Moyer v. Moyer, No. 03-03-00751-CV (TX 8/26/2005)
| Decision Date | 26 August 2005 |
| Docket Number | No. 03-03-00751-CV.,03-03-00751-CV. |
| Parties | GARY MOYER, Appellant, v. MARSHA ANN MOYER, Appellee. |
| Court | Texas Supreme Court |
Appeal from the District Court of Williamson County, 277th Judicial District, No. 00-15120-FC2-277, Honorable Derwood Johnson, Judge Presiding.
Affirmed.
Before Chief Justice LAW, Justices B. A. SMITH and PEMBERTON.
This appeal arises from a judgment of divorce in which actual and exemplary damages were awarded on a jury verdict finding intentional infliction of emotional distress. Appellant Gary Moyer asserts eleven issues he categorizes as (1) errors relating to the jury charge, (2) evidentiary errors, (3) errors regarding the damages awarded, and (4) errors regarding the admission of certain testimony from two expert witnesses. We will affirm the judgment.
Gary and Marsha Moyer were married on April 20, 1991. The jury heard evidence that, only seventeen days after their wedding, Gary physically beat and verbally abused Marsha, grabbed her by the hair, choked her, shoved her into a wall, and smothered her face with his hand until she was unconscious. Following this incident, Marsha filed for divorce alleging domestic violence, but the couple later reconciled and she dismissed the action.
Marsha testified about later incidents in which Gary punched, kicked, choked, or raped her, and banged her face and head into walls. She was later found to have a deviated septum and a damaged tear duct that causes her eye to water, which she attributes to Gary's physical abuse. Marsha also recounted verbal abuse, stating that Gary would call her obscene names, crazy, worthless, or stupid, and terrorize her with threats to kill her, suggesting that no one would hear a gunshot coming from their rural residence near Florence.1 Dr. Alaire Lowry testified that Marsha lived in "abject terror" of Gary. Other witnesses—including a friend of Marsha with whom she sought refuge several times, her daughter, and her former husband—recounted seeing bruises and other signs of abuse.
Marsha left Gary after an August 6, 2000, incident in which she testified that "[m]y husband tried to kill me." After seeking help from a longtime friend, she went to authorities and filed a domestic violence report.2 Both her friend and the interviewing officer testified that Marsha had swelling in her face and redness or scratches on her neck.
Two days later, Marsha filed for divorce. She later amended her petition to allege a claim for intentional infliction of emotional distress. See Twyman v. Twyman, 855 S.W.2d 619, 622 (Tex. 1993). Marsha also asserted defenses to the enforcement of a premarital agreement and an alter ego claim seeking to recover from Paper Resources International, Inc., a corporation that Gary had started in 1987.
The district court submitted to the jury: (1) whether grounds for divorce existed on the basis of cruel treatment by either Gary or Marsha against the other, see Tex. Fam. Code Ann. § 6.002 (West 1998); (2) whether the parties had entered into the premarital agreement that Gary had sought to enforce, see id. §§ 4.002-.006; (3) Marsha's alter ego claim against the corporation; and (4) liability, actual damages, and punitive damages under Marsha's intentional infliction of emotional distress claim. Following the verdict and before judgment, the original verdict was lost; the district court, however, determined that the jury: (1) found, as the sole ground for divorce, "Cruel treatment by Gary Moyer against Marsha Ann Moyer"; (2) found in Gary's favor on the premarital agreement and alter ego issues; (3) found that Gary had intentionally inflicted severe emotional distress on Marsha; (4) awarded a total of $908,000 in actual damages on the intentional infliction claim, including $68,000 for past and future medical care, $ 170,000 for past physical pain, $120,000 for past lost earning capacity, $210,000 for future lost earning capacity, $240,000 for past severe emotional distress, and $100,000 for future severe emotional distress; and (5) found that Gary had acted with malice and awarded $875,000 as punitive damages. The district court rendered judgment in accordance with this verdict.3
This appeal ensued.
Gary does not appeal the judgment of divorce or property division, but focuses solely on Marsha's "claims for damages on her claim for intentional infliction of emotional distress." He brings eleven issues, which can be grouped into issues concerning the (1) loss of the original jury charge, (2) content of the jury charge, (3) damages awarded, and (4) admission of certain testimony from two expert witnesses.
