Lozano v. Lozano

• Citation: 52 S.W.3d 141
• Decision Date: 08 March 2001
• Docket Number: No. 99-0121,99-0121
• Parties: (Tex. 2001) Deana Ann Lozano, Petitioner v. Juan Antonio Lozano, Sr., Blanca Suarez Lozano, Monica I. Lozano, Sandra Warner, Eduardo A. Lozano, Respondents
• Court: Texas Supreme Court

Page 141

52 S.W.3d 141 (Tex. 2001)

Deana Ann Lozano, Petitioner v. Juan Antonio Lozano, Sr., Blanca Suarez Lozano, Monica I. Lozano, Sandra Warner, Eduardo A. Lozano, Respondents

No. 99-0121

Supreme Court of Texas

Argued April 5, 2000

Decided March 8, 2001

On Petition for Review from the Court of Appeals for the Fourteenth District of Texas

[Copyrighted Material Omitted]

Per Curiam

We grant, in part, the motion for rehearing of Blanca, Monica and Alex Lozano, withdraw our opinion dated December 14, 2000, and substitute the following in its place.

Here, we decide whether there is legally sufficient evidence to uphold a jury verdict under Texas Family Code section 42.003, which provides a cause of action to a person with a possessory right to a child against one who aids or assists in interfering with that right. ¹

Deana Lozano and Juan Antonio Lozano, Jr. ("Junior") are the parents of Bianca Lozano. When Deana and Junior separated, the court awarded Deana temporary custody of Bianca and gave Junior visitation rights. During one of those visits, Junior and Bianca disappeared, and neither has since been located. Deana sued Junior's parents, Juan Antonio Lozano, Sr. and Blanca Suarez Lozano; and his siblings, Monica Lozano, Eduardo Lozano ("Alex"), and Sandra Lozano Warner (collectively the "Lozanos"), under Texas Family Code section 42.003 for allegedly aiding and assisting in Junior's interference with her possessory rights. The trial court rendered judgment on the jury verdict, awarding Deana $1,000,000 against the defendants, jointly and severally, for the interference-with-possessory-rights claim, and an additional $1.2 million in punitive damages against the various defendants individually ($300,000 against each parent, and $200,000 against each sibling). The court of appeals reversed, holding that there was no evidence to support the jury's finding regarding any of the Lozanos. 983 S.W.2d 787. We affirm in part and reverse and remand in part.

Because there is some evidence to support the jury's determination that Blanca Lozano, Monica Lozano and Alex Lozano aided or assisted Junior in taking or retaining possession of Bianca or in concealing her whereabouts, the Court reverses the judgment of the court of appeals as to these defendants and remands the cause to that court for consideration of respondents' remaining points of error. Because there is no evidence that Sandra Lozano Werner or Juan Lozano aided or assisted Junior in taking or retaining possession of Bianca, the Court affirms the court of appeals' judgment that plaintiff take nothing from these defendants.

Phillips, C.J., filed a concurring and dissenting opinion in which Enoch and Hankinson, J.J., joined except as to Part IV(D), Monica Lozano, and Part IV(E), Alex Lozano, and in which Baker and Abbott, J.J., joined except as to Part IV(A), Sandra Lozano Warner, Part IV(D), Monica Lozano, and Part IV(E), Alex Lozano.

Hecht, J., filed a concurring and dissenting opinion in which Justice Owen joined.

Baker, J., filed a concurring and dissenting opinion in which Justice Abbott joined and in which Justice Enoch and Justice Hankinson joined except as to Sandra Lozano Warner.

O'Neill, J., did not participate.

Gonzales, J., who participated in the original decision in this case, resigned his office on December 25, 2000, and did not participate in the motion for rehearing.

Chief Justice Phillips filed a concurring and dissenting opinion in which Justice Enoch and Justice Hankinson joined except as to Part IV(D), Monica Lozano, and Part IV(E), Alex Lozano, and in which Justice Baker and Justice Abbott joined except as to Part IV(A), Sandra Lozano Warner, Part IV(D), Monica Lozano, and Part IV(E), Alex Lozano.

I agree that there is some evidence that Junior's mother assisted him in taking retaining or concealing Bianca. I further agree that there is no evidence that Juan or Sandra aided or assisted Junior. I cannot agree, however, that there is any evidence that Junior's younger sister and brother, Monica and Alex, assisted Junior in taking or concealing the child. Accordingly, I join in part of the Court's decision and dissent in part.

