LaCoure v. LaCoure

• Decision Date: 27 November 1991
• Docket Number: No. 08-91-00134-CV,08-91-00134-CV
• Citation: 820 S.W.2d 228
• Parties: Robert D. LaCOURE, Sr., Appellant, v. Kim Ann LaCOURE, Appellee.
• Court: Texas Court of Appeals

Page 228

820 S.W.2d 228

Robert D. LaCOURE, Sr., Appellant, v. Kim Ann LaCOURE, Appellee.

No. 08-91-00134-CV.

Court of Appeals of Texas El Paso.

Nov. 27, 1991.

Rehearing Overruled Jan. 2, 1992.

John F. Nichols, Piro*Nichols*Lilly, Houston, Ann Crawford McClure, El Paso, Earle S. Lilly, Piro & Lilly, P.C., Houston, for appellant.

Ben A. Baring, Jr., Paul J. McConnell, III, Susan J. Taylor, DeLange, Hudspeth & Pitman, Houston, for appellee.

Before OSBORN, C.J., and FULLER and KOEHLER, JJ.

OPINION

KOEHLER, Justice.

In a suit for damages for intentional infliction of emotional distress and mental anguish arising out of an alleged wrongful foreclosure and eviction from residential property, the court, based on the jury's answers to the questions submitted to it, gave judgment to the Plaintiff/Appellee for $136,000 actual damages and $300,000 exemplary damages. Defendant/Appellant brings eight points of error claiming among other things, factual and legal insufficiency of the evidence to support the jury's findings, erroneous exclusion of evidence, excessiveness of the exemplary damage award, remarks and questions by the court constituting a comment on the weight of the evidence and improper award of prejudgment interest. We affirm.

Robert D. LaCoure, Sr. (Robert), Appellant, is the former father-in-law of the Appellee, Kim Ann LaCoure (Kim). She had married Robert D. LaCoure, Jr. (Bobby) in October 1980 and was divorced from him on May 14, 1985, the decree naming them as joint managing conservators of their only child, Robert D. LaCoure III. Prior to this marriage, in March 1980, Robert had arranged to purchase a house located at 14015 Woodforest in Houston for $65,000. He sent Bobby to the closing on April 9 with a cashier's check for the balance of the purchase price. A general warranty deed conveyed the property to Robert D. LaCoure, Jr. and a title insurance policy was issued to him, the policy stating that the property was not subject to any liens or any instruments creating or evidencing such liens. Shortly after the closing, Bobby moved into the house and Kim moved in with him sometime later. Robert paid for remodeling of the house and adding a swimming pool and also paid the taxes and insurance on the house. In the divorce settlement and decree, it was agreed and ordered that Kim was to have sole possession of the house "as long as she remains unmarried, does not have any live in companions, until the minor child attains the age of eighteen (18), or as long as Petitioner [Bobby] is able to pay the insurance and taxes on said property; ...." Upon the occurrence of any of those events, the house was to be sold and the net proceeds split 55 percent to Bobby and 45 percent to Kim.

A note and deed of trust against the property, signed by Bobby in favor of Robert, dated April 9, 1980, was filed for record in the deed records of Harris County on July 12, 1985, nearly two months after the date of the divorce. Based on those documents and Bobby's default in making note payments, Robert foreclosed on the property and took a trustee's deed on March 4, 1986. Thereafter, in May 1988, Robert commenced a forcible detainer suit against Kim and had her evicted from the property, ostensibly on the grounds that she had a live-in boyfriend. Kim commenced this suit against Robert in June 1988, seeking damages for intentional infliction of emotional distress caused by the wrongful foreclosure and eviction. At the conclusion of the trial, the jury found that Robert intended to make a gift of the property to Bobby in April 1980 and that Kim acquired her interest in the property at time of the divorce without notice that Robert was claiming an interest. The jury then found that Robert's acts amounted to intentional or reckless, extreme and outrageous conduct proximately causing Kim to suffer severe emotional distress and resulting in the actual and exemplary damages found by it.

Although Robert claimed that Bobby improperly inserted "Jr." after his name as grantee on the deed at the time of closing, he does not contest the jury's finding that he intended to make a gift of the property to Bobby and in fact, stipulated that if the jury so found, then the foreclosure and eviction would be wrongful without the need for a jury issue and finding on that subject.

In his first point of error, Robert asserts no evidence and insufficient evidence to support the jury's finding of intentional infliction of emotional distress.

