Opinion
No. 05-08-00397-CV
Opinion issued May 29, 2009.
On Appeal from the 196th Judicial District Court Hunt County, Texas, Trial Court Cause No. 72,155.
Before Justices BRIDGES, FITZGERALD, and O'NEILL.
Opinion By Justice FITZGERALD.
MEMORANDUM OPINION
Christi Lambert sued her ex-husband Mark Lambert for intentional infliction of emotional distress and conversion after he allegedly broke into her house, stole some items, and left some notes for her to discover. After a bench trial, the judge awarded Christi $131,132.57 in actual damages and $100,000 in exemplary damages. Mark appeals, challenging the sufficiency of the pleadings, the sufficiency of the evidence, and the size of the award of exemplary damages. We affirm.
I. Background
Christi and Mark's divorce decree was signed in March 2007. An arbitration followed, which led to the trial court's signing a further "final decree of divorce with arbitration ruling" on July 12, 2007. Christi filed an original petition for damages in the divorce case on July 12, 2007. Christi alleged that Mark broke into her house on or about June 8, 2007 and took personal property belonging to her. She invoked several theories of liability, including conversion and intentional infliction of emotional distress. She prayed for actual and exemplary damages. The case was tried to the bench in October 2007. In December 2007, the judge signed a judgment awarding Christi $31,132.57 in actual damages and $200,000 in exemplary damages.
Mark timely filed a motion to reform the judgment and for new trial in which he argued, among other things, that the award of exemplary damages was unconstitutionally excessive. The judge later signed findings of fact and conclusions of law in support of the December 2007 judgment. Christi filed a response to Mark's motion to reform the judgment in which she suggested that the trial court could remedy any constitutional violation by signing an amended judgment awarding her an additional $50,000 in actual damages for past mental anguish, an additional $50,000 in actual damages for future mental anguish, and reducing the award of exemplary damages to $100,000.
On February 21, 2008, the trial judge signed a "reformed final judgment" awarding Christi $131,132.57 in actual damages and $100,000 in exemplary damages. On that same date, he signed amended findings of fact and conclusions of law in support of the new judgment. The judge found that Mark had caused Christi $31,132.57 in economic damages, $75,000 in past mental anguish damages, and $25,000 in future mental anguish damages. Mark appeals, raising four issues.
II. Sufficiency of the Pleadings
In his first issue, Mark argues that the judgment is fatally defective because Christi's pleadings do not support the judgment. See Tex. R. Civ. P. 301 ("The judgment of the court shall conform to the pleadings[.]"); Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983) ("[A] judgment must be supported by the pleadings and, if not so supported, it is erroneous."). But in his argument in support of his first issue, he points out no discrepancy or conflict between Christi's pleadings and the judgment. Rather, he argues that the trial court's findings suggest that the trial court awarded Christi damages in part based on harm suffered by Mark and Christi's children, even though Christi alone is identified in her pleading as the plaintiff. For example, the judge found, "By the preponderance of the evidence and by clear and convincing evidence, Mark James Lambert did, by extreme and outrageous conduct, intentionally and recklessly inflict severe emotional distress upon Christi Danna Lambert [and their four children]."
Mark cites no authority to support the proposition that we should consult the trial court's findings to ascertain whether the judgment is supported by the pleadings, and we have found none. We conclude that our analysis should be limited to the pleadings and the judgment. Cf. Khalaf v. Williams, 814 S.W.2d 854, 858 (Tex.App. 1991, no writ) ("In determining whether the judgment conformed to the pleadings, an appellate court should view the pleadings as a whole."). The judgment awarding actual and exemplary damages to Christi is supported by her petition requesting the court to award her those kinds of damages. We overrule Mark's first issue on appeal.
III. Liability and Actual Damages Issues
In his remaining three issues, Mark challenges the legal and factual sufficiency of the evidence to support the trial court's findings of fact eight, nine, and ten. Those findings are as follows:
8. Christi Danna Lambert sustained non-economic damages in the form of past mental anguish in the amount of $75,000.00 as a result of the conduct of Mark James Lambert as found by the Court in Findings of Fact numbers 1, 2, 3, 4 and 5.
