Donnel v. Lara

• Decision Date: 27 November 1985
• Docket Number: No. 04-84-00306-CV,04-84-00306-CV
• Citation: 703 S.W.2d 257
• Parties: Yolanda DONNEL, Appellant, v. Joseph LARA, et al., Appellees.
• Court: Texas Court of Appeals

Page 257

703 S.W.2d 257

Yolanda DONNEL, Appellant, v. Joseph LARA, et al., Appellees.

No. 04-84-00306-CV.

Court of Appeals of Texas,

San Antonio.

Nov. 27, 1985.

Rehearing Denied Dec. 27, 1985.

Writ Filed Jan. 23, 1986.

James R. Bass, Charles E. Hardy, San Antonio, for appellant.

Douglas S. Daniel, San Antonio, for appellees.

Before ESQUIVEL, CANTU and DIAL, JJ.

OPINION

CANTU, Justice.

Joseph Lara and his wife, Diana R. Lara, acting individually and as next friend for Daniel R. Lara and Michael J. Lara, minors, brought suit against Yolanda Donnel alleging that on several occasions Donnel, appellant herein, had willfully and without consent and knowledge of the plaintiffs made repeated intrusions into their (plaintiffs'/appellees') privacy by placing repeated phone calls to their residence at unreasonable hours and in such manner as would highly offend a reasonable person of ordinary sensibilities.

Appellees claimed a loss of privacy, loss of the exclusive use of their telephones, loss of sleep and rest and other related misfortunes. Also claimed were monetary losses.

In addition to actual losses, appellees sought to recover exemplary damages for the alleged willful and malicious conduct of appellant. Injunctive relief was also sought.

The cause was tried to a jury which answered special issues favorable to appellees. Based upon the jury findings, the trial court entered its judgment awarding each adult appellee actual damages of one dollar ($1.00) each and combined exemplary damages of $4,500.00. The trial court further granted a permanent injunction against appellant.

On appeal appellant complains of trial court error in numerous particulars, viz:

(1) in failing to direct a verdict in her favor

(2) in submitting special issues to the jury on liability

(3) in failing to disregard jury findings

(4) in rendering judgment on the jury's verdict

(5) in failing to grant her motion for judgment non obstante veredicto

Appellant further complains that the trial court should not have rendered judgment for exemplary damages in a ratio of 2250 to 1 and in not ordering a remittitur.

With the exception of the last two contentions, all of appellant's contentions are predicated upon the premise that the cause of action pleaded by appellees does not exist in Texas. ¹

Appellant's argument avers that a telephone call cannot be the basis of a cause of action based on the tort of invasion of privacy. Appellant cites to us the cases of Gill v. Snow, 644 S.W.2d 222 (Tex.App.--Fort Worth 1982, no writ) and Gonzales v. Southwestern Bell Telephone Company, 555 S.W.2d 219 (Tex.Civ.App.--Corpus Christi 1977, no writ).

Gonzales v. Southwestern Bell Telephone Co., supra, was an action in the form of trespass upon property of another. In recognizing that invasion of privacy exists in what may be labeled four separate categories, the appellate court simply held that the trial court erred in entering a judgment non obstante veredicto because the evidence raised a factual issue as to whether the plaintiffs had brought their case within one of the enumerated categories. Gonzales does not hold that invasion of privacy cannot occur as a result of telephone harassment.

Gill v. Snow, supra, is another invasion of privacy case arising from the act of printing an advertisement in a community newspaper which allegedly placed the plaintiff in a false light before the public. This case also recognizes four separate and distinct categories encompassing the tort of invasion of privacy. See RESTATEMENT (SECOND) OF TORTS, § 652A (1977). ² In reversing the judgment entered upon jury findings the appellate court concluded that there was no evidence to support an award of damages for invasion of privacy under any of the theories pleaded by the plaintiff.

Appellant grasps upon the following language appearing in both Gonzales and Gill:

This type of invasion of privacy [intrusion upon the seclusion, solitude and private affairs of an individual] is generally associated with either a physical invasion of a person's property or by eavesdropping on another's conversation with the aid of wiretaps, microphones or spying.

