*1 RESCUE-NATIONAL, OPERATION Res America, Rescue, Philip
cue Dallas L.
“Flip” Benham, Jewitt, Bob Keith Tuc
ci, Treshman, Appellants, and Don
PLANNED PARENTHOOD OF HOUS TEXAS, INC.,
TON AND SOUTHEAST Loop Clinic, A-Z
West Women’s Health
Services, Clinic, Downtown Women’s Clinic,
Houston Women’s Women’s Pa
vilion, Women’s Medical Center N.W.
Houston, AAA Concerned Women’s Cen
ter, Family Planning Aaron’s Clinic of
Houston, Clinic, Suburban Women’s Dr.
Jerry Edwards, Kaminsky, Dr. Robert P. Karpen, Doug
Dr. Dr. Bernard Rosen
feld, Coleman, Adebayo Dr. John and Dr.
Adesomo, Appellees.
No. 14-95-00363-CV. Texas, Appeals
Court of (14th Dist.).
Houston
Dec. 1996.
Rehearing Overruled Jan.
66 *7 AMIDEI, and
Before ANDERSON SEARS* JJ. OPINION
MAJORITY SEARS, (Assigned). Justice judgment appeal This is from enjoin awarding damages permanently and ing groups anti-abortion and appellants, interfering ap leaders, access to from with ten pellees’ Appellees and clinics. are homes who climes and several doctors women’s upon perform Based sometimes abortions. appellants were liable jury’s findings that interference, in conspiracy, for civil tortious rights, privacy property vasion of judgment punitive actual dam awarded ages appellee Planned Parenthood (“Planned Texas, and Southeast Inc. Houston Parenthood”). “Flip” Philip Ben- Appellants, Jewitt, ham Bob are referred as “B/ J,” appellants, Operation Rescue-Nation Rescue, al, America, Don Dallas Rescue Tucci, collectively Treshman and Keith are briefs, In separate referred to “OR.” B/J thirty-seven points raise error and OR ninety- fifty-four points, raise a total error, many overlap. of which one permanent injunc groups Both contend tion violates both the Texas United They also attack States Constitutions. sufficiency of the evidence to substantiate supporting injunc findings trial court’s complain in the They tive of errors relief. instructions, composition in the judg jury, in the amended and corrected ments, assessment of costs. addition, sufficiency challenge the OR *8 punitive supporting the actual and evidence imposed against We affirm damages them.1 judgment of the trial court. Sekulow, Jay Washington, Alan Cactus Houston, Pinedo, Cagle, Jack James Austin Background Tomball, Antonio, Schmude, Richard W. San sought with the Appellants interfere appellants. for and Planned Parenthood other activities of Manne, during in Patrick, Collyn family planning August clinics Kathy D. S. Neal in Houston, Hous- Peddie, appellees. Republican National Convention A for tortiously they operatives sitting by assign- and their clinics or *The Honorable Ross A. Sears By failing ment. with the clinic’s business. interfered error, any complaint allege point error Appellants any points have of error not raised findings San Jacin has been waived. to these attacking sufficiency support- of the evidence Duke, Authority to (Tex. 1990). they River ing jury’s findings participated in a conspiracy to with the business of the interfere Treshman, Parenthood, ton. Don the National Director plus pre- post-judg- Planned and appellant America, Rescue ment announced a interest: concerted, plan large-scale for a assault on $204,585 damages in actual Opera- from providers. Houston abortion Treshman met Rescue-National, America, tion Rescue Operation with leaders of Rescue-National Treshman, Tucci, Don jointly and Keith before groups the GOP Convention. The severally; plus and punitive damages as agreed jointly pressure exert on Planned $350,000 Operation follows: from Rescue- Parenthood and other climes to force them to National; $355,000 America; from Rescue during close primary Convention. The $155,000 Treshman; $150,- from Don and conducting tactic was sponsoring “res- Tucci, 000 from Keith for a total of cues” which are blockades of clinics. In $1,010,000 ad- punitive damages. dition, Operation planned promote Rescue judgment permanently enjoined and re- pickets physicians residential who worked interfering strained from with the clinics, at the and Rescue America was to clinics, harassing physicians and their pickets. coordinate information on these Pat family members, demonstrating within a Mahoney, spokesman Operation for Res- specific zone as to each clinic and doctor’s cue-National, acknowledged that the two range residence. These zones from fifteen groups purpose had a common plan thirty-two feet to feet around the entrances working were “all goal.” toward a common to the climes maps and are outlined on at- Appellants plan also announced their at a injunctive tached to the order. The demon- press conference. stration-free zones also extend thirteen feet property from the physi- line front of each In response, appellees and others filed suit judgment cian’s incorporates residence. The temporary and obtained a restraining order findings the trial court’s of fact and conclu- (TRO) preventing appellants coming from sions of law as to the relief. appellees’ within a 100-foot “buffer zone” of entry judgment, After the cause was Tucci, Appellants clinics and homes. Ben- Court, transferred to the 333rd District Jewitt, along ham and with others who are Judge signed where Richard Bianchi parties appeal, intentionally to this violat- Injunc- Judgment Amended and Permanent part ed barring of the TRO demonstra- 1, 1995, February tion on to correct two tions within the 100-foot zone around the judgment. Subsequently, errors in the exits, they clinics’ entrances and 15, 1995, June court same entered a jailed. relief, sought All habeas which the Judgment Nunc Pro Tunc and Permanent Supreme granted. Texas Court The su- Injunction to include the attachment of ex- preme court imposing held that the TRO inadvertently hibits omitted from the speech-free 100-foot zone around the clinics’ Judgment. appeal Amended This resulted. protestors’ entrances and exits violated the right expression constitutional to freedom of Jury Composition showing because there was no the zone was protecting the “least restrictive” means of points forty-six forty- In their Tucci, the climes from parte harm. Ex 859 seven, OR contend the trial court erred (Tex.1993) (plurality opinion). refusing jurors cause, to strike certain requiring peremptory them to use all of their Appellees then pleadings, amended their challenges jurors accept they found ob *9 sought permanent injunction, a and Planned jectionable. complaints raise the same B/J puni- Parenthood later asked for actual and twenty-nine points thirty. in their and damages. Following jury tive a six-week two-day evidentiary hearing trial and a on preserve To error the trial court’s particulars proposed the of the objectionable jurors, failure to strike relief, Judge Eileen O’Neill of the 190th Dis- complaining party timely bring must its com signed Judgment trict Court a and Perma- plaint to the trial court’s attention before Injunction 5, nent on making peremptory challenges. December 1994. The its Hallett judgment Center, following damages awarded the to v. Houston Northwest Medicat (Tex.1985). purpose or object knowledge of 888, 3. who have 889-90 S.W.2d action, trial ing party specifically inform the course of and must objectionable jurors remain court which will commits at persons one of such 4. least made, and all are peremptory after strikes conspiracy. act to further the least one given must be before the actual this notice crimi- means violative of either “Unlawful” Id; the strikes. see also Beavers exercise of civil nal or law. Services, Northrop v. Worldwide Aircraft discretion The trial court has broad Inc., 669, (Tex.App S.W.2d . —Amaril submitting and defi explanatory instructions 1991, denied); Wyatt Carpenter lo v. writ Wisenbarger v. Gonzales Warm nitions. (Tex.Civ. Co., 748, 501 S.W.2d 750-51 Constr. Inc., Hosp., 789 S.W.2d Springs Rehab. refd App. [14th Dist.] writ — Houston de writ (Tex.App. Corpus Christi n.r.e.). — nied). prop Instructions and definitions are case, In this after trial court excused plead they by are raised the written er when cause, jurors potential the court several evidence, by they aid ings, supported challenges appellants’ for cause overruled answering questions in the jury in venire members. twenty-one additional 277, 278. P. charge. Tex.R. Civ. peremptory parties then their made object Appellants strikes. did not jury preserve in the To error challenges court’s of their for cause denial must court charge, party a make the trial parties until after all had exercised timely complaint, plainly, aware of the peremptory about to strikes and the High ruling. Dept. and obtain a State They jurors argued be two sworn. (Tex. 235, 241 ways Payne, v. 838 S.W.2d impaneled objectionable about to be 1992); party P. A is re Tex.R. Crv. 274. challenged peremptori- have been would object when court submits an quired to ly they They if could so. then have done or definition. question, erroneous instruction jurors they listed have seven whom would 274; see, Eagle e.g.,Spencer v. Tex.R. Civ. P. strike, peremptory they used a faded to but (Tex.1994). 154, 157 Co., Ins. 876 S.W.2d Star fully objection a articulate their and obtain charge Objections be must made before addition, ruling. appellants seek In did not jury. Pac. R.R. Missouri Co. is read challenges. By failing peremptory additional Cross, (Tex.1973); 868, 873 object to the trial court’s refusal to strike If 272. a submitted instruc Tex.R. Civ. P. objectionable jurors perempto- until after the erroneous, not matter which tion is it does made, ry appellants strikes were have waived Religious party proof. has burden of error, any. if points twenty-nine B/J’s Houston, 836 City Heart v. the Sacred thirty points forty-six forty- and OR’s (Tex.1992). A written 613-14 seven are overruled. only question, a request required when is omitted. TexR. instruction or definition Charge Error P. 278. Civ. points through four seven error B/J’s Appellants the trial court’s contend seven, through appel- one and OR’s conspiracy is erroneous be instruction on Jury alleged about complain lants errors requirement it a cause does include provided No. which in relevant Instruction conspiracy “overt” acts to further be , part: addition, they contend “unlawful.” conspiracy” “Civil means combination it fatally instruction is flawed because accomplish persons or an un- two more requirement that there be failed to include a accomplish purpose lawful or to a lawful proximately resulting from con damages To a civil purpose unlawful means. find spiracy. following: conspiracy, you find must persons, or combination of two more reject appellees’ contention that We preserve all of properly agree meeting failed 2. who have *10 charge. complaints At course its about the purpose on a common or minds conference, objected appellants that action, charge 70 Clinics, require any
the instruction did not
an
Physi-
“unlawful
of the Plaintiff
Plaintiff
cians,
harm,
overt act” and that there was no element of
injury,
or Intervenors suffer
or
damages
in
included
the cause of action. damages
proximately
by
that were
caused
attorney representing
Benham and Jew-
conspiracy?” Question
predi-
No. 3 was
objected
itt
to the definition in Instruction
liability
cated on an
affirmative answer
2,
definition,
No.
and tendered another
which questions
conspiracy
on
to interfere with the
parties stipulated
was refused. The
at trial
business, privacy
property rights
appel-
or
objections
by
that
made
one defendant were
expressly permits predication
lees. Rule 277
applicable
Appellees
others.
contend
damage questions
findings
on affirmative
Rescue America and Treshman have waived
liability.
on
Tex.R. Civ. P. 277.
holdWe
any complaint
conspiracy
as to the
definition that
submitting
court did not err in
attorney
because their
did not
rul-
receive a
damages separately.