9. Christi Danna Lambert sustained non-economic damages in the form of future mental anguish in the amount of $25,000.00 as a result of the conduct of Mark James Lambert as found by the Court in Findings of Fact numbers 1, 2, 3, 4 and 5.
10. The sum of $100,000.00, if paid now in cash, should be assessed against Mark James Lambert and awarded to Christi Danna Lambert as exemplary damages for his conduct found in the Findings of Fact numbers 1, 2, 3, 4 and 5, above.
His arguments are somewhat broader than his issues would suggest, but we conclude that they are fairly included as "subsidiary questions" within these issues. See Tex. R. App. P. 38.1(f) ("The statement of an issue or point will be treated as covering every subsidiary question that is fairly included."). In this part of the opinion, we will address all of Mark's arguments challenging the trial court's liability and actual-damages findings. We will address Mark's attacks on the exemplary-damages award in Part IV.
A.
Propriety of the mental-anguish damages findings
In his first argument, Mark complains that the trial court implicitly and improperly awarded mental-anguish damages to Christi based on mental anguish actually suffered by their children. He relies on the following chain of reasoning. In the mental-anguish findings, which are findings eight and nine, the court found that Mark's conduct as found in findings one through five caused Christi mental-anguish damages. In findings one through five, the trial court found (1) Mark maliciously committed the elements of intentional infliction of emotional distress against Christi and their four children, and (2) Mark maliciously committed conversion against Christi. Because the court found that Mark committed intentional infliction of emotional distress against both Christi and their children, Mark reasons, the court implicitly and improperly awarded mental-anguish damages to Christi based on the mental anguish suffered by the children.
We reject Mark's argument. In findings eight and nine, quoted above, the trial court found that Christi herself had sustained and in the future would sustain mental-anguish damages as a result of Mark's extreme and outrageous conduct and his conversion of her property. The court's findings that Mark's conduct also amounted to extreme and outrageous conduct against his children are perhaps immaterial, but they do not impeach or conflict with its findings that Christi herself suffered compensable mental anguish caused by Mark's conduct. Thus, we may disregard the findings about the children. See Probus Properties v. Kirby, 200 S.W.3d 258, 264 (Tex.App. 2006, pet. denied) ("An appellate court may disregard a jury finding on a question that is immaterial."). In findings eight and nine, the trial court expressly found that Christi herself suffered mental-anguish "as a result of the [extreme and outrageous] conduct of Mark James Lambert," and it found the specific amounts of damages necessary to compensate her for that anguish. We conclude that the findings of fact, reasonably construed, do not support Mark's contention that the trial court awarded damages to Christi in compensation for mental anguish actually suffered by their children.
B.
