Toles v. Toles

• Decision Date: 11 April 2001
• Docket Number: No. 05-97-00303-CV,05-97-00303-CV
• Citation: 45 S.W.3d 252
• Parties: (Tex.App.-Dallas 2001) LOUGAY MALONE TOLES, APPELLANT v. H. EDWARD TOLES, III, APPELLEE
• Court: Texas Court of Appeals

Page 252

45 S.W.3d 252 (Tex.App.-Dallas 2001)

LOUGAY MALONE TOLES, APPELLANT v. H. EDWARD TOLES, III, APPELLEE

No. 05-97-00303-CV

Court of Appeals of Texas, Dallas

April 11, 2001

Appeal from 254th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 93-13636-R

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Justices Fitzgerald, Richter, and Rosenberg ¹

OPINION

Barbara Rosenberg, Justice (Assigned).

This case involves a divorce action between Lougay Malone Toles (Wife) and H. Edward Toles III (Husband). In two points of error, Wife appeals the judgment notwithstanding the verdict (JNOV) denying her claim for intentional infliction of emotional distress and the $120,000 sanctions judgment against her. In four conditional cross-points, Husband claims the evidence is factually insufficient to support the verdict, there was an error in the charge, and the remedy for any error is remand for a division of the property. We sustain both of Wife's points, overrule Husband's cross-points, and reverse the portions of the trial court's judgment related to Wife's tort claims and sanctions. We render judgment that Husband take nothing on his sanction claim, reinstate the jury verdict awarding $325,000 to Wife on her tort claim, and remand to the trial court for entry of judgment on the jury verdict with prejudgment and postjudgment interest.

BACKGROUND

The parties were married in 1971 and separated in 1993. Husband filed for divorce. Wife filed a counter-petition for divorce and a claim for personal injuries, alleging intentional infliction of emotional distress and assault and battery. The case was bifurcated, and the tort claims were tried to a jury. The jury returned a verdict in favor of Wife on the claim for intentional infliction of emotional distress and awarded her damages of $325,000.² The trial court, however, disregarded the jury's finding, granted Husband's motion for JNOV, and ordered that Wife take nothing on her tort claims. All remaining matters related to the divorce were determined by the court in a bench trial. In the divorce decree, the court ordered Wife to pay $120,000 to Husband as sanctions "for her misconduct during the pendency of this cause." Wife appeals the JNOV and the sanctions.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

In her first point of error, Wife contends the trial court erred in granting JNOV for Husband because there was legally sufficient evidence to support the findings of the jury. Husband brings three cross-points requesting relief if the JNOV on the tort claim is reversed. He alleges insufficient evidence to sustain the verdict,³ jury charge error, and argues the case should be remanded to the trial court for redetermination of a just and right division of the community estate in the divorce action.

Standard and Scope of Review

A trial judge may properly grant a JNOV when there is no evidence to support one or more of the jury's findings of fact necessary to the judgment. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex. 1990). To uphold the JNOV, we must determine that no evidence supports the jury's findings. Brown v. Bank of Galveston, Nat'l Ass'n, 963 S.W.2d 511, 513 (Tex. 1998); see Stokes v. Puckett, 972 S.W.2d 921, 923 (Tex. App.-Beaumont 1998, pet. denied). Thus, we must determine whether there is any evidence upon which the jury could have made a necessary finding of fact. In conducting this review, we review the record in the light most favorable to the finding of fact, considering only the evidence and inferences from the evidence that support the finding and rejecting the evidence and inferences that do not. Mancorp, Inc., 802 S.W.2d at 227; Sherman v. First Nat'l Bank, 760 S.W.2d 240, 242 (Tex. 1988) (per curiam). Where there is more than a mere scintilla of competent evidence to support a jury's finding of necessary facts, the JNOV will be reversed. Mancorp, Inc., 802 S.W.2d at 228. More than a scintilla of evidence exists if the record reveals some probative evidence to support the verdict, no matter how small. Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162, 164 (Tex. App.-Texarkana 1998, no pet.).

We review a factual sufficiency challenge to the jury verdict by examining all of the evidence presented at trial. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). We will set aside the finding only when it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id.