However,
ing.
objection
when an
is made
change
and the court
in
charge,
made no
Supreme
The Texas
Court has re
presumed
objection
it is
that
proper-
was
peatedly
conspiracy
defined a
“a com
civil
ly
timely presented
objec-
and that the
by
persons
bination
two or more
to accom
tion was overruled. Acord v. General Mo- plish
purpose
accomplish
an unlawful
or to
111,
(Tex.1984);
Corp.,
tors
669 S.W.2d
114
purpose by
lawful
unlawful means.” Fire
addition,
Tex.R. Civ. P.
In
272.
Barajas,
stone Steel Products Co. v.
927
only required
object
to an erroneous
608,
(Tex.1996); Triplex
S.W.2d
Commu
error;
preserve
they
instruction to
were not
nications,
716,
Riley,
Inc. v.
900 S.W.2d
required
substantially
to submit a
correct
(Tex.1995);
Co.,
Massey v. Armco Steel
Therefore,
instruction.
appel-
the fact that
(Tex.1983).
932,
The definition in
question
lants’ tendered
also omitted the
this case is identical. The elements of the
preservation
term “unlawful” is not fatal to
cause of action must be taken in the context
challenge
appeal.
on
object
stating
of this basic
definition
However,
agree
appel
we do
accomplished,
to be
it
the means which
preserve
alleged
lants failed to
error
in OR
accomplished,
Triplex
is unlawful.
Com
points
through
points
three
seven and
six munications,
720; Massey,
B/J
900 S.W.2d at
points, appellants
and seven.
these
com
“gist
First, alleged sey According as to in failure elements. to the court’s case, damages required include a element in Instruction No. struction this Question furthering “unlaw- appellants’ we note No. 3 asked: “Did to find an act
71 reasonably cal- rights as was forming or the denial of their purpose,” ful an act “unlawful probably did cause ren- accomplishing conspiracy. culated to cause and means” of their Tex.R.App. judgment. improper dition of an addition, every In not act of while 81(b)(1). Here, supporting P. the evidence illegal, it protest described at trial was was acts, illegal as as well conspiracy to commit appel uncontroverted that one or more of acts, illegal over- commission charge actions lants’ were unlawful. testimony of the whelming.2 on the Based “unlawful” as “violative either defined admitted, illegal overt appellants Appellants criminal or civil law.” admitted tortiously acts, in- appellants found actions, very least, many of their at the vio and violat- terfered the clinics’business with rights as appellees’ lated common law well as Therefore, rights. privacy physicians’ ed the injunctive is initial order. There also no if find trial court even were to that the we in that the at issue dispute actions this case conspiracy in on the erred its instruction It were “overt.” was therefore established definition, to be would find the error we overt, appellants that some committed unlaw harmless. acts, disputed only ful and the issue was conclusion, find no error we reversible part conspiracy these of a whether acts were charge conspiracy. in the on court’s B/J’s responsible co-conspirator that each is for so points and five of error four and OR’s by any conspirators. done all acts See one two are overruled. Chevrolet, Inc., v. 592 Carroll Timmers 922, (Tex.1979). only 926 S.W.2d Since complain also about Appellants submitted, disputed issues trial must be question or instruction the omission of required court was not to submit the element relating to re harm imminent “overt, Stanley of an unlawful” act. See T.O. twenty-eight of error and OR point lief B/J Paso, 218, Bank Boot Co. v. El 847 S.W.2d point forty-five. Supreme The Texas Court (Tex.1992) only (holding disputed 228 question of immi has determined that jury); issues must be Em submitted proper to submit nent harm is not issue Block, 940, ployers Co. 744 Cos. v. S.W.2d jury, question is a for the instead but (Tex.1988) (same); Brinkman, 944 Kiel v. v. equity. a court of State court decide as 926, (Tex.App. 668 S.W.2d — Houston (Tex. Foods, Texas Pet writ) (holding [14th Dist.] no 1979). litigant right to Although a has a submitting only trial court did not one err action, by jury equitable only ultimate in an required of three elements when the other jury’s for the issues of fact are submitted hold disputed). two were We that the point determination. Id. We overrule B/J instruction, together with court’s the dam forty-five. twenty-eight point of error and OR ages questions, sufficiently encompassed conspiracy ease. elements this Injunctive Relief injunc permanent charge in the To be entitled
When error relief, found, plaintiffs plead pleadings, we must evi tive must review against dence, charge prove if cause of action and the entire determine valid Aquino, 853 Valenzuela v. is harmful. Island Recreational defendants. See the error (Tex.1993) Ass’n, (holding that be Corp. Republic Texas Sav. S.W.2d Dev. (Tex.1986). negli cause of To cause Texas has no action reverse distress, the trial appellants gent emotional charge, must infliction of based on error in- improperly permanent entered a amounted to such a court establish the error States, directly at and it over the United is aimed We note that in addition to violations of civil law, conspirators these and their other well as and state criminal laws local violated, em- threaten appellants may who blockade abortion climes or their actions would have crime to ployees patients. The Act makes it a law. or also be violative of federal now by physi- government "by or threat or passed interfere force of force the Freedom of the federal ” seeking anyone cal with who is Clinic Act. 18 U.S.C.A. obstruction Access to Entrances reproductive (West 1996) performing abortion or other (applicable § occur- conduct 248(a)(1) (empha- 26, 1994). § May health service. 18 U.S.C.A. ring after This Act was on or added). prompted abortion all sis violence at climes *12 72
junction enjoining picketing). overruling residential of the motion for new trial is plaintiffs duplicitous unnecessary. must show that harm is immi KRTS, Inc., nent. v. Henderson 822 S.W.2d party finding a con When attacks a 769, 1992, (Tex.App. 773 [1st Dist.] — Houston cerning upon an issue which it did not have writ). They no must also that establish this proof, the burden of it must demonstrate that if irreparable imminent harm will be support there is insufficient evidence to Liberty is not issued. Mut. Ins. Couchman, finding. Hickey adverse v. See Co., Mustang Equip. Co. v. Tractor & 812 103, (Tex.App —Corpus 797 S.W.2d 109-10 . 663, (Tex.App. [14th S.W.2d 666 — Houston denied). 1990, Christi writ The test is writ). 1991, Dist.] no whether, evidence, examining after all the Appellants present two-pronged a attack supporting finding the evidence is so injunctive granted by on the relief the trial slight, against strong, or the evidence it so First, court. we address their contention unjust finding manifestly that is support the evidence is insufficient to Plas-Tex, clearly wrong. Inc. v. U.S. Steel injunctive granted by relief the trial 442, (Tex.1989); Corp., 772 445 Garza S.W.2d Secondly, appellants’ court. consider we Alviar, (Tex.1965). 821, v. 395 S.W.2d 823 permanent injunction contention that the vio- findings The trial court’s of fact lates both the United States and Texas Con- dignity jury’s have the same force and as a stitutions. upon juiy questions reviewa verdict and are by sufficiency for of ble the evidence Sufficiency A. of the Evidence applied reviewing same standards as are Appellants sufficiency attack the of jury’s supporting the evidence answers. supporting the evidence relief (Tex. Platt, 797, Zieben v. 786 799 S.W.2d findings and the trial court’s and conclusions. 1990, writ); App. no [14th Dist.] — Houston response, appellees appel first assert that Jackson, City City v. Lake 559 Clute every sufficiency factual lants have waived 391, (Tex.Civ.App. S.W.2d 395 — Houston error, any objection point of that dam n.r.e.). 1977, Although Dist.] writ ref 'd [14th excessive, ages by failing bring may of law not be the court’s conclusions separate point complaining of error of the challenged insufficiency, for factual the trial overruling trial court’s of their motion for may drawn from the facts court’s conclusions preserve new trial. on factual suffi To error be reviewed to determine their correctness. ciency complaints, party an must include Sweitzer, 757, County Dallas v. 881 S.W.2d objection in a motion for new trial. See denied). 1994, (Tex.App 763 writ . —Dallas 324(b)(2), (b)(4); Tex.R. Civ. P. Luna v. by Any may proven fact be ultimate Co., Transp. Southern 724 S.W.2d Pacific Transport Ins. circumstantial evidence. Co. (Tex.1987). 383, Appellees argue 384 (Tex.1995). Faircloth, v. S.W.2d appellants overruling complain must of the nature, proof conspiracy Because of its by point a motion new of error when by usually must be made circumstantial evi objection, objection such as Acker, King dence. evidence, sufficiency factual of the is made (Tex.App no [1st Dist.] for the first time in the motion for new trial. . —Houston Hunt, writ); Carr v. directly Appellees authority cite no case n.r.e.). (Tex.App writ ref'd point, relying only on O’Connor’s Texas . —Dallas * that: was instructed this case (1993). Appeals Rules find no Civil We may by by authority requiring such a inter A fact be established direct or other strict A fact is pretation briefing of the rules. hold the circumstantial evidence. estab We trial, by raising specif by proved when filing of a motion for new lished direct evidence sufficiency documentary witness [a] ic in the motion as to the evidence or answers, jury’s spoken. who act or the words supporting the evidence saw the done case, A evi in this is effective to fact is established circumstantial did may fairly sufficiency points. dence when it be and reason preserve error for factual ably proved. facts separate point complaining A inferred from other error (Operation presence in Rescue- Appellants contend the Texas evidence National); jury’s finding support insufficient to violate, actually appellants conspired to 6.Despite existing injunctions imposing violated, privacy or property the doctors’ de- place and manner restrictions on *13 rights. They argue targeting the is in protest also evidence activities fendants’ (or finding clinics, support plaintiff of defendants those sufficient to imminent acting points by jury harm to In OR of error found to be in con- the doctors. them) twenty-four, they continued to eight through cert have en- assert with activity gage protest in toward some of appel evidence insufficient to show that is using ha- enjoined the clinics tactics are engage activity lants will in the in staffs, and clime rassing patients to of the future or that there was imminent risk plaintiff of clinics’ are violative appellees. harm as physician to essen B/J rights, constitutional common law and tially argument make the same in safe, and threaten accessible abor- eight through twenty. points twenty-five seeking tions medical