Standard of review for sufficiency of the evidence
We review the legal and factual sufficiency of the evidence to support a trial court's findings of fact under the same standards applicable to a jury's verdict. Ashcraft v. Lookadoo, 952 S.W.2d 907, 910 (Tex.App. 1997) (en banc), writ denied per curiam, 977 S.W.2d 562 (Tex. 1998). In a legal-sufficiency review, we view the evidence in the light most favorable to the findings, crediting all evidence favorable to the finding if a reasonable fact-finder could and disregarding all unfavorable evidence unless a reasonable fact-finder could not. If more than a scintilla of evidence supports the finding, the legal-sufficiency challenge fails. Long v. Long, 196 S.W.3d 460, 464 (Tex.App. 2006, no pet.). In a factual-sufficiency review, we review all of the evidence and set the finding aside only if the evidence that supports the finding is so weak as to be clearly wrong and manifestly unjust. Id. We apply the factual-sufficiency standard to a complaint that damages are excessive. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998). C. Sufficiency analysis 1. Liability findings
Mark argues that Christi adduced no evidence that her mental anguish was severe enough to be compensable. Severe emotional distress is an essential element of a claim for intentional infliction of emotional distress. Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex. 1993). "Severe emotional distress is distress so severe that no reasonable person could be expected to endure it." GTE S.W., Inc. v. Bruce, 998 S.W.2d 605, 618 (Tex. 1999). For example, we have held that a plaintiff adduced sufficient evidence of severe emotional distress by introducing evidence that her husband's abusive behavior left her feeling worthless and ashamed, that as a result she ground her teeth and cracked some of them, and that she suffered from depression and post-traumatic stress disorder. Toles v. Toles, 45 S.W.3d 252, 263 (Tex.App. 2001, pet. denied). Another court of appeals has held that a plaintiff's emotional distress was sufficiently severe based on evidence that she suffered from "anxiety, depression, problems in dealing with her anger, and marital discord as a result of" the defendant's harassment, and an expert witness testified that she suffered from clinical depression and anxiety, "which channeled into somatic symptoms such as headaches, gastrointestinal difficulties, sleep disturbances, weakness, or fatigue." Clayton v. Wisener, 190 S.W.3d 685, 695 (Tex.App.-Tyler 2005, pet. denied). Another court of appeals has upheld a finding of severe emotional distress when a plaintiff produced evidence that her husband's abusive behavior caused her to cry a lot, that her personality changed from confident to insecure, and that she was suffering from depression and post-traumatic stress disorder. Ross v. Ross, No. 03-02-00771-CV, 2004 WL 792317, at *10 (Tex.App. April 15, 2004, no pet.) (mem. op.).
The record contains evidence that on June 8, 2007, Christi discovered that her home had been broken into and items stolen from it. Numerous personal items such as family videos and photographs had been taken, and the intruder had left notes in the home. Her sister-in-law testified that Christi was devastated and was crying uncontrollably at the time the burglary was discovered. Christi testified that after the burglary she suffered from weight gain, hair loss, "TMJ" caused by grinding her teeth, damage to her gums, loss of sleep, increased nightmares, fatigue, and depression. Her psychologist testified that he diagnosed her with "acute stress" after the incident, and he opined that Christi was traumatized, depressed, and stressed after the event. He recommended a year or more of future counseling directly related to the burglary. Her family physician diagnosed her with "stress anxiety syndrome with physical manifestations." The evidence is comparable to the evidence discussed in Toles, Clayton, and Ross. We conclude that the evidence that Christi suffered severe emotional distress is legally sufficient.
Next Mark argues that there is no evidence of causation. We reject this argument as well. The evidence shows that Christi suffered strong emotional distress immediately on discovering the burglary of her home. She testified that the physical side effects of her emotional distress began only after the burglary. Her family physician testified that, in reasonable medical probability, the burglary was the cause of Christi's stress, anxiety, and increased depression. Her psychologist testified that Christi needed a year of future counseling that was directly related to the burglary and that he would not recommend such counseling for her but for the burglary. We conclude that the evidence of causation is legally sufficient.
2.
Actual-damages findings
Mark next argues that the mental-anguish awards of $75,000 for past damages and $25,000 for future damages are excessive. He points out that Christi's counseling expenses after the burglary were only $120 (not including amounts paid by insurance) and that her estimated future counseling expenses would be only $5,200. He also directs us to Saenz v. Fidelity Guaranty Insurance Underwriters, in which the Texas Supreme Court held that the plaintiff had adduced no evidence of compensable mental anguish to support a $250,000 jury award. 925 S.W.2d 607, 613-14 (Tex. 1996). We reject Mark's argument. The evidence of emotional distress presented in Saenz amounted to nothing more than the plaintiff's brief testimony that she worried a lot. Id. at 614. Christi's evidence of severe emotional distress in this case was much more substantial, including both significant physical manifestations and expert testimony. Thus, Saenz is distinguishable. We also do not believe that the cost of counseling is particularly relevant to the calculation of noneconomic damages for "highly unpleasant mental reactions such as embarrassment, fright, horror, grief, shame, humiliation, and worry," all of which are encompassed within emotional distress. GTE S.W., Inc., 998 S.W.2d at 618. On the entire record, we conclude that $100,000 is not excessive and that sufficient evidence supports it as a fair and reasonable amount of compensation. Cf. Ross, 2004 WL 792317, at *12 (affirming mental-anguish award of $150,000); Bunton v. Bentley, 176 S.W.3d 18, 21 (Tex.App.-Tyler 2003) (remitting mental-anguish award to $150,000), aff'd in part, rev'd in part on other grounds, 153 S.W.3d 50 (Tex. 2004).
