” In particular, Robert asserts that the evidence was -insufficient to show that, without the injunction, Catherine would face imminent harm.
“Generally, the purpose of injunc-tive relief is to halt wrongful acts that are either threatened or in the course of accomplishment.” Wiese v. Heathlake Cmty. Ass’n, Inc.,
At trial, 76-year old Catherine testified that, while she was at a rehabilitation facility in August 2015, recovering from hip replacement surgery, Robert called, yelling and cursing at her. She said that he was “furious”' and “very, very angry.” Catherine,stated that Robert sounded “out of control.” She testified that, during the call, Robert called her a “motherf* * *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 also testified that Robert had threatened to kill her “motherf* * *ing son”, because Robert had learned that Catherine’s son had been visiting Stuart.
Catherine testified that she took Robert’s threats seriously, stating that she feared for her life. Catherine responded affirmatively when her attorney asked if she wanted the trial court to issue “an injunction to keep Robert away from you.” Catherine testified that the injunction was needed becausé Robert “can’t seem to control his anger.”
Catherine also offered the testimony of Ida Glover to corroborate ■ her testimony regarding the-phone call. Glover testified that she was sitting beside Catherine at the rehabilitation facility when Catherine received a call on her mobile phone. Glover stated that after receiving the call, Catherine was immediately in tears. Glover testified that, when Catherine moved the phone away from her ear, she could hear the caller, who was a man, yelling. Glover took the phone from Catherine. When she put the phone to her ear, Glover héard the
We acknowledge that an injunction is not proper when the claimed injury is merely speculative; fear and apprehension of injury are not sufficient to support an injunction. See Frequent Flyer Depot Inc. v. Am. Airlines, Inc.,
Robert claims that Catherine did not consider the threat to be imminent because she did not obtain a temporary injunction against Robert. However, Robert made the threatening phone call to Catherine while the case was pending. Catherine filed a supplemental request for a temporary and permanent injunction against Robert after he made the call. The record also indicates that, although not signed by the trial court, the parties had agreed to a temporary injunction between them, which Robert’s attorney described as being to the effect: “you stay away from me, I stay away from you.” Without more, we cannot conclude that the lack of a temporary injunction issued by the trial court prevented the trial court from exercising its discretion and determining that Catherine was susceptible to imminent harm without the injunction.
Robert further asserts that the threat is no longer imminent because, now that Stuart has died, Catherine and Robert no longer interact. However, Catherine did not testify that Robert qualified or limited his threat of physical harm to his interactions with her. Rather, Catherine testified that Robert stated that he would physically harm her, and he would kill her. Given the manner in which Robert stated the threat and its gravity, the trial court had sufficient evidence to exercise its discretion and conclude that Catherine had shown imminent harm.
We hold that, in his first three issues, Robert has not demonstrated that the trial
Form of Permanent Injunction
In his fourth issue, Robert contends that the permanent injunction violates Texas Rule of Civil Procedure 683 because it fails to state the reasons for its issuance. See Tex. R. Civ. P. 683.
We have recognized that Rule 683’s requirement “that reasons for issuance of an injunction be stated applies only to ancillary injunctive relief.” City of Houston v. Morgan Guar. Int’l. Bank,
Robert asserts that Rule 683’s requirement, mandating that the basis for issuance of the injunctive relief be stated in the order, applies here because the permanent-injunctive relief sought by Catherine was ancillary to her request for damages. To support his assertion, Robert points out that, in Morgan Guaranty International Bank, we held that Rule 683 did not apply “to final judgments whose sole object is to obtain a perpetual injunction” but instead applied “only to ancillary injunctive relief.”
Here, the permanent-injunctive relief sought by Catherine was not ancillary to her request for damages. Rather, as pleaded, Catherine’s request for permanent in-junctive relief was at least co-equal with her request for damages.
The importance of the injunctive relief to Catherine’s suit was illustrated by her testimony at trial. When she was asked whether she was seeking monetary damages, Catherine responded that she was and also clarified, “But that’s not the entire reason for this lawsuit.” Counsel then asked, “What is your primary purpose? Why—what is your main reason for being here?” Catherine responded, “I want Robert never to approach me in that way again.” Because the record shows that Catherine’s request for permanent injunc-tive relief was not ancillary, we conclude that Rule 683’s provision requiring the reasons for issuance of the injunctive relief be stated in the order does not apply to the permanent injunction in this case.