ser- for women through thirty, challenge each OR plaintiff vices clinics. at findings supporting perma court’s of fact injunction. corresponding points nent BAPs sufficiency Appellants attack the of also points twenty-one through twenty-six. are supporting the trial court’s first the evidence injunctive findings as to the relief court’s twenty-seven point conclusion of law B/J are follows: argue point thirty-one. They OR that be- erroneous, findings cause the are the court’s 1. conduct Defendants’ threatens access because it is conclusion cannot stand without by plaintiff seeking to clinics women of Law a factual base. Conclusion No. services; abortion and other medical states: 2. Defendants’ conduct use threatens the relief, injunctive Absent are defendants enjoyment plaintiff and clinics’ and likely engage in the to to tortious continue rights; physicians’ property by jury to be in conduct found violation aggressive harassing 3. and Defendants’ plaintiff physicians’ clinics and common protesting manner and sidewalk rights, and and con- law constitutional such counseling patients of clinic increases likely plaintiff is cause clinics and duct to the medical risks attendant harm. physicians irreparable procedure; abortion Appellants argue the evidence insuffi- targeted picketing Defendants’ support appel- because cient to plaintiff physicians’ homes threatens only testify called witnesses to lees three plaintiff physicians’ and interferes with relief, hearing injunctive and these on rights privacy; testimony provide relevant witnesses did not determining necessity standard for 5. Defendants have not abandoned their constitutionally permissible for and nature of (1) plaintiffs, activities toward but re- record, injunctive Our review of the relief. particular main committed to their however, conspiracy evidence of the reveals protest tactics and would use them business, property to interfere with again plaintiffs if toward the circum- rights privacy appellees, which threatened (such stance as a national media event imminent, irreparable harm. Houston) (2) itself; presented have adduced continuing and abetted others In addition to the evidence at the aided hearing injunction, ample engage in conduct that is either evidence provided supporting plaintiffs’ or in violation of relief tortious rights; principle at the The record contains evi- constitutional trial. defendants, with busi- appellants’ and those found dence of interference malice, ness, rights, privacy property which is jury to have acted with are (such necessary locally harm element either based as Rescue relevant Treshman) Appellees permanent injunction. pre- and Don or have America early up recently organizational evidence that from increased sented aggres- trial, about the Don Treshman testified including the time of counseling promoted Rescue aggressive sive sidewalk engaged in blockades and used rescues or blockades America and discussed counseling” by yelling, screaming “sidewalk plaintiff Although at the clinics. conducted following patients clinics. The at the participate, publication, his did not Treshman videotapes photos of jury saw numerous Newsline, advertised a Rescue America’s during at the climes the Conven- blockades Kaminsky’s at Dr. house. Treshman picket during the there tion. At times Convention Bray, Michael who advocated invited Rev. people out- were estimated to be a thousand abortionists, justifiable speak homicide of Reiner, Judy side Planned Parenthood. America conference the sum- at a Rescue Director, Deputy Dr. Planned Parenthood’s acknowledged that mer of 1993. Treshman Edwards, Jerry appellee, and Larissa *14 it America will use methods Rescue escort, they saw Lindsay, a clinic all testified necessary to save unborn children. deems operating at their di- appellants and those videotaped jury saw the confession successfully imped- attempting to or rection Graff, admitting he “interfered” with Joshua ing preventing or clinic access. Reiner testi- by Loop operation of the Clinic West protests were fied that it was obvious the trying up. it Treshman admitted to blow large organized and that numbers technique Graff used to firebomb that the appearing spontaneously. people were not virtually identical to Loop Clinic was West Tucci, the Reiner testified she saw Keith in detail on his hotline. the one he described Rescue, Operation former national director Operation on Rescue Tucci wrote to followers clinic several times. Reiner tes- outside her letterhead, mur- you “if believe abortion is peaceful, but protesters tified the der, like it’s murder.” act attempted patients’ to block access instead They got the clinic. within inches protest activi- Many engaged of those patients’ faces and often touched them. She ties, Wieghard Rusty such as Tom had to form a human told how “escorts” Thomas, themselves as members advertised get through the patients around circle by wearing its T-shirts. Operation Rescue during large protests. mobs to the entrance they on told Reiner acted behalf Both patients’ and staffs at- She described the on a Operation Thomas was shown Rescue. “like tempts gain access to the clinics shouting protest. at a video “Murderer” running gauntlet.” Rescue Amer- Moloney, described as a John goal operative, that the common ica testified Parenthood has Reiner testified Planned to end abortion of those he worked with was threats, the build- defacement of had bomb going from inside the preventing women rocks, glued the locks ing, thrown bottles and from by preventing physicians climes and shut, butyric acid attacks. She de- and two Moloney at was seen performing abortions. Parenthood an invasion at Planned scribed and also protests clinic hundreds of times or 1990 for which that occurred At many pickets. conducted residential protesters credit. The Treshman claimed directing Moloney was seen protests, these Planned Parenthood and chained entered Ware, on was later arrested Daniel who Scott, blocks. Daniel their necks to cement carrying prohibited fire- charges weapons employee, testified he Planned Parenthood arms his car. being every he leaves the shot time fears appellants’ ac- Miller, physicians testified that protester building. associat- Jesse patients’ men- America, negatively affected their in March tions Rescue told Scott ed with die, made medical physical tal and health and day you brother.” “This is the addition, they risky. procedures more that Planned Parenthood Reiner testified protests at their homes. about the physicians took serious- testified other climes and had Jerry testified his home Dr. Edwards Tucci and Treshman ly the threats made times, the picketed twelve or fifteen their direction. been who work under and those Republican picketing continued after to the repairs made testified She He testi- up to “last weekend.” safeguard Convention building taken to and measures bring signs, come into his protesters fied that building, patients. staff music, Dr. was yard, play yell shortly loud make occurred after David Gunn threats. showing pro- Photographs were admitted in Pensa- murdered outside an abortion clinic his testers at residence. He testified he and cola, America-spon- while a Rescue Florida young daughter his received death threats. place, Ka- picket taking and Mrs. sored was He testified he did not feel comfortable at his minsky she feared for her husband’s testified placed and had it for sale. also home He safety. not want her husband She did protest at Par- described activities Planned during the with come confrontation outside enthood, where di- he worked medical picketers, eventually helped his but he rector. These activities interfered with his daughter Mrs. wife return the house. ability pa- to work stress to his and caused Kaminsky very scary the event testified was Judy tients. Reiner of Planned Parenthood most upsetting. She described it as “the present pickets two testified she at at terrifying through.” A thing I’ve ever been the homes of Drs. Edwards and Rosenfeld later, Moloney days praised few Treshman people and saw associated with Rescue Kaminsky picket for the hotline. his Treshman, Tucci, America. She did not see Jewitt, Doug Karpen Benham however. Dr. testified he had seen had Treshman clinic demonstrations and at office, Kaminsky Dr. his Robert testified Hobby Airport, himmet where Treshman Women’s Medical Center of Northwest *15 him. and and five followed Treshman others Houston, picketed regularly. He saw following monitoring Benham admitted and picket Treshman there about five times. He joint Karpen Dr. effort Dallas Res- in a with Doyle him in testified James followed his car Karpen cue for than six Dr. more weeks. previous Saturday once. The his business practices and at at Aaron’s Women’s Clinic significantly by pieket- was interfered with protestors He Women’s Pavilion. testified protestors testified ers. He the activities of had tried time to access at numerous block pose risk patients. a health to his His house Aaron’s, including attempted blockade picketed A has been about two dozen times. during Republican and an Convention poster photograph “Wanted” awith of Dr. time, organized actual about that Kaminsky during picketing. was blockade used Kaminsky Operation and There Mrs. their home Rescue Treshman. testified had been times, picketed attempted about fifteen the last two at The Wom- time blockades previous Saturday. Kaminsky also Dr. during Mrs. en’s Pavilion Convention. she does testified not feel safe because the Karpen’s been picketed house had about protesters follow them to work. Ka- times, Mrs. past three to but within the four minsky testified she saw several of Tresh- years. and a two half man’s followers her outside both home and Dr. Bernard Rosenfeld testified demon- her husband’s office several times. She every Saturday the Hous- strations occur identify could Treshman’s followers because ton Clinic where he works. The Women’s taking she saw them direction from him or subjected clinic to of vandal- had been acts Moloney. Moloney from John She saw John ism, attacks, including gluing of door acid picket and James and Pratt Estelle locks, Many pa- his flooding of clinic. and had home. She also seen the Pratts and by protestors and tients had been accosted Doyle with in front James Treshman of their out,” “extremely making had been stressed A videotape picketing office. at the Ka- danger- procedures the medical “much more minsky residence introduced was into evi- house ous.” Dr. Rosenfeld testified that his Moloney tape, dence. On shouted at eight six times picketed has been about Kaminsky, just punishment is a Mrs. “there driveway by pro- his and has been blockaded just you deserve.... This is a small activity his testers. with This interfered coming pike. taste of what’s down We ability to and work and terrorized his wife won’t it.” She trust we have to do described children. The activists told his three shoving picket “huge as