It is argued that telephone calls are not within the included classes of intrusions. We do not read the quoted language as purporting to be all inclusive. To the contrary, the language recognizes that the enumerated intrusions comprise the more common acts constituting an invasion of privacy. We reject appellant's argument that telephone harassment cannot, as a matter of law, constitute the tort of invasion of privacy. We further reject appellant's contention that appellees have failed to allege a cause of action simply because the allegations contained in their petition do not fall within the confines of the more familiar fact situations involving the tort of intrusion. ³ Simply because no reported Texas case exists which has recognized the type of intrusion pleaded by appellees as an actionable tort for invasion of privacy is no reason to reject it outright. Other jurisdictions have had occasion to consider similar pleadings as those now before us and have found no reason to reject them as not alleging a cause of action. See i.e., Housh v. Peth, 165 Ohio St. 35, 133 N.E.2d 340 (1956) (creditor collection telephone harassment); Carey v. Statewide Finance Co., 3 Conn.Cir. 716, 223 A.2d 405 (Conn.Cir.Ct.1966) (creditor collection telephone harassment).

We overrule appellant's first six points of error.

The next three points of error complain of the awarding of exemplary damages in the absence of actual damages. Argument is made that the award of two dollars to appellees as actual damages constitutes only nominal damages and that nominal damages cannot support the award of exemplary or punitive damages.

Special Issues Nos. 6 and 8 together with the jury's answers read:

SPECIAL ISSUE NO. 6

If you find by a preponderance of the evidence that on occasions in the past telephone calls were repeatedly made to Plaintiff's residence at unreasonable hours, and you further find by a preponderance of the evidence that some of the telephone calls were made by Yolanda Donnel, and you further find by a preponderance of the evidence that Joseph Lara suffered actual damages as a proximate result of Defendant's conduct, what sum of money, if any, do you find by a preponderance of the evidence that Plaintiff Joseph Lara should be awarded against Yolanda Donnel to compensate him for the loss of his privacy?

Answer in dollars and cents, if any.

ANSWER; $1.00

SPECIAL ISSUE NO. 8

If you find by a preponderance of the evidence that on occasions in the past telephone calls were repeatedly made to Plaintiff's residence at unreasonable hours, and you further find by a preponderance of the evidence that some of the telephone calls were made by Yolanda Donnel, and you further find by a preponderance of the evidence that Diana R. Lara suffered actual damages as a proximate result of Defendant's conduct, what sum of money, if any, do you find by a preponderance of the evidence that Plaintiff Diana R. Lara should be awarded against Yolanda Donnel to compensate her for the loss of her privacy?

Answer in dollars and cents, if any.

ANSWER: $1.00

The judgment in pertinent part recites:

It is, therefore, Ordered, Adjudged and Decreed by the Court that Plaintiffs Joseph Lara and Diana R. Lara, Individually, each have and recover from Defendant, Yolanda Donnel, actual damages in the amount of One Dollar and No/100 (1.00) and jointly recover exemplary damages in the amount of Four Thousand Five Hundred Dollars and no/100 ($4,500.00).

Therefore, the judgment which tracks the jury findings awards a compensatory amount representing actual monetary losses to appellees.

It has been said that nominal damages are damages in name only and not in fact, and are allowed not as an equivalent for a wrong inflicted, but simply in recognition of the existence of a technical injury. Thus it follows that the violation of a legal right gives rise to a presumption of damage even if actual or compensatory damages are not shown. Fouraker v. Kidd Springs Boating & Fishing Club, 65 S.W.2d 796 (Tex.Civ.App.--Dallas 1933, no writ); Flouroy v. Story, 37 S.W.2d 272 (Tex.Civ.App.--Fort Worth 1930, no writ).

An award of nominal damages is not sufficient to sustain a recovery of exemplary damages where no actual damages can be shown to have been incurred. Harrell v. F.H. Vahlsing, Inc., 248 S.W.2d 762 (Tex.Civ.App.--San Antonio 1952, writ ref'd n.r.e.).

There is no specific sum that can be defined as nominal damages. However, one dollar is the usual sum allowed. Press v. Davis, 118 S.W.2d 982 (Tex.Civ.App.--Fort Worth 1938), modified on other grounds, 135 Tex. 60, 140 S.W.2d 438 (1940).

The testimony of appellees discloses that actual damages incurred by them exceeded fifty dollars. The award of two dollars is within the proof adduced and does not represent damages in name only or damages in an arbitrary amount awarded in recognition of the existence of a technical injury.

Appellees' petition alleged that actual damages suffered by them as a result of appellant's wrongful acts exceeded the minimum jurisdictional limits of the court and prayed for recovery accordingly. Appellant did not except to the allegation as not pleading an exact amount nor did she object to the evidence offered in support of the allegations which supports the amount found by the jury. The amount prayed for was more than the total sum found by the jury. There being no pleading for any specific amount the jury was authorized to find such amount as...