Livingston v. Livingston

• Decision Date: 21 September 2017
• Docket Number: NO. 01-16-00127-CV,01-16-00127-CV
• Citation: 537 S.W.3d 578
• Parties: Robert C. LIVINGSTON, Appellant v. Catherine LIVINGSTON, Appellee
• Court: Texas Court of Appeals

537 S.W.3d 578

Robert C. LIVINGSTON, Appellant
v.
Catherine LIVINGSTON, Appellee

NO. 01-16-00127-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued September 21, 2017

Phillip R. Livingston, PHILLIP R. LIVINGSTON, PC, 9668 Westheimer Rd., #200-109, Houston, Texas 77063, Scott Williams, LAW OFFICE OF SCOTT WILLIAMS, 7715 Meadowbriar Lane, Houston, Texas 77063, for Appellant.

Robert Teir, Robert Teir, PLLC, 845 FM 517 W, Suite 200, Dickinson, Texas 77539-2903, Houston, Texas 77063, for Appellee.

Panel consists of Justices Jennings, Higley, and Massengale.

Laura Carter Higley, Justice

This suit arises from the acrimonious relationship between Catherine Livingston and her step-son, Robert Livingston. Catherine sued Robert for assault, false imprisonment, and infliction of emotional distress. A jury found that Robert had not assaulted or falsely imprisoned Catherine, but it did find that Robert had intentionally inflicted severe emotional distress on Catherine and that Robert had acted with malice. Catherine recovered no actual damages; however, the trial court rendered a permanent injunction against Robert, enjoining him from approaching Catherine within 1,000 feet, from knowingly entering any property where Catherine was present, and from contacting her.

Robert appeals the permanent injunction. In four issues, he contends that the pleadings, the jury's findings, and the evidence do not support the permanent injunction, and he asserts that the injunction does not comply with Rule of Civil Procedure 683. Because Robert has not shown that the trial court abused its discretion in rendering the injunctive relief, and because Rule 683 does not apply to the permanent injunction, we affirm.

537 S.W.3d 583

Background

In June 2015, eighty-year-old Stuart Livingston resided in an assisted living facility. He had been diagnosed with dementia and could no longer care for himself. His wife of 29 years, 76-year-old Catherine, also could not care for him, but Catherine visited Stuart at the assisted living facility.

Stuart had three adult sons from his first marriage: Stuart, Jr., Phillip, and Robert. Years before, Stuart had signed a medical power of attorney, giving Phillip the authority to make health care decisions for him. Stuart had given Robert secondary power of attorney.

Robert and Phillip agreed that Robert would take over the duty of making Stuart's health care decisions. Robert would later testify that, because he had concerns about Catherine interfering in Stuart's healthcare, he went to speak to his father about her interference on June 13, 2015. When Robert arrived at the assisted living facility that day, Catherine was there visiting Stuart.

It is at this point that Robert's and Catherine's stories diverge regarding what happened that day.

According to Robert, when he entered his father's room, Stuart was lying on the bed, and Catherine was sitting in a chair. Robert told Stuart that Catherine's actions at the assisted living facility needed to change. Robert claimed that Catherine then grabbed her mobile phone, got up, walked over to Stuart, and began "yelling and screaming and waving her hand." She then laid on top of Stuart. While lying down, Catherine called 9-1-1 on her mobile phone. Catherine then got up from the bed and showed the phone to Robert. The phone's screen indicated that Catherine had called the Houston Police Department. Catherine asked him, "Are you scared now?" Robert would later testify that Catherine then "ran from the room yelling and screaming, ‘911.’ "

Catherine told a different version of the events. In her trial testimony, she claimed that Robert "stormed into [Stuart's] room." He waved a key, stating, "I have dad's key, ha ha ha." According to Catherine, Robert was "shouting at the top of his voice, he was red in the face and waving his arms." Robert used "a lot of cuss words, and said things are going to change around here."

Catherine claimed that, when she tried to leave the room, Robert blocked the door. Catherine later testified, "When I got very close to the door he shoved me against the wall or the door frame and I lost my balance, my balance wasn't very good, and [I] fell to the floor." Catherine claimed that Robert then stood over her and continued to yell at her.