Finally, Mark argues that the trial court's award of actual damages improperly included the costs of family counseling in the amount of $5,320. He argues that the award was improper because it did not distinguish between the cost of counseling for Christi, the only plaintiff in the suit, and the cost of counseling for the parties' four children. The trial court found that Mark's conduct constituting intentional infliction of emotional distress caused Christi economic damages of $10,288.55 and that his conduct constituting conversion caused her economic damages of $20,844.02. The court did not make any more specific allocation of Christi's economic damages. Mark does not demonstrate that the trial court's award of economic damages necessarily includes any counseling expenses for the children, nor does he cite any evidence tending to prove his contention. We will not sift the record to ascertain whether an appellant's arguments have merit. Most Worshipful Prince Hall Grand Lodge v. Jackson, 732 S.W.2d 407, 412 (Tex.App. 1987, writ ref'd n.r.e.) (en banc).
We reject all of Mark's complaints regarding the liability findings and the awards of actual damages.
IV. Exemplary Damages Issues
Mark argues that the award of $100,000 in exemplary damages was excessive for two reasons. First, he argues that the relevant factors set forth in the Texas Civil Practice and Remedies Code do not support the award. Second, he argues that the award is unconstitutionally excessive.
In his reply brief, Mark asserts that he also adequately raised a challenge to the sufficiency of the evidence to support the trial court's two findings of malice on which the award of exemplary damage is predicated. We disagree. Within his extended argument challenging the size of the exemplary-damages award, he included a single sentence asserting that his bipolar disorder negated his ability to act with malice. He did not adequately brief any challenge to the malice findings. In re M.A.S., 233 S.W.3d 915, 924 (Tex.App. 2007, pet. denied) ("Failure to provide substantive analysis waives an issue on appeal.").
A.
Excessiveness under the Texas Civil Practice and Remedies Code
"[T]he amount of exemplary damages to be awarded is within the discretion of the trier of fact." Tex. Civ. Prac. Rem. Code Ann. § 41.010(b) (Vernon 2008). The following factors are relevant to the assessment of the amount of exemplary damages that should be assessed against a tortfeasor: (1) the nature of the wrong; (2) the character of the conduct involved; (3) the degree of culpability of the wrongdoer; (4) the situation and sensibilities of the parties concerned; (5) the extent to which the conduct offends a public sense of justice and propriety; and (6) the net worth of the defendant. Id. § 41.011(a). In our opinion we must "address the evidence or lack of evidence with specificity" as it relates to the statutory requirements. Id. § 41.013(a).
Mark does not dispute that the evidence supports the award with respect to the first two statutory factors. The evidence supports the conclusion that Mark committed conduct that amounted to burglary, a second-degree felony. Tex. Penal Code Ann. § 30.02(c)(2) (Vernon 2003). For example, the record includes evidence that Mark was familiar with the home's security system and that the intruder stole or rifled through items of a personal nature such as family photographs, videos, and papers relating to the parties' divorce. It also includes evidence that the intruder left notes in Mark's handwriting in the house. The evidence also shows that the intruder took the key to a gun safe in the house. This evidence supports the conclusion that Mark committed the burglary, that the nature of the wrong was serious, felonious conduct, and that the character of the conduct-home invasion, plus theft of numerous items having high sentimental value-was particularly likely to cause severe upset, distress, and fear in the victim.