In his brief, Robert first complains that the injunction is too broad with regard to whom it applies. Robert also asserts that the injunctive language, enjoining him from approaching Catherine “within 1,000 feet (300 meters),” could subject him to an enforcement action from inadvertently approaching Catherine in a public plaee.
Robert never raised his complaints about the over breadth of the permanent injunction in the trial court. As discussed, the trial court specifically inquired at the post-trial hearing whether Robert had any objections to the form, as opposed to the merit, of the permanent injunction and expressly sought his input into the injunction’s language. Nevertheless, Robert declined, indicating that he generally objected to the rendition of the permanent injunction. Even after the trial court signed the judgment, Robert did not file a post-judgment motion to complain that the language of the permanent injunction was overly broad. Under the circumstances of this case, we conclude that Robert has waived these complaints on appeal. See Tex. R. App. P. 33.1; see also Ford v. Ruth, No. 03-14-00460-CV,
We overrule Robert’s fourth issue.
Conclusion
We affirm the judgment of the trial court.
Justice Massengale, dissenting.
Notes
. Robert asserts that he did not testify regarding the phone call because he believed that Catherine had abandoned the call as a basis for her claims. A discussion on the record before and during the charge conference indicates that Catherine abandoned the phone call as a basis for her assault claim, but she did not abandon it as a basis for her intentional infliction of emotion distress claim.
. We note that Catherine’s petition did not include a claim for intentional infliction of emotional distress; however, the record shows that, at trial, the parties and the trial court understood that Catherine had asserted it as a cause of action. Moore v. Altra Energy Techs., Inc.,
. The record indicates that, at some point, Catherine advocated for the phone call to serve as a.basis for her assault claim as well as for her intentional infliction of emotional distress claim. However, the record also indicates that, prior to the charge conference, Catherine agreed to abandon the phone call as a basis for the assault claim, but she made clear at that time that she was not abandoning the phone call as a basis for her intentional infliction of emotional distress claim.
. We note that, throughout his brief, Robert mentions that Catherine did not expressly request injunctive relief in her post-trial motion to enter judgment. Instead, the focus of her motion, was a request for the trial court to render judgment on the $2,500 in exemplary damages awarded to her by the jury. Catherine made this request (which was denied by the trial court) even though the jury had found that she had suffered $0 in actual damages. See AVCO Corp., Textron Lycoming Reciprocating Engine Div. of AVCO Corp. v. Interstate Sw., Ltd.,
. Robert also complains that the trial court did not file findings of fact and conclusions of law in support of the permanent injunction, even though he timely requested them and timely filed a notice of past due findings. However, Robert’s brief provides no legal authority or analysis regarding this complaint. Thus, the complaint is inadequately briefed and preserves nothing for our review. See Tex. R. App. P. 38.1(i). Nonetheless, we note, "when part of a cause is decided by a jury and part by the court, the party appealing the court-decided issue should request findings of fact and conclusions of law.” Operation Rescue-Nat’l v. Planned Parenthood of Hous. & Se. Tex., Inc.,
. We also note that the judgment can be read to provide some indication of the bases for the issuance of the injunctive relief. The jury’s questions and answers were set out verbatim in the judgment, including the jury’s finding that Robert “intentionally inflict[ed] severe emotional distress on Catherine Livingston.” The judgment also contained the jury's finding that Robert acted with malice, indicating that Robert had a specific intent "to'cause substantial injury or harm to Catherine Livingston.”
. Robert also points out that 1,000 feet and 300 meters are not exactly the same measurement. However, we note that 1000 feet is 304.8 meters, and 300 meters is 984.3 feet, not a significant enough distinction to render the injunction ambiguous.
. In his reply brief, Robert asserts that "sanctions are appropriate” against Catherine because, he claims, she has misrepresented the record. We do not agree that sanctions are appropriate.
Dissenting Opinion
dissenting.
Appellant Robert Livingston challenges the legal sufficiency of the evidence to support a permanent injunction. Appellant’s
“[A] claim for intentional infliction of emotional' distress cannot be maintained when the risk that emotional distress will result is merely incidental to the commission of some other tort.” Standard Fruit & Vegetable Co., Inc. v. Johnson,
“Where the gravamen of a plaintiffs complaint is really another tort, intentional infliction of emotional distress should not be available.” Zeltwanger,