Regan v. Lee

• Decision Date: 05 May 1994
• Docket Number: No. A14-93-00595-CV,A14-93-00595-CV
• Citation: 879 S.W.2d 133
• Parties: Timothy Daniel REGAN, Appellant, v. Mary LEE, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 133

879 S.W.2d 133

Timothy Daniel REGAN, Appellant, v. Mary LEE, Appellee.

No. A14-93-00595-CV.

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

May 5, 1994.

Warren Cole, Houston, for appellant.

Michael B. Lee, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and MURPHY and ELLIS, JJ.

OPINION

PER CURIAM.

Appellant, Timothy Daniel Regan, appeals the trial court's judgment in favor of appellee, Mary Lee, for intentional infliction of emotional distress. We reverse and render.

On July 27, 1991, appellee was driving her automobile on Memorial Drive in Houston with her two pre-teenage children. She attempted to make a right hand turn onto Mott Lane but was prevented from doing so by a truck that was blocking her path. Appellant was driving his jeep directly behind appellee and had two female passengers. Appellant began honking at appellee at which time appellee rolled down her window and told him, "If you think you can do a better job, please be my guest." Appellant responded, "Hey b----, why don't you come suck my d---."

Eventually, appellant was able to drive his vehicle around appellee's and left the scene. Appellee then followed appellant for approximately 15 miles until he pulled into a cul-de-sac and she parked her car in front of his, preventing him from leaving. At that point, appellee exited her vehicle and asked appellant what his problem was. Appellant replied, "F--- you b----. I don't have to answer your questions. I don't have to answer anything you say." Appellee then tried to reach into appellant's vehicle to get his car keys, but was unsuccessful.

Subsequent to the incident, appellant attempted to apologize by phone, but appellee would not accept his apology. Appellant, through a mutual friend, attempted to set up a meeting with appellee to resolve the incident, but appellee cancelled the meeting. Appellee admitted that appellant had nothing to do with obstructing or cancelling this meeting.

Appellee sued appellant for damages. At the bench trial, she testified as to her distress as a result of the incident:

[APPELLEE]: Depression. Listening to a then 11-year-old and 13-year-old wonder what we did wrong to have some nice-looking boy speak to me in that manner. Upset me to the point where I was unable to answer that question in their minds, but think what is this world coming to when all you're doing is making a simple right-hand turn onto your own street with your children and because somebody else cannot control their language would affront you like that. I almost felt like I had been raped.

[COUNSEL]: Candidly speaking, did it make you mad?

[APPELLEE]: Very mad. Very angry.

[COUNSEL]: Did it in your judgment and in your mind humiliate you?

[APPELLEE]: Yes. Oh, very much so. Especially in front of my children.

[COUNSEL]: Mrs. Lee, is this a matter of principle?

[APPELLEE]: Yes, sir, it is.

On cross examination, appellee testified that she did not seek assistance from a mental health professional as a result of the distress caused by this incident and there was no evidence that she suffered any pecuniary loss. Appellee testified that her damages were $5,000. When asked on cross-examination where the $5,000 in damages came from, appellee answered, "No pencil and paper to it. Just a number. It could have been a lot higher." In addition, when asked why the court should consider compensating her $5,000, the substance of her response was because appellant "has not shown any remorse nor has there been a real consequence to his actions." She also explained that the damages "might get his attention" and that "later on down in his life that before he opens his mouth and before he would allow someone to speak his own mother or sister that way, that he's going to think twice about looking at a woman with her children in the car and saying what he did to me." After a bench trial, the court found in favor of appellee and awarded her $2,500 in damages.

Appellant asserts six points of error. First, the trial court erred in finding that appellant verbally assaulted appellee without provocation because the evidence is legally insufficient, and in the alternative, factually insufficient to support the finding. Second, the trial court erred in concluding that appellant's action in verbally accosting appellee constituted extreme and outrageous conduct because liability does not extend to mere insults and indignities. Third, the trial court erred in concluding that appellant's actions constituted extreme and outrageous conduct because the evidence is legally insufficient, and in the alternative, factually insufficient, to support the conclusion. Fourth, the trial court erred in finding that appellee suffered severe emotional distress because the evidence is legally insufficient, and alternatively, factually insufficient to support the findings of severe emotional distress and the conclusion that the element of severe emotional distress had been established. Fifth, the trial court erred in concluding that the damage award of $2,500 was not excessive because the evidence is legally insufficient, and in the alternative, factually insufficient, to support a damage award. Sixth, the trial court erred in concluding that appellant's actions constituted extreme and outrageous conduct as a matter of fact and law because allowing recovery for a wrong that has no basis violates public policy.

The majority of appellant's points of error concern the legal and factual insufficiency of issues on which he did not have the burden of proof. The legal insufficiency questions are, in effect, "no evidence" points of error, upon which we can render judgment. Therefore, the question becomes whether a predicate was required to preserve error on these points, and if so, whether appellant properly laid that predicate.

In the history of Texas law, to raise a "no evidence" point before an appellate court after a jury trial, the appellant must have filed one or more predicate motions designed to bring the error to the trial judge's attention, enabling the judge to correct the error and render judgment for the movant before jurisdiction was lost. Bluebonnet Exp. v. Employers Ins. of Wausau, 651 S.W.2d 345, 351-52 (Tex.App.--Houston [14th Dist.] 1983, writ ref'd n.r.e.). These predicate motions include: (1) a motion for instructed verdict; (2) a motion for judgment notwithstanding the verdict; (3) an objection to the submission of the issue to the jury; (4) a motion to disregard the jury's answer to a vital fact issue; or (5) a motion for new trial specifically raising the complaint. Aero Energy, Inc. v. Circle C Drilling Co., 699 S.W.2d 821, 822 (Tex.1985). However, no such predicate motion requirements have been imposed on appeals from nonjury trials and it has been possible to raise both legal and factual sufficiency of the evidence points for the first time on appeal as long as the complaint has somehow been brought to the trial judge's attention. Bluebonnet Exp., 651 S.W.2d at 352 (citing, Kissman v. Bendix Home Systems, 587 S.W.2d 675, 677-78 (Tex.1979)).

Furthermore, TEX.R.APP.P. 52(a) requires a party to present to the trial court a timely request, objection or motion in order to preserve appellate review. The rule was amended in 1990 to clarify appellate requisites from nonjury trials. The amended portion of Rule 52(d) reads as follows:

A party desiring to complain on appeal in a nonjury case that the evidence was legally or factually insufficient to support a finding of fact, that a finding of fact was established as a matter of law or was against the overwhelming weight of the evidence, or of the inadequacy or excessiveness of the damages found by the court shall not be required to comply with paragraph (a) of this rule.

In other words, challenges to a finding of fact's legal and factual sufficiency can be made for the first time on appeal from nonjury trials. Westech Eng. v. Clearwater Constructors, 835 S.W.2d 190, 196-97 (Tex.App.--Austin 1992, no writ). Therefore, no predicate was required for appellant to challenge the legal and factual insufficiency of findings of fact on appeal. However, the general rule pursuant to Rule 52(a) still applies to challenges to conclusions of law from nonjury trials. See TEX.R.APP.P. 52(d); Winters...