match.” She children, her, four-year daddy “Your kills ba- old Moloney grabbed her testified John showing daughter Photographs bies.” were admitted teenage pushed ground was protesters yard. activists in her front This incident at his residence. testimony, the encounters she described Adebayo Don Tresh- her Dr. Adesomo testified patients and staff re- protesters. America was the leader with man of Rescue “physically being at” and ported his office at Suburban Women’s “hollered protesters at threats, Republican such during transgressed.” Convention. received Clinic Some as, pro- he was the leader of concluded Treshman denied “You need to die.” She only staff, claimed he went there protest, testing patients harmful to his press. Dr. Adesomo admitted necessary protect talk to the them zone is a buffer picketed. not been He testified house had trauma. psychological and emotional from pro- that an anti-abortion that he was aware protests at Planned Parent- observed She of Res- an admitted follower tester who was hood, any violence at the but never observed working physician America had killed a cue ingress egress was not protests. Her own clinic, and he feared the same at an abortion during trips to Planned her three blocked anyone performing happen fate could Parenthood. abortions. Lindsay, a Planned Parenthood em- Laura trial, and his Dr. died before Coleman photographs ployee, primarily introduced A- deposition He worked at was not taken. setting forth the diagrams of the clinics and at the West Z Women’s Health Services demon- requested zone areas. She buffer his Loop The evidence was that Clinic. signs held through photographs that strated picketed times. house had been several still be read. the buffer zones could outside “organized, conducted Treshman admitted he differences there are numerous She admitted picket at Dr. Coleman’s and announced” a traffic, the level of about the clinics funeral.3 noise, clinic is in a parking, or whether the hearing in- from the on the The evidence opposed to downtown area as residential junctive is directed to the issue relief that, acknowledged since the Houston. She *16 is summarized as fol- irreparable harm and Convention, Par- Planned Republican lows. higher than a wall has constructed enthood provides private enclosed drive six feet and psychologist, Taggart, a testi-
Dr. Morris entrance door. access to the impact picketing the emotional fied about eight patients and staff. He interviewed Kleypass, a Mary Hall Appellants called He char- employees of Planned Parenthood. testified counselor.” She pro-life “sidewalk inter- the reactions of those he acterized considering abortion women approaches she having undergone “people as those of viewed “development and offers literature about report- trauma.” The workers some kind of place where she baby as well as a of the being physically jostled on arrival at ed successful, “side- help.” To be go for could clinic, they yelled at with cries “direct interaction” counseling” involves walk upset and The staff was “baby murderer.” women, “eye using contact.” She with In Dr. after these incidents. unable to work any- grabs intimidation or denied she uses banning “ha- opinion, a buffer zone Taggart’s “gently quiet- one, but instead counsels necessary of the rassing because speech” counseling could not that ly.” She testified testified patients. He distress to staff because she across the street be done from necessary importantly most are restrictions yell and could not interact forced to would be contact, also to re- prevent physical but However, on cross-exami- with the women. yelling and scream- proximity duce party she is not Kleypass admitted nation to the that on four visits ing. He admitted case, most of the not know to this does clinic, only he observed Planned Parenthood them, in concert with does not act appellants, “peaceful protests.” injunction. subject is not Hill, psychologist, inter- Dr. Dale also seeking nurses, party an one doc- patients, three viewed three engage in “will the defendant January In must establish in tor and one volunteer finding rights, Dr. John Coleman’s though appellants allege lated four 3. Even was awarded because Dr. Coleman sufficiency immaterial challenging of the evidence error injunctive relief. damages no appellants and obtained jury’s finding vio- no supporting that Morales, live out its Operation Rescue will enjoined.” 869 fied that activity State v. injunctions and (Tex.1994). despite in gospel the streets Appellants ar- S.W.2d literature Operation Rescue court orders.” harm gue no evidence of imminent there is rescues that threats of “[t]he makes it clear politics has spotlight of national because the every day.” heads hang over the killers’ will and most of the individ- moved from Houston America intends testified Rescue Treshman They con- ual defendants have left Houston. clinics, “continue to to continue blockade Benham, Flip except that all individuals tend save means we feel will effective use Dallas, Ac- in reside out of state. who lives lives,” picketing, continue residential continuing cording appellants, there is no all all activities and avenues “continue irreparable threat of harm. Holo- stopping in the abortion are effective shows disagree. The evidence at trial We Operation Res- wrote to caust.” Bob Jewitt appellants and Rescue Amer- Treshman “[tjhose included supporters of us cue Appellant Operation ica are Houston-based. already had injunction admitted that we operatives Operation Res- Rescue has here. children no injunction from God to rescue and controlled cue and its leaders directed judge rule.” Keith how the would matter sympathetic the activities of followers Tucci, Operation national director former presented There was evidence Houston. wrote, Rescue, the laws matter what “[n]o Ware, Weighard, Rusty trial that Daniel Tom rescuing chil- say, keep are committed we Thomas, Byrd, Money, Mil- John C.D. Jesse letter “we will dren.” He stated another ler, persons and other Houston act at the action_” Reiner continue our ... direct control of in harass- direction or through her protests continued testified the appel- ing, threatening interfering with testimony at trial. Wieghard, Operation lees. Tom a member of immi making its determination of Rescue, signed Operation pledge Rescue’s harm, may the trial court determine nent leadership” “to follow the mission’s and en- that, up to or near violations are shown when Weigh- gage in its activities “as directed.” trial, engaged has the defendant the date ard admitted his intention was to interfere may court in a of conduct and the course with Planned Parenthood’s business. He ad- continue, absent clear assume that it will “anyone supervised mitted he and instructed Foods, contrary. proof to the Texas Pet clinics, who was out there” in front of the probability of the contin at 804. The Graff, including Joshua and that he assisted *17 prohibited practices is not sub uation of the of A-Z He testi- at the blockade the Clinic. injunctive is ject proof, and relief to direct taught techniques these fied he had been for justified trial court finds it proper when the by Operation Res- activities coordinators for notwithstanding equity, a under the rules of White, Opera- cue-National. Jeff director of prom activity of defendant’s cessation the (“Guard Preborn”), tion GOP Our the name Here, activity. Id. there ise to cease the given protest during Con- the activities the violence, inter that threats of was evidence vention, announced that after Conven- proper ference, personal and and invasion of tion, Operation Rescue “had left behind during trial. ty rights up to and continued thriving pastor-lead community in rescue contrary.” proof no “clear to the There was Houston.” law, a of a they Under Texas violation appellants testified that None of the ir constitutionally guaranteed right inflicts willing stop to their activities. Most were warranting injunctive relief. any reparable injury expressed a clear intention to violate Curtis, Newspapers Corp. v. with their activi- Southwestern court order that interfered 362, (Tex.Civ.App. 368 Mahoney Operation Rescue tes- 584 S.W.2d Pat ties. . — Amarillo writ); 1979, Muslim no see also Iranian holding Party” where tified to a “Boston Tea Antonio, 615 City Judge Organization v. San publicly destroyed copy he (Tex.1981). addition, 202, In dis 208 he would do S.W.2d O’Neill’s initial TRO and said type of Benham, constitutes the ruption national of business thing again. Flip the same may Rescue, injunction issue. harm for which an Operation testified he director of Co., at 666. Liberty 812 S.W.2d testi- Mut. Ins. continue his activities. He intended to 78 (Tex.1986); facts, 694, Skrepnek
When faced with similar
this court
722 S.W.2d
697
Bros., Inc.,
that
found
violation of a clinic lessee’s consti
Lehman
Shearson
property rights
irreparable
578,
tutional
(Tex.App.—Houston
caused
579
[14th Dist.]
Advocates,
Right
writ).
1994,
harm.
Inc. v. Aar
no
Life
Clinic,
564,
571
on Women’s
S.W.2d
We conclude that the evidence is sufficient
1987,
(Tex.App.—Houston [14th
writ
Dist.]
support
jury’s finding
appellants
denied),
denied,
cert.
U.S.
109 S.Ct.
violate,
violate,
pri-
conspired to
and did
(1988).
71, 102
clinic
L.Ed.2d
When the
vacy
property rights
physicians.
of the
picketing
faced a
and harass
continuation
addition,
factually
In
the evidence is
suffi-
protesters,
ment
abortion
we determined
in
support
findings
the trial
cient
court’s
money damages
that a suit
for loss of
for
granting
requested
relief both
insufficient,
only
business
ade
and the
physi-
in favor
as
clinics and
of the
injunction
quate remedy
limiting
was an
contrary
cians. The
evidence is not so over-
protests.
Id.
whelming
judgment
as to render the court’s
case,
jury inquired
when
this
unjust. Therefore,
also
that the
we
conclude
appel
it
whether
had to determine that each
support of
trial court’s conclusion of law in
personally
physicians’ priva
lant
violated
necessity
injunction
of the
is not errone-
cy
property rights,
the court instructed
eight
ous. We overrule OR’s
of error
that it
non-defen
could “consider
acts of
thirty-one
through
points eight
and B/J’s
act,
if
if
persons
dants
those
committed
twenty-seven.
through
any,
agents
An
as
of the listed Defendants.
agent is
consents to
on behalf of
one who
act
Complaints
B. Constitutional
subject
another,
princi
control of
point forty-
point one
OR
In B/J
pal, who
manifested
has
consent
three,
permanent
appellants
in
contend
agent
Appellants
no
shall so act.”
make
junction order
because it violates the
is void
complaint
appeal
as to this instruction.
guaranteed in the
right
speech
to freedom of
Therefore,
immaterial
we conclude
it is
First Amendment of the United States Con
that each of the individual
stitution, as
construed Madsen v. Women’s
many
personally engaging
identified
Center, Inc.,
Health
512 U.S.
114 S.Ct.
protest
It
activities.
is not essential
(1994).
