Operation Rescue-National v. Planned Parenthood of Houston and Southeast Texas, Inc.

Decision Date19 December 1996
Docket NumberA-Z,R,RESCUE-NATIONA,No. 14-95-00363-CV,14-95-00363-CV
Citation937 S.W.2d 60
PartiesOPERATIONescue America, Dallas Rescue, Philip L. "Flip" Benham, Bob Jewitt, Keith Tucci, and Don Treshman, Appellants, v. PLANNED PARENTHOOD OF HOUSTON AND SOUTHEAST TEXAS, INC., West Loop Clinic,Women's Health Services, Downtown Women's Clinic, Houston Women's Clinic, Women's Pavilion, Women's Medical Center of N.W. Houston, AAA Concerned Women's Center, Aaron's Family Planning Clinic of Houston, Suburban Women's Clinic, Dr. Jerry Edwards, Dr. Robert P. Kaminsky, Dr. Doug Karpen, Dr. Bernard Rosenfeld, Dr. John Coleman, and Dr. Adebayo Adesomo, Appellees. (14th Dist.)
CourtTexas Court of Appeals

Jay Alan Sekulow, Washington, Cactus Jack Cagle, Houston, James Austin Pinedo, San Antonio, Richard W. Schmude, Tomball, for appellants.

Kathy D. Patrick, Neal S. Manne, Collyn A. Peddie, Houston, for appellees.



SEARS, Justice (Assigned).

This appeal is from a judgment awarding damages and permanently enjoining appellants, anti-abortion groups and their leaders, from interfering with access to appellees' homes and clinics. Appellees are ten women's clinics and several doctors who sometimes perform abortions. Based upon the jury's findings that appellants were liable for civil conspiracy, tortious interference, invasion of privacy and property rights, the judgment awarded actual and punitive damages to appellee Planned Parenthood of Houston and Southeast Texas, Inc. ("Planned Parenthood"). Appellants, Philip "Flip" Benham and Bob Jewitt, are referred to as "B/J," and appellants, Operation Rescue-National, Rescue America, Dallas Rescue, Don Treshman and Keith Tucci, are collectively referred to as "OR." In separate briefs, B/J raise thirty-seven points of error and OR raise fifty-four points, for a total of ninety-one points of error, many of which overlap. Both groups contend the permanent injunction violates both the Texas and United States Constitutions. They also attack the sufficiency of the evidence to substantiate the trial court's findings supporting the injunctive relief. They complain of errors in the jury instructions, in the composition of the jury, in the amended and corrected judgments, and in the assessment of costs. In addition, OR challenge the sufficiency of the evidence supporting the actual and punitive damages imposed against them. 1 We affirm the judgment of the trial court.


Appellants sought to interfere with the activities of Planned Parenthood and other family planning clinics in August 1992 during the Republican National Convention in Houston. Don Treshman, the National Director of appellant Rescue America, announced a plan for a concerted, large-scale assault on Houston abortion providers. Treshman met with leaders of Operation Rescue-National before the GOP Convention. The groups agreed to jointly exert pressure on Planned Parenthood and other clinics to force them to close during the Convention. The primary tactic was conducting or sponsoring "rescues" which are blockades of clinics. In addition, Operation Rescue planned to promote residential pickets of physicians who worked at the clinics, and Rescue America was to coordinate information on these pickets. Pat Mahoney, a spokesman for Operation Rescue-National, acknowledged that the two groups had a common purpose and plan and were "all working toward a common goal." Appellants also announced their plan at a press conference.

In response, appellees and others filed suit and obtained a temporary restraining order (TRO) preventing appellants from coming within a 100-foot "buffer zone" of appellees' clinics and homes. Appellants Tucci, Benham and Jewitt, along with others who are not parties to this appeal, intentionally violated that part of the TRO barring demonstrations within the 100-foot zone around the clinics' entrances and exits, and they were jailed. All sought habeas relief, which the Texas Supreme Court granted. The supreme court held that the TRO imposing a 100-foot speech-free zone around the clinics' entrances and exits violated the protestors' constitutional right to freedom of expression because there was no showing the zone was the "least restrictive" means of protecting the clinics from harm. Ex parte Tucci, 859 S.W.2d 1, 7 (Tex.1993) (plurality opinion).