As to the third factor, Mark argues that his degree of culpability is diminished by the fact that he suffers from bipolar disorder. Christi's psychologist testified that a person who suffers from bipolar disorder and does not get treatment or counseling is more likely to believe that nothing he does is wrong. There was no evidence, however, that Mark acted under the influence of bipolar disorder on this particular occasion, or that he did not understand the wrongful nature of his conduct at the time. Mark invoked his Fifth Amendment rights and refused to testify when called by Christi. He presented no witnesses of his own and introduced no evidence to show diminished culpability. Moreover, there was no evidence presented to show any culpability at all on the part of Christi. See Durban v. Guajardo, 79 S.W.3d 198, 210 (Tex.App. 2002, no pet.) (noting that defendant was "completely culpable" where jury rejected defendant's self-defense argument). We conclude that the evidence permitted the trial court to find that Mark was culpable for his conduct.
As for the situation and sensibilities of the parties, Mark argues that this factor weighs in his favor because no one was at home at the time of the burglary, and he again points out that the children were not parties to the suit. Nevertheless, the evidence showed that the burglary was highly injurious to Christi's sensibilities. Evidence showed that she was already suffering from some degree of stress before the burglary, and a reasonable fact-finder could certainly conclude that the details of this intrusion were highly likely to be particularly upsetting to Christi. The evidence showed the theft of many family photographs and videos of high sentimental value, the leaving of notes (including one that accused Christi of being a liar), and the theft of a key to a gun safe. The evidence also showed that a door lock was tampered with to make it appear that it was still effective when in fact it was not. The trial judge could reasonably have determined that the incident justified a significant award of exemplary damages on account of the situation and sensibilities of the parties.
Mark does not address the public sense of justice and propriety, but this factor weighs in favor of a substantial award of exemplary damages. The public sense of justice and propriety is highly offended by burglary and theft. Cf. Durban, 79 S.W.3d at 210 ("It should go without saying that [assault] is offensive in the extreme to the public's sense of justice and propriety.").
Finally, Mark argues that his net worth was so low as to make the award of exemplary damages excessive. As evidence, he relies on a sworn inventory that he filed in the divorce proceedings in November 2006. He contends that this inventory shows that his net worth at that time was $294,980.83. He further argues that his motion to reform judgment and for new trial shows that his net worth had declined to $176,147.32. But Mark did not introduce either of these documents into evidence at trial, and we cannot consider evidence that was not offered or admitted during the trial. See In re E.W., No. 05-01-01463-CV, 2002 WL 1265541, at *2 (Tex.App. June 7, 2002, pet. denied) (not designated for publication) ("Documents that are not introduced into evidence at trial are not part of the record and may not be considered on appeal."). Even though the trial court took judicial notice of its own file, that does not convert the parties' statements contained in court filings into substantive evidence. See Malekzadeh v. Malekzadeh, No. 14-05-00113-CV, 2007 WL 1892233, at *9 (Tex.App. July 3, 2007, pet. denied) (mem. op.) ("A court may take judicial notice that a pleading has been filed in the case, but may not take judicial notice of the truth of allegations in its records."). Even if we did consider the net-worth evidence Mark cites on appeal, it does not tend to show that the award of exemplary damages is excessive. Exemplary damages are awarded as a penalty or by way of punishment. Tex. Civ. Prac. Rem. Code Ann. § 41.001(5). Thus, the defendant's net worth is relevant because it affects the size of the penalty needed to accomplish punishment and deterrence. Durban, 79 S.W.3d at 210. The award of $100,000 in this case is less than Mark's net worth as he swore prior to trial. The court found by clear and convincing evidence that the conduct in question was "atrocious and utterly intolerable in a civilized community." The trial judge could reasonably have concluded that an award of this size was necessary to accomplish the purposes of deterrence and punishment.