They also
81 essentially raise argument complete the same under targeted picketing that a ban on is point forty-four. They error narrowly contend tailored to eliminate the “evil” of an injunction improperly all bans unwelcome at visitor the home. Id. speech included within the term “demon- Supreme applies Court a “some strating” argu- within the buffer zones. This stringent application what more of First unpersuasive ment is because the United principles” evaluating Amendment when an Supreme upheld complete States Court ban injunctive order than it does when a content- “demonstrating” “speech- within a 36-foot neutral, generally applicable statute is re 768-69, free” zone Madsen. Id. at 114 viewed, Madsen, Frisby. as was the case in S.Ct. at 2526-27. 765, at 114 at U.S. S.Ct. 2524. Conse Appellants also contend the ban on quently, injunction satisfy must the re picketing residential is unconstitutional. The Madsen, is, view announced in it must injunction “picketing, banned all patrolling, speech necessary burden no more than demonstrating ... along within zone[s] significant government serve a interest. Id. edge the entire ... street physi of [each 765, 114 at S.Ct. at 2525. property extending cian’s] 13 feet from the property line” into the street prohibited pick- where the resi Madsen dence is located. eting demonstrating within 300 feet of 774, the residences of clinic staff. Id. at Appellants maintain that the United States striking provi- S.Ct. at 2529. In down this Supreme Frisby Court’s decision in sion, the Court found a 300-foot zone would Schultz, 474, 2495, 487 U.S. 108 S.Ct. general marching through ban neighbor- L.Ed.2d 420 controls the constitution- walking hood or even a route front of an ality protests of the ban on physicians’ at the houses, prohibi- entire block of instead of traditionally subjects residences. The Court tion on picketing taking place solely “focused public restrictions on picketing issue to care- particular in front of a residence” that scrutiny. ful The restrictions must be nar- 775, approved Frisby. Court had Id. at rowly tailored significant govern- to serve a at recognized S.Ct. 2530. The court ment interest and open ample must leave time, picketing, “limitation on duration of alternative channels of communication. Id. pickets and number of outside a 482, smaller zone at at Frisby, S.Ct. 2501. accomplished could have the desired result.” upheld Court banning picketing ordinance Id. neighborhoods, in residential finding anti- protestors abortion ample had alternative proposed by The more narrow restriction proselytize 484,
means to
their views. Id. at
Supreme
precisely
the U.S.
Court is
what
The Court also found
amplification
the restric
limits on sound
within 100 feet
significant
tion
government
Madsen,
served a
interest:
Supreme
of the residences.
protection
privacy.
residential
A
approved
Id.
Court
even broader limitations on
narrowly
is
restriction
tailored if it
amplification
eliminates
sound
near the residences of
no more than
the exact source of the “evil” it
clinic staff.
at
Id.
82 driveways, to state reason for its issuance. and it one fails a access to their leaves Found, v. Doer open Courtlandt Place Historical lane of traffic for alternate channels of ner, 924, (Tex.App by 768 S.W.2d 926 appellants or others. communication . —Houston writ). 1989, every While order [1st Dist.] no injunction protests the hold on We the injunction granting an must forth the set satisfies the criteria set doctors’ residences itself, if for its issuance in the order reasons Madsen, is Frisby in as well as and forth additional, enjoined party detailed the wishes therefore constitutional. findings, party may request make un a Appellants also contend the trial findings procedure governing der the rules of specific findings sup court made no factual generally. Transport v. Robert of fact Co. They porting injunctive argue relief. Inc., 551, Transports, 152 261 son Tex. made mere conclusions that court instead (1953). 549, party 553 Where a fails S.W.2d appellants conduct “threatened” access findings request to additional or amended to Appellants and use of the clinics. failed original findings, the the court its after files complaint our preserve this for review. complain appeal party right waives any any jury, party cause tried without a findings complete full that the and request writing in its may the court to state or failed to enter additional that the court findings of fact and conclusions law. Blassingame, findings v. of fact. McDuffie part Tex.R. Civ. P. 296. When cause is 329, (Tex.App 883 S.W.2d 337 . —Amarillo court, by part decided denied). 1994,writ appealing the party court-decided issue Here, injunctive trial court’s findings request of fact and conclu should specific reasons adequately order stated Koecher, v. & Assocs. sions law. Heafner findings were for issuance. If additional its 309, (Tex.App [1st 313 861 S.W.2d . —Houston needed, requested have should writ); 1992, v. Dist.] no Shenandoah Assocs. failing find By request additional them. Inc., 470, K 484 Properties, & 741 S.W.2d J right ings, appellants have waived denied). 1987, (Tex.App writ . —Dallas findi about or incorrect complain omitted Morning v. findings satisfy ngs.5 in case News Co. this See Dallas ISD, injunctions. general requirements for Dallas Board Trustees governs injunctions, provides in writ de (Tex.App 683 538 Rule . —Dallas nied). findings omitted part: request, Without a relevant judgment. presumed support of the will in be Every granting ... order Enters., Bank Inc. v. John James Holmes issuance; its shall set forth the reasons for Inc., Rental, Equip. & ston Constr. terms; specific be in shall shall describe (Tex.App S.W.2d and not reference to reasonable detail . —Beaumont n.r.e.). writ ref 'd document, complaint or other the act restrained; sought or acts to be specific con- appellants’ court recited action, binding only upon parties injunctive justified relief. duct which officers, servants, employees, agents, their appellants continued The court found that attorneys, upon those active existing injunc- activity despite protest participation concert with them who restrictions, place manner imposing tions by per- receive actual notice of the order relief, injunctive and concluded that absent sonal or otherwise. service engage likely to continue to defendants were fact, appellants requirements of their tortious conduct. Tex.R. Civ. P. 683. The brazenly ignored previous orders mandatory strictly and must be have Rule are deter- Felipe, The court judges N.A. several states. followed. InterFirst Bank San Co., (Tex. narrowly injunctive relief tailored Paz mined Constr. 1986). significant required required protect several Findings of fact are not interests, governmental which are substan- challenge validity of an order however, be new cannot Appellants objected findings and the for to the trial court’s motion 5. timely request. Crv.P. See Tex.R. construed as in their for new trial. The record does motion request findings. additional not contain a *22 $1,149 system; tially phisticated sprinkler for ex- the same as those identified Madsen. $7,658 narrowly fencing; guard during for specific, The court detailed the tai- tra services construction; $3,896 glass lored zone around each clinic’s entrance. for bullet resistant windows; covering condition- protecting Each zone was a of un- for the air “[m]eans $485 clinic, lines; ingress egress ing repairs for to the vandalized fettered from the $403 lines; $17,384 ensuring [appellants] conditioning upgrade that traf- for do not block air (2) $33,468 Madsen, system; fic.” 512 114 alarm for an U.S. at S.Ct. the fire zones, security by very descrip- guard during Republi- 2526. These their additional (3) Convention; $21,650 tions, damages they designed are can demonstrate (4) attack; very “in-your- by butyric limit no more than the evil of caused a acid costs by totalling approximate- program face” harassment shown the evidence at for an escort $204,585, $40,000. permit adequate ly trial and to to the These sums total access findings damages clinics. hold that We the court’s are amount of actual awarded adequate jury- and correct. conclusion, permanent appellants’
In we find that the In addition to evidence of con- cited, already appellants violates neither the federal nor duct Reiner testified points through responsible damages state constitution. for one were at Planned B/J three, Parenthood, points forty-two through required al- repairs OR for- which ty-four building. By way are overruled. exam- terations to the
ple, de- Reiner testified she heard Treshman hot conduct a Damages scribe over his line how to Actual butyric acid attack. Her clinic was then the thirty-two through In of error target just attack. Roof and such acid thirty-six, damages. OR attack the actual “permeated floor with a tiles were horrible They argue first the evidence is insufficient replaced. stench” and had to be testi- She support foreseeability. causation and bombs, of fire “[b]ecause fied that the fear They contend that it is not known who com protection.” tes- we needed some extra She mitted the acts of vandalism which necessi changes budding tified these to the repairs tated point to the clinic. In of error conduct, solely by appellants’ necessitated thirty-six, argues damages OR are exces along co-conspirators with that of their They sive. contend the other costs on which agents. She stated that “these four defen- damages were based are associated with in [against damages dants whom were awarded] measures, security prop creased and are not clearly conspired have to initiate additional erly recompensable damages. as items of through very costs actions and deeds In testimony an action for interference with and their own statements.” This relations, plaintiff may business recover was uncontradieted. damages ... “[s]ueh as are a natural and sought Planned Parenthood reimburse-
proximate consequence of the interference.”
out-of-pocket expenses it incurred
ment for
Gutierrez,
v.
Gonzalez
appellants’ illegal protest
as a result of
activi-
writ).
(Tex.App.
Antonio
no
For
— San
ty.
previously
The evidence
recited demon-
conspiracy,
civil
plaintiff
a Texas
is entitled
intentionally
strates that
acted
damages
“naturally
to recover all
flow
patients
keep
shut down the clinics and to
conspiracy.” Fenslage
from
civil
v. Daw
away.
Planned Par-
It was foreseeable that
kins,
(5th Cir.1980) (cit
629 F.2d
respond
enthood would be
forced
ing
Chapa,
Great Nat’l
v.
Ins. Co.
Life
appropri-
threats and acts of vandalism with
(Tex.1964)).
security
Appellants
ate
measures.
cite to no
following
Reiner testified to the
costs of
evidence in the record that Planned Parent-
alterations,
repairs,
safety
expenses
or unneces-
measures at hood’s
were excessive
changes
sary.
Judy
Planned Parenthood:
construction
testified these
costs
Reiner
$109,467,
$30,812
totalling
operation.
which included:
were essential to continued clinic
$5,030
security system;
in the record
for halón fire We conclude
the evidence
system; $42,650
factually
support
suppression
for a more so-
sufficient to
the actual
point thirty-eight
damages
jury.
OR contest
We overrule
awarded
sufficiency
sup
thirty-two through
the factual
of the evidence
points of error
thir-
OR’s
considering
porting punitive damages.
ty-six.
punitive
dam
propriety
an award
ages,
apply
must
the review enunciated
we
Damages
Punitive
Moriel,
Transportation
Ins. Co.
