Lozano v. Lozano, 14-96-01555-CV

• Court: Texas Court of Appeals
• Writing for the Court: JOHN S. ANDERSON; LEE
• Citation: Lozano v. Lozano, 983 S.W.2d 787 (Tex. App. 1998)
• Decision Date: 19 November 1998
• Docket Number: No. 14-96-01555-CV,14-96-01555-CV
• Parties: Juan Antonio LOZANO, Sr., et al., Appellants, v. Deana Ann LOZANO, Appellee. (14th Dist.)

Page 787

983 S.W.2d 787

Juan Antonio LOZANO, Sr., et al., Appellants, v. Deana Ann LOZANO, Appellee.

No. 14-96-01555-CV.

Court of Appeals of Texas Houston (14th Dist.).

Nov. 19, 1998.

Rehearing Overruled Dec. 23, 1998.

Ronald J. Restrepo, Paul J. McConnell, III, Ben A. Baring, Jr., Houston, for appellants.

Reba A. Eichelberger, Baytown, for appellee.

Before Justices LEE, ANDERSON, and O'NEILL.

OPINION

JOHN S. ANDERSON, Justice.

Appellants, Juan Lozano, Sr., Blanca Lozano, Monica Lozano, Eduardo "Alex" Lozano, and Sandra Lozano Warner, appeal from an adverse jury verdict finding them liable for interference with the possessory rights ¹ of appellee, Deana Warner ("Deana"), and for defamation. In five points of error, appellants contend there was no evidence or, alternatively, insufficient evidence, to support the jury's findings (1) that any appellant aided or assisted Junior Lozano in concealing a child; (2) that any appellant acted with malice; (3) of a causal link between their conduct and Deana's inability to secure possession of her child; (4) of damages; and (5) of defamation. We reverse and render in part and affirm in part.

Background

Juan Antonio Lozano, Jr. ("Junior") is the son of appellants, Juan Antonio Lozano Sr. ("Juan, Sr.") and Blanca Lozano ("Blanca"). Appellants Alex Lozano, Monica Lozano, and Sandra Warner are Junior's brother and sisters. Deana married Junior in July of 1993, and they had a daughter, Bianca, the following month. After Deana allegedly suffered abuse at Junior's hands, she and Junior separated. Several months later, a court temporarily awarded Deana custody of Bianca and gave Junior visitation rights. On April 7, 1993, Junior picked up Bianca for scheduled visitation, and he failed to return her on April 9 th. Deana and various authorities launched a massive effort to locate Bianca. They placed thousands of posters around Baytown, where Junior lived and was last seen; however, Bianca and Junior were never located.

Standards of Review for Factual and Legal Sufficiency

Challenges to the Evidence

We review a no evidence point of error by viewing the evidence in a light tending to support the finding of a disputed fact and disregarding all inferences to the contrary. See Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992). We determine whether some evidence supports the fact in issue. Id. If there is any evidence of probative force supporting the finding, the no evidence challenge must fail. See Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). Any more than a scintilla of evidence suffices to support a jury finding. Id. If the evidence is so weak as to create no more than mere surmise or suspicion of the existence of the finding, however, there is no evidence to support the finding. See Texarkana Mem'l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 838 (Tex.1997); Texas Indus., Inc. v. Vaughan, 919 S.W.2d 798, 801 (Tex.App.--Houston [14 th Dist.] 1996, writ denied). Circumstantial evidence can support a jury finding so long as it rises above mere suspicion. See Convalescent Servs., Inc. v. Schultz, 921 S.W.2d 731, 734 (Tex.App.--Houston [14 th Dist.] 1996, writ denied). However, if the plaintiff relies on circumstantial evidence, and the circumstances are equally consistent with either of two facts, no more than a scintilla supports a jury finding, and the no evidence point must be sustained. See Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996). Furthermore, a vital fact may not be established by stacking inference upon inference. See Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 858 (Tex.1968); Engstrom v. First Nat. Bank, 936 S.W.2d 438, 445 (Tex.App.--Houston [14th Dist.] 1997, writ denied.)

If there is some evidence supporting the finding, we then review the insufficiency of the evidence claim. Under this standard, we will set aside a finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998); Russell, 949 S.W.2d at 490. We make this determination by examining the entire record, considering and weighing all the evidence, both in support of, and contrary to, the challenged findings. See Maritime Overseas, 971 S.W.2d at 407. We may not, however, pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact. See id.; Tigner v. City of Angleton, 949 S.W.2d 887, 889 (Tex.App.--Houston [14 th Dist.] 1997, no writ).