Catherine said that she then left the room and asked someone to call 9-1-1. The police did not come to the assisted living facility, but Catherine contacted the authorities later that day. Although the police investigated the matter, no criminal charges were filed against Robert.

Four days later, Catherine sued Robert for assault and false imprisonment based on the June 13 incident at the assisted living facility. Catherine sought actual and exemplary damages from Robert. She also requested a preliminary and permanent injunction against Robert, requesting, inter alia, that he be enjoined from approaching her within 1,000 feet and from knowingly entering property where she was present. Soon thereafter, Catherine filed an application for temporary injunction, reiterating her request for injunctive relief.

Catherine later filed a supplement to her application for temporary injunction. In

537 S.W.3d 584

the application, Catherine alleged that, on August 24, 2015, Robert had called her on her mobile phone and made the following threat: "I'm going to hurt you. I am going to f* * *ing kill you. I'm going to kill you and your mother* * *k* * son." Based on these additional allegations, Catherine reiterated her request for both temporary and permanent injunctive relief.

The case was tried to a jury in November 2015. The record reflects that Stuart died the second day of trial.

Catherine and Robert each testified at trial, giving his and her version of what had occurred in Stuart's room on June 13, 2015. Catherine asserted that Robert had shoved her to the floor, and Robert vehemently denied that he had done so.

Catherine also testified about the phone call that she received from Robert on August 24, 2015. She testified that, on that date, she was in a rehabilitation facility recovering from hip replacement surgery. Catherine stated that, when she answered her mobile phone, Robert began yelling and swearing at her. She said that Robert was "furious" and that he was "very, very angry." According to Catherine, Robert sounded "out of control." Catherine testified that Robert called her a "mother* * *er" and threatened her, expressly telling her that "he had had it, and he was going to hurt me, and he was going to kill me." Catherine further testified that Robert had threatened to kill her "motherf* * *ing son." She stated that Robert had learned that her son had been visiting Stuart, and Robert was unhappy about that.

Catherine also testified that Ida Glover, a personal care attendant, was with her in her room when Robert called. She stated that Glover had taken the phone when she saw how upset Catherine was by the call. After Glover took the phone, Catherine said that Robert continued to yell, but then he hung up when he heard Glover's voice.

Glover also testified at trial. She stated that she was sitting next to Catherine when a man, who Catherine later said was her step-son, called on Catherine's mobile phone. Glover stated that Catherine immediately became upset when she answered the call. Glover could hear that the caller was yelling. Seeing how upset the call made Catherine, Glover took the phone. When she put it to her ear, she heard the man say, "Keep your mother* * *ing son away from my god* *mn father." Glover stated that she then ended the call.

Robert did not testify regarding the August 2015 phone call.¹ Nor did he offer any evidence to contradict Catherine's or Glover's testimony regarding the call.

The jury was asked to determine Robert's liability on three causes of action: assault, false imprisonment, and intentional infliction of emotional distress.² The jury

537 S.W.3d 585

found that Robert had not assaulted or falsely imprisoned Catherine; but the jury did find that Robert had intentionally inflicted severe emotional distress on Catherine. Nonetheless, the jury found that Catherine had suffered zero dollars in actual damages. The jury, however, answered "yes" to the following question: "Do you find by clear and convincing evidence that the harm to Catherine Livingston resulted from malice?" Based on that finding, the jury determined that Catherine was entitled to $2,500 in exemplary damages.

Post-trial, Robert filed a motion to disregard the jury's verdict and to enter judgment. He requested the trial court to render a take-nothing judgment against Catherine based on the jury's negative findings on Catherine's assault and false imprisonment claims and based on its zero-damages finding.

Robert requested the trial court to disregard the jury's affirmative finding with regard to Catherine's intentional infliction of emotional distress claim. He pointed out that intentional infliction of emotional distress is a gap-filler tort that applies only to a claim for which a plaintiff has no other cause of action. Robert averred that Catherine was pursuing recovery based only on...