*23
(Tex.1994).
thirty-seven
points
of error
and
S.W.2d
Texas Su
thirty-nine,
punitive damages
assert
preme
requires
OR
the
that when
conduct
Court
we
jury
the
did
awarded are erroneous because
sufficiency
punitive
a
review of a
factual
damages
award,
actual
specific
not award
caused
damages
must detail the relevant
we
maliciously
in
appellants’
engaging in
why
conduct
in
as to
the evi
opinion
evidence
our
conspiracy to
Par
support
puni
a
interfere with Planned
supports or does not
the
dence
argue that a
light
enthood’s business. OR
reason
damages in
of the factors in Alamo
tive
proportionality
puni
Kraus,
actual
able
between
and
Nat.
v.
616 S.W.2d
Bank
(1)
required by
(Tex.1981).
cannot
as
damages
tive
be shown
Id. at
These factors are:
31.
(2)
Supreme
the Texas
Court.
wrong;
the
the character of
the nature of
(3)
involved;
degree
culpa
the
the
of
conduct
damages
Actual
were
on affirmative
based
(4)
bility
wrongdoer;
and
the situation
of the
Question
in
answers to either
No.
which
concerned;
the
and
parties
sensibilities of
jury
wrongfully
the
inter-
found
a
to which such conduct offends
extent
ability
provide
fered with the
of the clinics
Kraus,
justice
propriety.
public
of
sense
services, Question
proxi-
3 on
medical
or
No.
Exemplary damages
S.W.2d
910.
damages
conspiracy.
mate cause of
from the
actual
reasonably proportioned
must
be
Question
Ques-
In answer
on which
No.
Supreme
acknowl
damages.
Id. The
Court
jury
predicated,
No.
found
tion
8 was
Kraus, however,
edged
that
is no set
there
appellants engaged
conspiracy
in a
to inter-
punitive damages.
ratio
actual and
between
Question
fere with the clinics’ business.
No.
Id.
4, which
whether
acted with mal-
asked
OR
damages
of
The amount
actual
awarded
ice,
conspira-
was limited to malice as to
$204,585
punitive
and the total amount of
cy.
$1,010,000. Similar ratios are
damages were
Appellants correctly
general rule
cite the
of
It
routinely approved by courts
this state.
finding
damages in
there must be a
of actual
against
significant
is
that the amounts found
uphold
punitive damages.
tort to
an award of
substantially
defendants were
individual
Underwriters
Ins.
v.
See
Co.
Bellefonte
against
organizations.
It
less
than those
(Tex.1986).
Brown,
742, 745
704 S.W.2d
significant
jury
awarded
is also
Here,
damages
actual
awarded
$5,000
punitive damages, over and
additional
tort,
damages
punitive
but awarded
based
originally requested,
the amount
above
only
conspiracy.
on
America,
Don
against
and its leader
Rescue
Treshman, for
there was abundant
whom
object
charge
did
on the
OR
not
organizing
of involvement
evidence
damages
could result from the
basis
protests
encouraging acts of vandalism.
wrongful
conspiracy
interference with the
or
already
discussed shows
evidence
Questions
objection
no
clinics.
It raised
organizers
intentionally and with
acted
7-10,
damages questions,
Nos.
which
They
about the
unconcerned
malice.
were
predicated
affirmative answer
stop-
goal
consequences
long
so
as
finding
finding
conspiracy
either a
ping
was achieved. The evidence
abortion
Therefore,
wrongful
OR has
interference.
case,
as fire-
appellants’
in this
such
conduct
Cosgrove
regard.
in this
waived
error
threats,
attacks,
death
bombing,
acid
(Tex.1989)
Grimes,
665-66
highly
offensive
egregious
so
to be
(holding
error
fail-
defendant waived
abiding
law
citizens.
repugnant to
object
damages
ing to
to defective
submis-
supporting
sion);
conclude that the evidence
P. 274. We overrule We
Tex.R. Civ.
fac-
damages is
thirty-seven
thirty-nine.
jury’s
punitive
award of
error
$5,000
tually
thirty-
punitive damages,
point
sufficient. OR’s
of error
awarded
additional
eight
requested, against Tresh-
is overruled.
above the amount
man and Rescue America. Planned Parent-
point
forty,
challenge
of error
OR
requested
pre-judgment trial amend-
hood
punitive damages
the award of
because two
ment,
granted.
court
The trial
which the
jurors voting
punitive damages
for
did
incorporated
court
then
amended
join
damages.
in the verdict on actual
judgment.
amounts
its
OR contend
Only
jurors
ten
the twelve
voted to award
operated
surprise
amendment
to their
damages.
actual
prejudice, and that it was violative of Rule
provides
Rule 292
that the same ten mem
original jury
may
bers of an
render
twelve
requires
pleading
Rule
set
292;
a verdict. Tex.R. Civ. P.
Palmer Well
ting
give
forth a
notice
claim relief to
fair
Servs.,
Trucks, Inc.,
Inc. v. Mack
*24
of the claim involved and to state that
the
(Tex.1989).
575,
split
576
There is a
of au
damages sought
jurisdictional
are within the
thority
jurors
as to whether the same ten
limits of the court. Tex.R.
P. 47. A
liability in
phase
who found
the first
Civ.
pleading
gives
is sufficient when it
fair and
agree upon
punitive
trial must
the amount of
adequate
upon
notice of the facts
which the
damages in
phase
the second
of a bifurcated
Allen,
pleader
claim.
basis its
Roark v.
633
Corpus
trial.
Appeals
The
Christi Court of
(Tex.1982).
804,
purpose
S.W.2d
810
The
of
not,
they
finding
determined that
did
Rule
give
opposing party
Rule 47 is to
the
infor
apply.
292
does
Greater Houston Trans
prepare
him
mation sufficient to enable
to
Zrubeck,
portation
579,
v.Co.
850 S.W.2d
588
defense. Id.
1993,
(Tex.App. Corpus Christi
writ de
—
nied). Recently,
Ap
the Amarillo
Court
The trial court has no
to
discretion
peals
opposite
reached the
conclusion. See
deny
appellants
a trial amendment unless
Serv.,
Hyman
Gas,
Farm
Inc. v. Earth Oil &
surprise. Chapin
Chapin,
demonstrate
&
Inc.,
(Tex.App.
demanded the two Thus, they any complaint. have waived Judgment in Errors Tex.R.App. 52(a). Moreover, punitive P. complain point in OR of error damages verdict was unanimous. There forty-eight, complain point thirty- in and B/J fore, jurors the same ten that voted to one, failing trial in court erred to damages punitives. actual In award found “take-nothing” provisions include in favor of the event it error was for other two appellants against plaintiffs. some of the verdict, jurors join clearly to it is jury The did not find that violated point forty. harmless. overrule of error We rights Cunningham, Dr. of Dr. Richard Novick, point foriy-one, adjoining of error OR chal Howard or two businesses Parenthood, Martinez, lenge Planned Parenthood’s amendment of Planned Brian G. D.D.S., Co., damages request jury its after the verdict and O’Connor & Adkins d/b/a judgment. Antiques. court recited in but before rendition of Architectural however, ipation judgment, jury’s to them receive actual notice answers with who question plaintiff each as to each and interve- order.” P. 683. See Tex.R. Civ. authority cite Appellants Therefore, nor. no comply with the correction “take-nothing” trial court’s failure to include properly rule terms of the made. We provisions Unsupported is reversible error. find no error the correction the amend- points of are waived. See Trenholm v. error judgment ed error and over- this clerical (Tex.1983). Ratcliff, 646 S.W.2d We forty-nine fifty points rule and OR’s and forty-eight point of overrule OR error thirty-three. thirty-two points B/J’s thirty-one. point of error B/J point fifty-one and OR of error points forty-nine fifty In OR’s thirty-four, they argue trial point B/J thirty-three, thirty-two B/J’s judgment authority no to enter the court had appellants argue that court the trial errone judg pro nunc tunc correct amended Appellees ously judgment. its re amended Appellants’ ment. motion new trial was quested they the court correct two matters February overruled on 1995. The changes The two deemed “clerical errors.” judgment pro nunc tunc on court entered (1) the parenthetical were: to correct numer 15,1995 to include attachment of exhib June of punitive damages ical the award describing its zones. exhib buffer These $355,000 wording; to coincide with the original judgment, its referred to in the paragraph in change the enforcement *25 judgment. attached to that When were officer, “any by adding agent, amended, judgment exhibits was first servant, acting employee, attorney, person or inadvertently at omitted. Failure to defendant, in active with who has concert judgment tach a clerical the exhibits is actual of the OR notice order.” assert Therefore, error, judicial not a error. change this second is not a clerical error. judgment properly trial court could enter a court had OR concede transferee expiration plenary tunc of it pro nunc after plenary jurisdiction judgment by over the 329b(h). 316, power. Tex.R. Civ. P. We appellants’ timely virtue of filed motion for point fifty-one and overrule OR of error B/J trial, argue new but the court could not point thirty-four. of error “judicial a error” in correct the enforcement paragraph judgment. of the Costs are mistakes or
“Clerical errors” prevent judgment en omissions that as complain Appellants about the trial court’s reflecting judgment tered from as ren points of error allocation of costs in OR’s may dered. The trial court correct clerical fifty-two through fifty-four and B/J jurisdic plenary if it has mistakes even lost 23, through May thirty-five thirty-seven. On Koch, 584, tion. Andrews v. 702 S.W.2d 585 1995, court the district clerk ordered 329b(h). 316, (Tex.1986); Tex.R. Civ. P. reflecting “previously a new cost issue bill $15,057.75 adding “re- First, taxed costs” of injunctive order we note $15,087.82. additional costs” of judgment taxed provides section of the that: “de- directors, fendants, officers, agents, their party recov The successful shall attorneys, and representatives, employees, P. adversary. its er from costs or persons acting partici- Civ. in concert with Tex.R. all party” 131. A is one who obtains “successful with, enjoined pating through them are vindicating judgment competent a of a court following:....” from and restrained right. v. Pack a claim of Perez Baker civil Thus, of the lan- we find that addition same ers, 138, 143 (Tex.App.—Houston 694 S.W.2d guage paragraph was to the enforcement n.r.e.). 1985, Alloca ref'd [14th Dist.] writ necessary proper to correct clerical is a for the court’s addition, tion of costs matter note that Rule 683 error. we absent discretion and cannot be overturned contemplates being order bind- Robinson, officers, v. 592 agents, showing of abuse. Hill ing upon ser- “parties, 1979, 376, (Tex.Civ.App.—Tyler vants, attorneys, 378 upon S.W.2d employes, Donaho, n.r.e.); v. 559 persons partic- concert or writ ref'd Coleman those active