When presented with a "no evidence" challenge, the appellate court should consider only the evidence and reasonable inferences drawn therefrom which, when viewed in their most favorable light, support the jury verdict or court finding. All evidence and inferences to the contrary are to be disregarded. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987); Alm v. Aluminum Company of America, 717 S.W.2d 588, 593 (Tex.1986). If there is more than a scintilla of evidence to support the questioned finding, the no evidence point fails. Stafford, 726 S.W.2d at 16.

When a factual sufficiency challenge is brought, the court must first examine all of the evidence, Lofton v. Texas Brine Corporation, 720 S.W.2d 804, 805 (Tex.1986); and after considering and weighing all of the evidence, the court may set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). Since an appellate court is not a fact finder, it may not pass upon the credibility of the witnesses or substitute its judgment for that of the trier of fact, even if the evidence would support a different result. Clancy v. Zale Corporation, 705 S.W.2d 820, 826 (Tex.App.--Dallas 1986, writ ref'd n.r.e.).

The four elements of the tort of intentional infliction of emotional distress (correctly set forth in jury question number three) are: (1) the defendant acted intentionally or recklessly; (2) such conduct was extreme and outrageous; (3) the conduct of the defendant caused the plaintiff mental distress; and (4) such distress was severe. Bushell v. Dean, 781 S.W.2d 652, 657 (Tex.App.--Austin 1989), rev'd on other grounds, 803 S.W.2d 711 (Tex.1991). Robert contends that Kim failed to establish these four elements by the evidence in the case.

The first element, intentional or reckless conduct, requires a showing either that Robert desired to inflict severe emotional distress on Kim or that his conduct was done without regard for Kim's rights or well-being. Intentional or reckless conduct requires a showing that the actor desires to cause the consequences of his act. In this connection, Robert admitted that he intended to cause the foreclosure and eviction, but argues that he did not specifically intend to cause Kim's emotional distress. Intent may be inferred from the circumstances and the conduct of the actor, not just from the overt expressions of intent by the actor.

Testimony from his secretary showed that Robert was upset about the divorce decree awarding Kim part of the property. The evidence conclusively shows that after the divorce, Robert knowingly allowed or caused the execution by his son, Bobby, of the note and deed of trust and the backdating of those documents to April 9, 1980, the property closing date. He then brought the foreclosure on the strength of those documents, and later the eviction of Kim because he thought, from the cars parked around the house, that she was allowing her boyfriend or friends to stay there. The evidence further shows that not only did Robert evict Kim and his grandson without giving her any payment for her interest in the property based on the divorce settlement, but he brought a counterclaim against her in the instant case for attorney's fees and for damages to and maintenance of the property even though he knew that Bobby was responsible for the latter under the terms of the divorce decree. These facts alone, particularly the falsifying of the documents, are sufficient evidence from which the jury could find the necessary intentional or reckless conduct.

The second element, extreme and outrageous conduct, is also supported by the evidence. Robert's only argument here is that this case is not as extreme as other cases, citing for example Kramer v. Downey, 680 S.W.2d 524 (Tex.App.--Dallas 1984, writ ref'd n.r.e.), in which a woman followed her ex-lover, a married man, daily for several years. However, each intentional infliction of mental distress case must be decided on its own facts, as interpreted and weighed by the fact finder. In this case, in addition to the foregoing evidence of Robert's conduct, there was testimony about a phone call Kim received in which the caller told her if she testified in a court proceeding involving Robert, she would be evicted from the house sooner. There was also some testimony suggesting that Robert's nephew, Joe McNeely, a boxer with whose reputation Kim was somewhat familiar, may have been placed in a position after the taking of some depositions to intimidate her into dropping this lawsuit. She received phone calls from her ex-husband and others trying to make her go away. We conclude that the evidence was legally and factually sufficient for the jury to have found that the distress inflicted was so severe that no reasonable person could be expected to endure it without suffering severe mental distress.

The third element, proximate cause, is also supported by the evidence. Kim presented evidence that during the period when she was threatened with eviction and was actually evicted, she would get up at night and cry, she was irritable and emotional, she had difficulty eating and sleeping, she was worried about her son, was nervous and afraid of Robert, and felt that preventing the eviction was hopeless. While there was some evidence that factors other than Robert's conduct may have caused or contributed to Kim's mental distress, the jury was presented with that evidence...