Applicable Law

A party who claims intentional infliction of emotional distress must prove that (1) the defendant acted intentionally or recklessly, (2) the defendant's conduct was extreme and outrageous, (3) the outrageous conduct caused the complainant emotional distress, and (4) the emotional distress suffered was severe. See Southwestern Bell Mobile Sys., Inc. v. Franco, 971 S.W.2d 52, 54 (Tex. 1998); Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993).

Before a question is submitted to a jury on intentional infliction of emotional distress, the court must determine, as a question of law, whether the plaintiff has presented evidence which, if believed, meets the legal standard for "extreme and outrageous" conduct. See Wornick Co. v. Casas, 856 S.W.2d 732, 734 (Tex. 1993). As factfinder, the jury may believe or disbelieve any or all of the testimony of any witness. Barnes v. State Bar of Tex., 888 S.W.2d 102, 110 (Tex. App.-Corpus Christi 1994, no writ).

For each element, we first address the legal sufficiency of the evidence, then the factual sufficiency of the evidence.

Intentional or Reckless Conduct

Intentional infliction of emotional distress requires either that the actor intends to cause severe emotional distress or severe emotional distress is the primary risk created by the actor's reckless conduct. Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 63 (Tex. 1998). Intentional conduct requires a showing that the actor desired the consequences of his act. Behringer v. Behringer, 884 S.W.2d 839, 842 (Tex. App.-Fort Worth 1994, writ denied); LaCoure v. LaCoure, 820 S.W.2d 228, 233 (Tex. App.-El Paso 1991, writ denied). An actor is reckless when he knows or has reason to know of facts that create a high degree of risk of harm to another and deliberately proceeds to act in conscious disregard of, or indifference to, that risk. Twyman, 855 S.W.2d at 624. Intent may be inferred from the circumstances and the conduct of the actor, not just from the overt expressions of intent by the actor. LaCoure, 820 S.W.2d at 233. Of course, rarely will a defendant admit knowing of a substantial certainty that emotional harm would befall the victim. Twyman, 855 S.W.2d at 623. Juries are free to discredit the defendant's protestations that no harm was intended and to draw necessary inferences to establish intent. Id.

Wife testified to numerous incidents, over the term of the parties' marriage, where Husband mentally and physically abused her. She testified that Husband pinned her against the wall, choked her, spit on her, poured various liquid substances (including Coke, water, orange juice, and Nyquil) on her, threw barbeque against the curtains and on her, locked her out of her house, crushed her hand, pulled her out of the car, stomped on her feet, threatened to smother her, threatened to snap her neck, broke planters and a vase, destroyed numerous items of her personal property that had sentimental value, destroyed her college papers that she stayed up all night typing, dumped her clothes out of the closet, cut her clothing with scissors, called her names, and yelled obscenities at her.

After an argument between the parties following their separation, about which both parties testified, Wife was hospitalized for taking an overdose of pain medication. The hospital records indicated a bruise on Wife's leg. Although Wife told hospital personnel she received the bruise falling down stairs, she testified at trial that the plate-sized bruise was caused by the gearshift when Husband pulled her out of his car during the argument earlier that afternoon. According to Wife, Husband dragged her from the passenger seat, across the console, and out the driver's side of the vehicle.

There is more than a scintilla of evidence that husband's conduct included intentional and reckless acts that could cause emotional distress. This evidence is legally sufficient to support the jury's finding that Husband acted intentionally or recklessly to inflict emotional distress.

In reviewing the entire record for factual sufficiency of the evidence, we observe that the record includes contradictory evidence. Husband denied physically attacking or assaulting Wife during the marriage, but he did not dispute that many of the incidents occurred. He admitted he threw things, broke things, spit on Wife, argued at length with Wife, locked Wife out of the house, and poured various substances on Wife, but he remembered most of the incidents differently from Wife. He testified that Wife also argued, cursed, yelled, spit, and actively pursued their arguments. The parties' nineteen-year-old son testified by deposition that his parents argued a great deal, and he described the environment in his home as "sick." While he blamed both parents equally for the intensity of their arguments, the son recalled several incidents that confirmed Wife's testimony, including seeing Husband destroy Wife's personal property, seeing bruises on Wife, and seeing Wife covered in Nyquil or liquid Tylenol. He never observed Wife damage or destroy property or pour substances on Husband. Wife testified concerning bruises she attributed to Husband's abuse, and a neighbor testified she once observed Wife with bruises on her face. Husband's witnesses testified that Husband is a respected lawyer and businessman and that, in all his relationships with other people, he...