87 860, (Tex.Civ.App S.W.2d 864 thirty days elapsed cause more that had . —Houston dism’d). 1977, [14th Dist.] writ appellants’ since motion for new trial was costs, taxing overruled. Because as distin may adjudge A court costs costs, guished adjudication from the provided by other than as Rule 131 unless clerk, merely duty a ministerial of the good cause is shown. Dover Elevator Co. v. may injured upon error corrected be Servellon, 166, (Tex.App.— 876 S.W.2d 169 motion, party’s after the even case has been 1993, writ); Contemporary Dallas no Health disposed appeal, long request of on as the Palacios, Management, Inc. v. 832 S.W.2d is made before the mandate issues and the 743, (Tex.App [14th Dist.] . —Houston paid. Propeller, costs are Hartzell Inc. v. 1992, writ); no Tex.R. Civ. P. 141. In the Alexander, (Tex.Civ. 455, 517 S.W.2d explanation absence of an assessing costs writ). 1974, App. no findWe — Texarkana contrary rule, the trial court abuses its authority the trial court had to retax costs. Assoc., discretion. See Guerra v. Perez & 885 S.W.2d 533-34 (Tex.App Paso . —El point fifty-four point OR and B/J 1994, writ); no Dover Elevator Co. v. Servel thirty-seven, appellants contend the retaxed lon, (Tex.App S.W.2d . —Dallas costs are error. writ). 1991, no The Civil Practice and Remedies Code adjudge A motion to costs involves part: Provides in relevant an assessment the court as to who shall costs, judge may any A court pay include while motion to retax costs costs, judgment order or all question including the involves the of the amount of costs following: Reaugh assessed. Exploration v. McCollum Co., 322, 167 (1943); 140 Tex. (1) fees clerk and service fees due Stewart, City Ingleside county; (Tex.Civ.App. Corpus Christi writ — reporter fees of the court for the *26 n.r.e.). ref 'd A motion to retax costs is one original stenographic transcripts of to correct the ministerial act of the clerk of necessarily obtained for use in the Wood, tabulating the court in costs. Wood v. suit; 350, (1959). 807, 159 Tex. 320 S.W.2d 813 (3) masters, interpreters, guardians and point fifty-two In point OR and B/J appointed pursuant ad litem to these thirty-five, appellants complain that the court statutes; rules and state and
failed to against reduce the costs awarded (4) may such other costs and fees as be by proportionate them a amount for the two permitted by these rules and state plaintiffs against whom all defendants were statutes. eight successful and plaintiffs against whom 31.007(b) one of the defendants was successful. § Tex. Civ. Peac. Rem.Code Ann. & (Vernon are to authority requiring We cited no Supp.1996). trial court to proportionate make this reduc Appellants complain being about assessed Moreover, tion in costs. rather than retax (1) $6,030.53 following: the costs for the for costs, ing of proportionate this reduction is 10,000 citing by publication John and Jane adjudication costs, an allocation or of which nonsuited; Doe defendants who were later required was to be made within the trial (2) $5,308.80 $1,245 and transcript for the of plenary power. complaint court’s Where the (3) hearing temporary injunction; on the ruling is made of the of a in adjudging court transcripts depositions for of four $859.40 against costs wrong party, the error is (4) defendants; by $2,355 taken for rental of judgment inherent in the prop and must be (5) recorder; a television and video for $120 erly just assigned, alleged as other error. (6) copies videotapes and for $416 $118.77 Reaugh, 167 at S.W.2d 728. (7) residences; photos of the clinics and $3,627.50 point fifty-three OR eight and for service of citation de- B/J (8) point thirty-six, appellants argue by servers; court private process fendants and jurisdiction was subpoenas. without to retax costs be- for service of $382.35 88 fifty-four necessary fifty-two through and costs of error
All of these were B/J’s thirty-five through thirty-sev- the trial. of these of error to the conduct of Most expenditures, as rental of the television such en. recorder, specifically and were ordered video judgment affirm of the trial court. We trial The or
by the
court.
trial court also
appellees
provide appellants
with
dered
AMIDEI, Justice, dissenting.
copies
videotapes they
intended
respectfully
from
ma-
I
dissent
the court’s
also
court who
show at trial.
It was
the trial
jority opinion.
Doe
to be
ordered
unknown
defendants
portion
judgment awarding a
The
of the
they would
served because
be bound
permanent
injunction is void
should be
agents.
as
The affida
appellants’
for
more of the
reversed
rendered
one or
Manne,
counsel,
appellees’
vit from Neal
sub
as
reasons
follows:
these
stantiates that the
court ordered
they
reasonably and
expenses
finding
were
The
did not make a
1.
trial court
necessarily
prosecution
in the
incurred
a
of imminent harm.
there was
threat
addition,
Judy
support
from
finding
suit.
the affidavit
trial court must make such
Frey
the fees
reasonable
permanent injunction.
Reiner states that
v. DeCordova
(Tex.
Deposi
877,
necessary
prosecute
Estates,
suit.
881
Bend
632 S.W.2d
1982),
as
expenses
properly chargeable
affirmed, 647
App.
tion
are
Worth
— Fort
485,
(Tex.1983);
costs.
v.
Tex.
Briggs,
court
162
246
Isuani v. Manske-
Wallace
S.W.2d
(1961);
523,
602,
(Tex.App.
As
Sheffield,
348 S.W.2d
527
Shenandoah
805
605
S.W.2d
Inc.,
denied);
Properties,
v. J & K
v.
socs.
Green Un
—Beaumont
writ
Committee,
de
(Tex.App.
writ
Law
authorized Practice
— Dallas
writ)
nied).
Subpoena
recov
(Tex.App
and citation fees are
no
S.W.2d
. —Dallas
Shenandoah,
(a
injunc-
prevailing,
petitioner
erable
court costs.
successful
following
attached
S.W.2d
affidavits
tive relief must demonstrate
(1)
act;
appellees’
support
wrongful
grounds:
motion
determination
the existence
(3)
(2)
harm;
transcript
from the
the trial court that
imminent
the existence of
temporary injunction hearing
“necessari
irreparable injury;
existence
trial,”
ly
realistically
use at
in accordance
com
adequate
obtained for
absence
remedy.);
League
with Tex.
Interscholastic
plete
Univ.
Ann.
Peao. & Rem.Code
Civ.
(Tex.
31.007(b)(2).
Buchanan,
§
1993, writ);
App.
no
Hues v. War
— Austin
*27
retaxing
Attached
trial
order
court’s
(Tex.
Co.,
526, 529
ren
Petroleum
from the
original
are
itemization
costs
the
de
writ
App.
Dist]
[14th
— Houston
district clerk and an amended itemization
nied).
origi-
deleted from the
with numerous items
following
merely
motion,
The trial court
made the
According
appellees’
the
nal list.
of
by
conclusion law:
for
incurred
redacted items were
costs
this
appellees. From
plaintiffs
relief,
other than
defendants
“1. Absent
itemization,
appellees
have
appears
it
the
likely
engage
in
are
to continue
plaintiffs
that did
by
not been awarded costs
in
jury to be
tortious conduct found
the
also reflects
not recover. The court’s order
physicians’
of
clinics
violation
Plaintiff
and
appellees’
hearing
that a
conducted on
rights,
was
and constitutional
common law
of
We have no record
likely
plaintiff
motion
retax costs.
to cause
such conduct is
record,
hearing,
in the absence of a
irreparable
the
harm.”
physician
clinics
added)
court’s
cannot
the basis for the
we
determine
(Emphasis
to furnish a
appellants’
order.
It is
burden
language in
conclusion
There is no
such
error.
sufficient record to demonstrate
Tex
at
directly
implied
was
there
which
stated
RApp.
50(d).
P.
harm.
time of trial a threat of imminent
had
Republican
permit-
in
National Convention
find
of discretion
We
no abuse
picketing
as well
long
to re-
since been over
ting appellees,
prevailing parties,
There
subject
of this action.
activities
We overrule OR’s
cover
costs.
harm,
no threat of imminent
and the
2. Defendants’ conduct threatens the use
found
enjoyment
plaintiff
court
none. For this reason alone
of
clinics’ and
injunctive portion
judgment
rights;
should
physicians’ property
[in Point
be held void and reversed and rendered in
Error 26]
appellants.
favor of the
aggressive
harassing
3. Defendants’
question regarding
“imminent harm”
protesting and sidewalk
manner of
cannot be deemed because the
counseling
patients
of clinic
increases
jury question
submitted
and instruction no.
pro-
the risk attendant to the abortion
asking
appellees
to the court
whether the
cedure;
Error
[in
27]
Point of
subject
to imminent harm. The court
targeted
picketing
4. Defendants’
question
refused such
and instruction.
physicians’
plaintiff
homes threatens
irreparable
2. There was no
harm not
plaintiff physicians’
and interferes with
withstanding
finding
in the above stated
[;]
right
privacy
Error
[in
Point of
Injunctive
prop
conclusion no. 1.
is not
relief
28]
law,
adequate remedy
an
er when
i.e. a
5. Defendants have not abandoned their
530;
damages,
claim for
was available. Id. at
(1)
plaintiffs,
activities
re-
toward
but
I.S.D.,
Mitchison v. Houston
1.Defendants’
state the
acts
be
conduct threatens access
plaintiff
by
They
they
do not state facts which
could even
seeking
to
clinics
women
services;
important
abortion and other
be
This is
because the
medical
tested.
