ROBERT LIVINGSTON v. CATHERINE LIVINGSTON

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Court of Appeals of Texas, Houston (1st Dist.).

ROBERT C. LIVINGSTON, Appellant v. CATHERINE LIVINGSTON, Appellee

NO. 01-16-00127-CV

Decided: September 21, 2017

Panel consists of Justices Jennings, Higley, and Massengale.

DISSENTING OPINION

Appellant Robert Livingston challenges the legal sufficiency of the evidence to support a permanent injunction. Appellant's Brief at 15–17. He filed a motion to disregard the jury verdict on the grounds that appellee Catherine Livingston was not entitled to recover on her intentional infliction of emotional distress cause of action. CR 69–71. This motion specifically stated that Catherine's “claim for recovery under an IIED allegation is an alternative claim” to her “assault and false imprisonment claims,” and as such she was “barred from any recovery under her IIED allegation and the claim should have never been submitted to the Jury.” CR 71 (citing Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 (Tex. 2005); Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447–48 (Tex. 2004); Draker v. Schreiber, 271 S.W.3d 318, 323 (Tex. App.—San Antonio 2008, no pet.)). This preserved the complaint for appeal. See, e.g., Pointe W. Ctr., LLC v. It's Alive, Inc., 476 S.W.3d 141, 148 (Tex. App.—Houston [1st Dist.] 2015).

“[A] claim for intentional infliction of emotional distress cannot be maintained when the risk that emotional distress will result is merely incidental to the commission of some other tort.” Standard Fruit & Vegetable Co., Inc. v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998). In approving the finding of intentional infliction of emotional distress in this case, the court relies on evidence of a phone call in which Robert threatened to “hurt” and “kill” Catherine. But an intentional threat of causing imminent bodily injury to another gives rise to the ordinary common-law tort of assault. See, e.g., Jones v. Shipley, 508 S.W. 766, 768–69 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).

“Where the gravamen of a plaintiff's complaint is really another tort, intentional infliction of emotional distress should not be available.” Zeltwanger, 144 S.W.3d at 447; see also Creditwatch, 157 S.W.3d at 816. No question should have been submitted to this jury on the tort of intentional infliction of emotional distress. The jury's answer on that question as incorrectly submitted in this case should have been disregarded. There was no legitimate jury finding of a wrongful act by Robert, and accordingly the permanent injunction against him was entered in error. Because the court concludes otherwise, I respectfully dissent.

Michael Massengale Justice

Justice Massengale, dissenting.