I. Standard of Review

Section 42.003 provides for civil liability against one who aids or assists in the interference with another person's possessory interest in a child. Tex. Fam. Code § 42.003. Under that section, a person who aids or assists the taking, retaining, or concealing of a child in violation of another's possessory rights may be liable if (1) the person had actual notice of the existence and contents of the order providing for a possessory right or (2) had reasonable cause to believe that the child was the subject of an order and that the person's actions were likely to violate the order. Id.; see also Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992).

Here, the liability issue was submitted to the jury with the instruction that "a defendant is liable for aiding or assisting Juan Antonio Lozano, Jr., in taking or retaining or concealing the whereabouts of Bianca Lozano only when ... [s]uch Defendant knew that the Defendant's action would aid or assist Juan Antonio Lozano, Jr. in violating the Court's order." (Emphasis added). Because the parties included this knowing requirement in the instruction without objection, we need not decide whether this instruction was proper and may review the sufficiency of the evidence in light of the questions and instructions as submitted. Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex. 1985). Because the Lozanos admit that they had actual knowledge of the court order awarding Deana possession, the only issue is whether there is some evidence that the Lozanos knew their actions would aid or assist Junior in taking, retaining, or concealing Bianca in violation of the order.

In reviewing a no evidence point, we consider the evidence in a light most favorable to the verdict. Weirich, 833 S.W.2d at 945. If more than a scintilla of evidence exists, it is legally sufficient. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993). To rise above a scintilla, the evidence offered to prove a vital fact must do more than create a mere surmise or suspicion of its existence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). In determining legal sufficiency, we consider whether the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994); see also Kindred, 650 S.W.2d at 63.

Deana offered no direct evidence that any of the Lozanos knowingly aided or assisted Junior in taking, retaining, or concealing Bianca. But the jury's finding may be upheld on circumstantial evidence as long as it may fairly and reasonably be inferred from the facts. Blount v. Bordens, Inc., 910 S.W.2d 931, 933 (Tex. 1995).

II. The Evidence

In 1994, Junior and Deana separated, going to live with their respective parents. Divorce proceedings were subsequently commenced, with the issues surrounding custody of Bianca being especially contentious.

Under temporary custody orders, Junior picked up Bianca at Deana's parents' home on Friday evening, April 7, 1995, for weekend visitation. He took the child, then twenty months old, to his own parents' home, where Juan and Blanca testified that they visited with Junior and their granddaughter Friday evening before they went to bed.

Junior's brother, Alex, also lived in the family home, but he testified that he never saw Junior after he picked up Bianca that weekend. Junior's younger sister, Monica, who also lived at home but worked nights, testified that she only saw Junior and Bianca on Friday evening before she left for work. Finally, Juan and Blanca testified that they did not see either Junior or their granddaughter after they went to bed on Friday night.

The elder Lozanos left the house together on Saturday morning to run errands. Before they left, Juan tried to open the door to Junior's bedroom, but it was locked. Junior and the child were not at home when the Lozanos returned early that evening, nor had they come home by the time the Lozanos retired. On Sunday morning, the elder Lozanos went to church. They testified that they assumed that Junior and Bianca were asleep in Junior's bedroom, but they did not check to see. When they returned from church, Junior and the child were definitely gone.

Their only contact with Junior after Friday occurred late Sunday afternoon, when Junior spoke briefly to Blanca by telephone. She recalled Junior saying, "Mom, we're okay and I'm not coming home," but she offered no other details. Although she had not seen him since Friday, Blanca did not ask where he and Bianca had gone, when they had left, or where they would be going.

A little after 6 p.m. Sunday evening, Deana called the Lozanos' house when Junior was late returning Bianca. Blanca, who answered the phone, told Deana that Junior was on his way to her house. When Junior had not arrived after another twenty minutes, Deana called again. This time she asked Blanca which car Junior had taken. Junior did not own a car, but his parents let him use a family vehicle when he needed transportation. Deana also asked if Junior had taken any baby clothes when he left. Blanca said that she would check and that Deana should call back.

Meanwhile, Deana called the police. Under their internal policy, it was too soon for them to be involved so they told her to contact her attorney. In checking Junior's room, Blanca discovered that some items of clothing were indeed missing. She also discovered that there were no soiled baby clothes in the room, as would be expected after a weekend visit from such a young child.

Before 7 p.m., Deana made her third call to the Lozanos. Blanca told her that none of the family's cars were missing. According to Deana, she asked again about missing clothes, but Blanca avoided giving an...