Appellees then amended their pleadings, sought a permanent injunction, and Planned Parenthood later asked for actual and punitive damages. Following a six-week jury trial and a two-day evidentiary hearing on the particulars of the proposed injunctive relief, Judge Eileen O'Neill of the 190th District Court signed a Judgment and Permanent Injunction on December 5, 1994. The judgment awarded the following damages to Planned Parenthood, plus pre- and post-judgment interest:

$204,585 in actual damages from Operation Rescue-National, Rescue America, Don Treshman, and Keith Tucci, jointly and severally; plus punitive damages as follows: $350,000 from Operation Rescue-National; $355,000 from Rescue America; $155,000 from Don Treshman; and $150,000 from Keith Tucci, for a total of $1,010,000 in punitive damages.

The judgment permanently enjoined and restrained appellants from interfering with the clinics, harassing the physicians and their family members, and demonstrating within a specific zone as to each clinic and doctor's residence. These zones range from fifteen feet to thirty-two feet around the entrances to the clinics and are outlined on maps attached to the injunctive order. The demonstration-free zones also extend thirteen feet from the property line in front of each physician's residence. The judgment incorporates the trial court's findings of fact and conclusions of law as to the injunctive relief.

After entry of the judgment, the cause was transferred to the 333rd District Court, where Judge Richard Bianchi signed an Amended Judgment and Permanent Injunction on February 1, 1995, to correct two errors in the judgment. Subsequently, on June 15, 1995, the same court entered a Judgment Nunc Pro Tunc and Permanent Injunction to include the attachment of exhibits inadvertently omitted from the Amended Judgment. This appeal resulted.

Jury Composition

In their points forty-six and forty-seven, OR contend the trial court erred in refusing to strike certain jurors for cause, requiring them to use all of their peremptory challenges and accept jurors they found objectionable. B/J raise the same complaints in their points twenty-nine and thirty.

To preserve error in the trial court's failure to strike objectionable jurors, the complaining party must timely bring its complaint to the trial court's attention before making its peremptory challenges. Hallett v. Houston Northwest Medical Center, 689 S.W.2d 888, 889-90 (Tex.1985). The objecting party must specifically inform the trial court which objectionable jurors will remain after all peremptory strikes are made, and this notice must be given before the actual exercise of the strikes. Id; see also Beavers v. Northrop Worldwide Aircraft Services, Inc., 821 S.W.2d 669, 673 (Tex.App.--Amarillo 1991, writ denied); Carpenter v. Wyatt Constr. Co., 501 S.W.2d 748, 750-51 (Tex.Civ.App.--Houston [14th Dist.] 1973, writ ref'd n.r.e.).

In this case, after the trial court excused several potential jurors for cause, the court overruled appellants' challenges for cause as to twenty-one additional venire members. The parties then made their peremptory strikes. Appellants did not object to the trial court's denial of their challenges for cause until after all parties had exercised their peremptory strikes and the jury was about to be sworn. They argued that two jurors about to be impaneled were objectionable and would have been challenged peremptorily if they could have done so. They then listed seven jurors on whom they would have used a peremptory strike, but they failed to fully articulate their objection and obtain a ruling. In addition, appellants did not seek additional peremptory challenges. By failing to object to the trial court's refusal to strike objectionable jurors until after the peremptory strikes were made, appellants have waived error, if any. B/J's points twenty-nine and thirty and OR's points forty-six and forty-seven are overruled.

Charge Error

In B/J's points of error four through seven and OR's points one through seven, appellants complain about alleged errors in Jury Instruction No. 2, which provided in relevant part:

"Civil conspiracy" means a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. To find a civil conspiracy, you must find the following:

1. a combination of two or more persons,

2. who agree or have a meeting of the minds on a common purpose or course of action,

3. who have knowledge of the purpose or course of action, and

4. at least one of such persons commits at least one act to further the conspiracy.

"Unlawful" means violative of either criminal or civil law.

The trial court has broad discretion in submitting explanatory instructions and definitions. Wisenbarger v. Gonzales Warm Springs Rehab. Hosp., Inc., 789 S.W.2d 688, 692 (Tex.App.--Corpus Christi 1990, writ denied). Instructions and definitions are proper when they are raised by the written pleadings, supported by the evidence, and they aid the jury in answering the questions in the charge. TEX.R. CIV. P. 277, 278.

To preserve error in the jury charge, a party must make the trial court aware of the complaint, timely and plainly, and obtain a ruling. State Dept. of Highways v. Payne, 838 S.W.2d 235, 241 (Tex.1992); TEX.R. CIV. P. 274. A party is required to object when the court submits an erroneous question, instruction or definition. TEX.R. CIV. P. 274; see, e.g., Spencer v. Eagle Star Ins. Co., 876 S.W.2d 154, 157 (Tex.1994). Objections must be made before the...

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