Issues concerning the loss of the original charge
In his first two issues, Gary seeks a new trial due to the loss of the original verdict. A week prior to the hearing on entry of judgment, the parties were informed that the jury's original verdict had been lost. At the hearing, one of Marsha's attorneys presented the court with a copy of the charge containing handwritten answers reflecting what was represented to have been the jury's answers. This conformed copy of the charge was introduced into evidence as Hearing Exhibit 1. Marsha's attorney emphasized that the answers to each numbered question corresponded to the answers the presiding juror had announced on the record when returning the jury's verdict.
After further discussion, the judge left the bench and returned with twelve copies of the charge that had been distributed to each juror at trial. Many of these copies had the jurors' names and answers written on them. The court introduced these copies into evidence as Hearing Exhibit 2. Gary objected to the court's consideration of these exhibits as a basis for judgment, urging that the rules of civil procedure required the original verdict to be "spread upon the minutes of the Court" and made a part of the record, with apparent reference to Rule 293 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 293. The district court overruled the objection and proceeded to render judgment on the verdict as reflected "[i]n lieu of the original, a conformed copy of [t]he questions submitted to the jury and the jury's findings," which the court attached and incorporated by reference.
On appeal, Gary does not assert that the conformed charge inaccurately reflects either the original charge or the jury's answers. He complains, rather, that the district court violated various procedural requirements and eliminated any means of objectively verifying from the record that the conformed charge accurately reflects the original charge and verdict.
In his first issue, Gary argues that the district court committed reversible error by failing to read the jury charge in its entirety when charging the jury. As Gary observes, Texas Rule of Civil Procedure 275 states that "[b]efore the argument is begun, the trial court shall read the charge to the jury in the precise words in which it was written, including all questions, definitions, and instructions which the court may give." Tex. R. Civ. P. 275. Here, after the charge conference, the jury returned to the courtroom and the court explained that it was "going to read portions of this charge." The court proceeded to omit a series of definitions and the individual issues. Gary urges that because the district court did not read the entire charge, there was no means in the record of verifying that the conformed charge accurately reflected the original charge and answers. He points out that, when announcing the jury's verdict, the presiding juror identified each question solely by its number, without reading the question or otherwise elaborating on its content. However, Gary waived any complaint under rule 275 by failing to object when the district court announced its intention to read only portions of the charge. See Tex. R. App. P. 33.1(a). Moreover, when the issue of the missing original verdict was discussed at the hearing on entry of judgment, Gary's counsel acknowledged that "we waived the reading of the charge" because of its length. We overrule Gary's first issue.
In his second issue, Gary complains that the district court erred in rendering judgment based on the conformed charge.4 We conclude that the district court did not act improperly, see Tex. R. App. P. 34.5(e); Tex. R. Civ. P. 77, and that, in any event, Gary has failed to demonstrate harm. See Gravely v. Kirkland, No. 09-98-282-CV, 1999 Tex. App. LEXIS 5277, at *2-3 (Tex. App.-Beaumont July 15, 1999, pet. denied); see also Caldwell v. State, 875 S.W.2d 7, 8 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd) (per curiam); Padilla v. State, No. 01-89-01180-CR, 1992 Tex. App. LEXIS 3331, at *2-3 (Tex. App.-Houston [1st Dist.] 1994, no pet.). We overrule Gary's second issue.
Issues concerning the contents of the charge
In his third, fourth, and fifth issues, Gary complains of the district court's refusal to include in the charge various limiting instructions he had requested concerning Marsha's claim for intentional infliction of emotional distress. Additionally, in a supplemental brief, Gary attempts to raise an eleventh issue contending that the district court erred in submitting Marsha's intentional infliction claim at all.
Submission of intentional infliction claim
In the eleventh issue he presents in his supplemental brief, Gary relies on Hoffman-La Roche, Inc. v. Zeltwanger in arguing that the gravamen of Marsha's intentional infliction claim was assault and that her redress was accordingly limited to recovery under that theory. 144 S.W.3d 438, 447-48 (Tex. 2004) (quoting Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998)) ( that intentional infliction of emotional distress is "gap-filler" tort whose purpose is to "supplement existing forms of recovery by providing a cause of action for egregious conduct" that might otherwise go unremedied). He observes...
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