Jury Questions Two and Four

In their first and second points of error, appellants contend there is no evidence, or alternatively, insufficient evidence to support the jury's answers as to Questions Two and Four. Question Two asked jurors whether appellants aided or assisted Junior in taking or retaining possession of Bianca or in concealing her whereabouts in violation of Deana's right of possession. An instruction stated that appellants are liable for aiding and abetting Junior in taking or retaining or concealing Bianca only if (1) Junior violated a court order granting Deana possession; and (2) the appellants knew their actions would aid or assist Junior in violating the court order. Question Four asked whether appellants acted with malice in interfering with Deana's right of possession.

To establish the liability of a person who aids or assists an abductor, the plaintiff must establish the non-abductor (1) aided or assisted the abductor in either taking, retaining, or concealing the child, and (2) had actual notice or reasonable cause to believe a court order existed affecting the custodial rights. ² See Weirich, 833 S.W.2d at 945. Few cases in Texas, or any other jurisdiction have addressed a non-abductor's interference with custody rights. In Texas, the principal case is Weirich, in which the defendant grandmother asserted that no evidence supported the verdict. In Weirich, the plaintiff-mother obtained a temporary restraining order precluding her husband from interfering with her custody, but he abducted their two children three days later. See 833 S.W.2d at 943. He took the children to stay with the defendant, his mother, on her farm. Despite a telephone call from the plaintiff requesting information, the defendant did not call the plaintiff to inform her that the children and their father were at her farm. Furthermore, the defendant bought the children new clothes. Id. The children were recovered soon thereafter, and a court appointed the plaintiff temporary managing conservator. Less than two weeks later, the defendant co-signed a bank note loaning her son $4000. She also loaned him her truck, which he used to remove the children's items from the plaintiff's house. These items were stored in the defendant's barn. Id. at 943-44. The defendant's son again abducted the children and took them to the defendant's home, whereupon the defendant drove the group to the airport. The defendant told the plaintiff that her son took the children camping. Id. at 944. The court found this constituted some evidence the defendant aided and assisted her son in taking, retaining, or concealing the children. Id. at 945-46.

In Smith v. Smith, 720 S.W.2d 586 (Tex.App.--Houston [1 st Dist.] 1986, no writ), the court considered whether sufficient evidence supported a jury finding that the defendants aided or assisted the abductor, who apparently was related to each defendant, in taking or retaining possession of his children or in concealing their whereabouts. See id. at 596-97. The court listed the myriad evidence supporting the jury finding, including evidence that one defendant was present when the abductor took the children from their mother, certain defendants met with the abductor in Europe following the abduction, one appellant charged a rental car and hotel room in Europe for the use of the abductor and certain other defendants, certain defendants stated that they would spend all their money to win custody of the children, and the abductor did not have the financial ability to support himself. Id. The court held this evidence was sufficient to support the jury's findings. Id. at 597.

Weirich and Smith are the only published Texas cases addressing a non-abductor's liability for interfering with custody rights. In each of these cases, the defendants both knew of the children's whereabouts and took affirmative measures to ensure the continuation of the abduction. In the present case, no direct evidence exists as to either circumstance. In order to overrule appellants' no evidence point of error, we must find that the inference of appellants' knowledge drawn from that circumstantial evidence is more reasonable than the lack of knowledge inference proposed by appellants. See Cazarez, 937 S.W.2d at 450.

Deana relies on the following evidence of financial support to uphold the jury finding: (1) Juan, Sr. and Sandra admitted they gave Junior money before the abduction; (2) appellants acknowledged that Juan, Jr. had no money, no job, and no car around the time of the abduction; ³ (3) Sandra wrote a $1000 check to Junior a few weeks before Junior's birthday, and the check was not cashed until the day after Junior was to return Bianca; (4) Sandra never gave Junior such a large check for previous birthdays; (5) Juan, Sr. gave Alex financial assistance; (6) Juan, Sr., Monica, and Sandra did not comply with discovery requests for financial information. At best, this evidence shows appellants were aware Junior was having financial difficulties before the abduction and that they provided monetary assistance. Nonetheless, Deana has not cited, and we have not found, any evidence that appellants knew the financial assistance, if any, would aid or assist Junior in violating the custody order. Therefore, any inference that the above evidence establishes appellants' knowledge is unreasonable. "Vital facts may not be proved by unreasonable inferences from other facts and...