stating
enjoin twenty-
Point of Error
[in
25]
court was
reasons to
required un-
parties.
differing
fully the standard we have
eight
opera-
fies
different
The
including
required by
parties,
tive facts as to all such
der
Texas
as
Constitution”
located,
(Tex.1993).
against
sweep
Tucci,
militate
where
Ex Parte
displayed
permanent
for
treatment
court
such a restriction is
Tucci held: “Unless
injunction purposes. The
Court failed
of
proved to be the least restrictive means
appellants
pro-
state
conduct the
what
guarding against
irreparable
immi-
an
they did.
testing or what
impermissible infringe-
injury, it
an
nent
is
right
free
ment on our state constitutional
of
trial court must state these reasons
The
expression.” Id.
any
parties. The
request of the
without
required
findings
to make
of
Court was
Tucci,
Tucci,
Keith
and six other
Rev.
fact
of law this was a
and conclusions
as
protestors, had
held in con-
abortion
been
case. Rule
Texas Rules Civil Procedure
restraining
tempt
violating
temporary
for
specifically provides
findings may
be
proceed-
in
previously entered
these
order
requested
any
case tried “without
ings.
parties,
appel-
The
four of whom are
Therefore,
jury.”
for
the reasons
brought original habeas
appeal,
in this
lants
asking for find-
could not be waived for not
Supreme
Texas
corpus proceeding
sug-
ings
fact
of law as
of
and conclusions
they
asserting
had been confined
Court
majority.
gested
I,
protected under article
expression which is
Injunction
is unconsti-
The Permanent
(freedom
8 of the Texas Constitution
section
tutionally
The Permanent
In-
overbroad.
restraining
expression).
temporary
The
junction
provides in
portion
judgment
order,
part,
demonstrating
within
barred
prohibited
E
from
Section
are
any
feet
of the nine
hundred
one
“demonstrating”
described zones that
within
clinics,
The
appellees
appeal.
in this
relators
belonging
appel-
nine
circumvent
facilities
any
attack
of the other
Tucci did not
“Demonstrating” was
as “oral
lees.
defined
restraining orders but chal-
provisions of the
expression
displays,
that publicly
or other
foot
lenged only
one-hundred
limitation
manifests,
expresses
feelings or
one’s
The
of re-
as unconstitutional.
confinement
opinions
expressly
...
includes
‘sidewalk
having
premised solely
lators
”
counseling.’
zones also extend from
These
portions
foot
disregarded
of the one-hundred
any adjoining
edges
properties
of the
into
provisions of
re-
other
limitation. The
streets,
public
approximately to the center
pro-
straining
clearly directed to
orders were
adjoining
respective
line
each
streets
specific injuries alleged
tecting against the
are shown on
the facilities.
zones
women,
climes and businesses
plats
facility
of each
attached
exhibits
by injunctive relief that barred:
access
judgment.
fa-
The Planned Parenthood
on,
invading,
[tjrespassing
physically
en-
corridors,
cility
protected
has
fifteen
also
two
consent,
sitting
damaging,
tering without
wide,
parking
extending
feet
from two
lots
in,
obstructing ac-
blocking, impeding or
facility.
public
across the
streets
any
to, ingress
egress
into or
from
cess
(Women’s
thirty-two
Med-
widest zone
feet
facility
of the Planned Parenthood1
part
Houston)
ical
and the nar-
Center
N.W.
exits,
...,
including the entrances
(AAA
zone is
feet
Concerned
rowest
fifteen
...,
the clinic’s or
parking lots
Center).
I
Similarly,
Women’s
Section of
driveways.
parking lots’ entrances and
judgment
pertaining to
provides restrictions
restraining
Additionally,
temporary
or-
physician appellees prohibiting
the five
provisions
independent
patrolling, or
contained four
“congregating, picketing,
dem-
ders
against
and harassment
onstrating”
guard
zones
intimidation
within thirteen foot
extend-
*29
ing
property
into
respective
prohibited:
from their
lines
that
adjoining
streets.
Demonstrating
twenty-five
feet
within
leaving
seeking
or
any person
access to
any
of
not show
evidence
The record does
lots,
clinic,
parking
or intervenors’
preserve
its
that “such measures are essential
lots,
any way
inor
access,
parking
that each satis-
businesses or
right
of clinic
applicable to the other clinics.
provisions
included in the
order
1. Near identical
impeding
person’s
bit, impede,
such
entrance to or exit
or obstruct or interfere
clinic,
businesses;
parking
ingress
from the
lots or
with the free and unmolested
(either
egress
persons
pedestri-
of
Physically abusing, grabbing, intimidating,
vehicular)
an or
to and
facili-
from the
harassing,
touching, pushing, shoving, or
parking
ties and
lots and the streets
crowding persons entering
leaving,
or
adjacent
and sidewalks
to the facilities
at,
working
using any
or
services at
parking
lots of
nine
[the
clinics].
Planned Parenthood’s above-referenced fa-
businesses;
cility or at
D.Touching,
physically abusing,
the intervenors’
intimi-
dating,
harassing any
or
individual at-
Harassing, intimidating
physically
or
abus-
tempting to enter or exit the facilities
any doctor,
ing
health
professional,
care
or
parking
or
lots of [the
clinics].
nine
member, employee
other staff
or volunteer
provision
who assists
of
services
E,
judgment,
Section
as written in the
facility;
...
concerning “demonstrating” violates Article
(whether
Making any
I,
Constitution,
sound or noise
Section 8 of the Texas
as set
loudspeaker,
amplifica-
mechanical
opinion. However,
sound
out in this
the above
otherwise)
tion device or
that
through
so loud restrictions A
D would be the least
disturbs, injures,
that it
endangers
or
protect against
restrictive means to
in-
safety
any
health or
patient
or
complained
staff
timidation and harassment
of.
person
facility.
...
through
A
D
Sections
are the least restric-
preserve
tive means that are essential to
ease,
In this
in an
comply
effort to
with
right of clinic access or if there is evidence to
Tucci, the trial court conducted an evidentia-
prove that demonstration-free zones would
ry hearing
injunctive
on the issues of
relief.
protect
be the least restrictive means to
plats
proposed
of the
geographi-
limited
right
woman’s
to have an abortion as set out
cal ban were introduced into evidence and
in Tucci at 7.
attached
judgment.
as exhibits to the
How-
ever, there was
reasons,
no evidence introduced at
For the same
the restrictions in
hearing
during
this
or
H,
through
pertain
Sections F
geographical
these
bans were the least
physicians specifically
re-
residences of the
pro-
strictive means available to
unimped-
ensure
protect
vide for
relief that would
guard
ed access to
against
clinics and
physicians against
intimi-
the conduct com-
dation and harassment.
Tucci
plained
mandates
of. These restrictions are:
justified
that such
restrictions must be
on,
in,
.
Trespassing
sitting
blocking
F.
or
proper evidentiary showing that such mea-
impeding plaintiff physicians,
their
preserve
sures are essential to
rights
family
guests
members and their
or
clinic access and that such restrictions are
to, ingress
from
invitees
access
into or
the least intrusive as to individual liberties.
egress
any part
plaintiff
from
physi-
Tucci,
A. upon without consent or located; dences are damaging any part premises, parking Harassing, threatening, assaulting, facilities lots of nine H. [the or physically abusing plaintiff physicians, clinics]. members, family guests or invi- block, Blocking B. or attempting to barri- tees. cade, inor other manner obstruct to, premises the entrances or the However, judgment pro- I of the Section [the nine clinics]. viding for the 13 foot zone is likewise void Inhibiting, impeding, obstructing C. or under Tucci as there was no evidence intro- with,
interfering attempting hearing to inhi- duced at the trial or at the on the *30 92 conspiracy requested a of an actionable civil as prove that would that such zone objection to were the pre- be the least means has merit. Omitted over
would
restrictive
(1)
complained
The
one or more overt
vent the harm
of.
United
essential elements:
(2)
acts,
damages resulting from
Supreme
approved prior
has
and
the
States
Court
Massey
against
speech. Frisby
conspiracy.
Compa
v.
v. Armco Steel
restraints
free
932,
(Tex.1983);
Schultz,
474,
2495,
ny,
Metzger
U.S.
108
101
652 S.W.2d
934
487
S.Ct.
Sebek,
(1988).
Frisby,
pro-
(Tex.App
892
20
L.Ed.2d 420
abortion
S.W.2d
. —Houston
denied).
enjoin
1994,
seeking
essential
brought
[1st Dist]
suit
to
the
writ
The
testors
municipal
pro-
enforcement of a
ordinance
elements are:
hibiting picketing
or
before
about
resi-
in
plaintiff
conspiracy
The
a civil
action
dwelling
or
The
dence
of
individual.
(1)
following
must
elements:
two
show
not
that
ordinance did
ban
Court found
(2)
object
an
to be ac
persons;
or more
areas,
only
in
but
picketing
all
residential
(3) meeting
complished;
a
of the minds on
prohibited
taking place
picketing
focused
(4)
action;
object or course of
one or
solely
particular
The
front of
residences.
unlawful,
acts; and
dam
more
overt
government
a significant
ordinance served
Massey,
ages
proximate
result.
privacy.
protecting
interest of
residential
934;
at
v. Portland
S.W.2d
Bernstein
Sav.
important aspect
privacy
An
such
is the
of
(Tex.
Ass’n,
694, 705
and Loan
protection
unwilling
of
listeners within their
denied)
App. Corpus Christi
writ
—
objectionable
from the intrusion of
homes
“unlawful,
The
overt acts” must be acts
is
speech.
unwanted
The ordinance
“nar-
conspiracy. Massey,
furtherance of
rowly
governmental
to
that
tailored”
serve
Further, I and remand the would reverse portion (including punitive)
damages of the following
judgment for the reasons: appellants’ complaint the trial charge refused to include
court essential elements
complete definition