We conclude that the trial court did not abuse its discretion by assessing exemplary damages against Mark in the amount of $100,000.
B.
Constitutionality of the size of the award
The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003). We assess the constitutionality of an award of exemplary damages by considering three guideposts: (1) the degree of reprehensibility of the defendant's misconduct, (2) the disparity between the actual or potential harm suffered by the plaintiff and the size of the award, and (3) the difference between the award and the civil penalties authorized or imposed in comparable cases. Id. at 418. We must use a de novo standard of review. Id.
The first guidepost is the most important. Id. at 419. In assessing reprehensibility, we consider matters such as whether the harm was physical or merely economic, whether the conduct showed reckless disregard for the health or safety of others, whether the target of the conduct was financially vulnerable, whether the conduct involved repeated actions or was an isolated incident, and whether the conduct involved intentional malice, trickery, deceit or mere accident. Bright v. Addison, 171 S.W.3d 588, 603 (Tex.App. 2005, pet. denied) (citing State Farm, 538 U.S. at 419). In this case, the harm inflicted was not merely economic. The harm included substantial emotional distress, resulting in physical manifestations. Mark's conduct showed reckless disregard both for Christi's mental and emotional well-being and for her property rights. The record does not show that Christi was particularly vulnerable financially or that the burglary was more than an isolated incident. But the record does show that the incident involved intentional conduct going far beyond mere accident. In all, we conclude that Mark's conduct was reprehensible enough to justify a substantial award of exemplary damages.
The second guidepost requires us to compare the size of the exemplary-damages award to the actual or potential harm suffered by the plaintiff. This comparison commonly involves analysis of the ratio between exemplary and actual damages. Single-digit ratios are more likely to comport with due process than larger ratios, but there are no rigid benchmarks in this area. State Farm, 538 U.S. at 425. The goal is to ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered. Id. at 426.
Mark argues that our ratio analysis should be influenced by the trial judge's first judgment, in which he awarded Christi $31,132.57 in actual damages and $200,000 in exemplary damages. He contends that the trial judge attempted to sidestep the ratio analysis by reallocating the numbers after Mark argued that the exemplary-damages award in the first judgment was constitutionally infirm. He cites no authority that we should engage in such motive analysis, and we are aware of none. The trial judge is free to amend the judgment as he sees fit during his plenary power. See Shelby Operating Co. v. City of Waskom, 964 S.W.2d 75, 80 (Tex.App. 1997, pet. denied) ("A trial court's jurisdictional power over its judgment [during the plenary-power period] is full, complete, absolute, and unqualified."). We conclude that our ratio analysis should be directed strictly to the amended final judgment. The $100,000 award of exemplary damages is less than the $131,132.57 award of actual damages. Accordingly, the second guidepost is not offended by the size of the exemplary-damages award.
The final guidepost is the disparity between the award of exemplary damages and the civil penalties authorized or imposed in comparable cases. State Farm, 538 U.S. at 428. Mark asserts that there is no relevant civil statutory penalty for his conduct, but he adds that he is subject to possible criminal prosecution, contempt, and denial of visitation with his children by the trial court. In the past, we have considered the exemplary-damages cap supplied by Chapter 41 of the civil practice and remedies code to be relevant to the third guidepost. Bright, 171 S.W.3d at 604; accord Parenti v. Moberg, No. 04-06-00497-CV, 2007 WL 1540952, at *9 (Tex.App. May 30, 2007, pet. denied) (mem. op.); Citizens Nat'l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 486 (Tex.App.-Fort Worth 2004, no pet.). That cap is never lower than $200,000, Tex. Civ. Prac. Rem. Code Ann. § 41.008(b), which is twice the amount of exemplary damages in this case. Thus, the third guidepost does not call this $100,000 exemplary-damages award into question.
We reject Mark's constitutional challenge to the amount of exemplary damages awarded.
V. Disposition
We overrule all of Mark's issues on appeal and affirm the judgment of the trial court.