Dennis J. Wilkerson v. Linett M. Wilkerson ( 2010 )

Opinion issued June 3, 2010

    In The  

Court of Appeals  

For The  

First District of Texas  

---

  NO. 01-09-00319-CV

__________

DENNIS J. WILKERSON, Appellant  

V.

LINETT M. WILKERSON, Appellee  

---

On Appeal from the 151st District Court

Harris County, Texas

Trial Court Cause No. 2009-11524  

---

DISSENTING OPINION  

          In this case, the trial court expressly recognized that the application of appellee, Linett M. Wilkerson, for a family violence protective order in her underlying lawsuit   against appellant, Dennis J. Wilkerson, for breach of contract, breach of fiduciary duty, and a valuation of their respective interests in certain business entities could have “some component of strategy” to “assassinate” Dennis’s character. A family violence protective order should never be sought in such a manner to gain leverage in civil litigation, especially when there is no evidence to support the issuance of such an order.

           There simply is no evidence in the record before us that Dennis, either acting alone or through his friend, Robert Lee “Buddy” Williams, did anything to reasonably place Linett or her children in fear of imminent physical harm, bodily injury, or assault. Significantly, from 2003 to 2009, Linett made no attempt whatsoever to contact law enforcement authorities for emergency assistance against either Dennis or Williams. At most, to the extent that the actions of Dennis and Williams may be interpreted as threats, they concerned threats of future harm, not “present” and “immediate” harm.

          Accordingly, I would hold that the evidence is legally insufficient to support the trial court’s issuance of a family protective order against Dennis and the trial court erred in entering the order and awarding Linett $98,560 in attorney’s fees and $14,030 in costs to obtain the order. The majority errs in holding to the contrary, and I respectfully dissent.

Imminent Danger

          In his third and fourth issues, Dennis argues that the evidence is legally insufficient to support the trial court’s issuance of a family violence protective order because there is no evidence that he engaged in conduct that “reasonably caused Linett to fear imminent physical harm or bodily injury.”   

          A legal sufficiency challenge to a family violence protective order, like any other legal sufficiency challenge, may be sustained only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Clements v. Haskovec, 251 S.W.3d 79, 84 (Tex. App.—Corpus Christi 2008, no pet.). In reviewing the legal sufficiency of the evidence, a court must consider the evidence in the light most favorable to the finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). “[L]egal-sufficiency review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.” Id. at 827. If the evidence allows only one inference, neither the trier of fact nor the reviewing court may disregard it. Id. at 822. Moreover, “[w]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). However, a reviewing court cannot substitute its judgment for that of the trier of fact, so long as the evidence falls within the zone of reasonable disagreement. Id. Moreover, the fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Vongontard v. Tippit, 137 S.W.3d 109, 113 (Tex. App.—Houston [1st Dist.] 2004, no pet.). We will not substitute our judgment for that of the fact finder merely because we might reach a different conclusion. Id.            A trial court must issue a family violence protective order if it “finds that family violence has occurred and is likely to occur in the future.” Tex. Fam. Code Ann. § 81.001 (Vernon 2002); see also id. § 85.001(b) (Vernon 2002). The Texas Family Code defines “family violence” as

an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, . . .

Id. § 71.004(1) (Vernon 2008) (emphasis added). Thus, our focus should be on evidence of any threats made by Dennis or anyone acting on his behalf that “reasonably” placed Linnet and her children “in fear of imminent physical harm, bodily injury, [or] assault” and the likelihood that such threats, if made, would reoccur in the future. Id. §§ 71.004(1), 81.001.   

          The Texas Court of Criminal Appeals and this Court have construed the term “imminent” to refer to “a present threat, not a future threat of bodily injury or death.” Robertson v. State, 175 S.W.3d 359, 362 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (citing Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989)). “Imminent” means “near at hand; mediate rather than immediate; close rather than touching; impending; on the point of happening; threatening; menacing; perilous.” Devine, 786 S.W.2d at 270 (quoting Black’s Law Dictionary 676 (rev. 5th ed. 1979)). In other words, “imminent” means “ready to take place, near at hand, impending, hanging threateningly over one’s head, menacingly near.” Id. at 270. It refers to a present, not a future, threat of harm. Anguish v. State, 991 S.W.2d 883, 886 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). The threat must be of present injury, rather than of some future consequence. Brown v. State, 960 S.W.2d 265, 269 n.1 (Tex. App.—Corpus Christi 1997, no pet.). Thus, the pertinent question is whether Linett was reasonably placed in fear of “imminent” physical harm, bodily injury, or assault at the time any threat was made.

          Here, there is nothing in the record to show that Linett or her children were ever threatened by Dennis or Williams with imminent physical harm, bodily injury, or assault from 2003 to February 2009, when she first applied for a family protective order in the underlying litigation without ever having contacted law enforcement officials for emergency assistance.

          First, in regard to the 2003 incident in which Dennis, according to Linett, expressed his anger about her intention to learn about the family businesses and then shot some beer cans from her gazebo and told her “I never miss” and “I always have plenty of ammunition,” Linett did explain that she felt threatened and believed that Dennis was capable of causing bodily injury to her and her children. However, there is no evidence that Dennis pointed his firearm at Linett or said anything to imply that she or her children were in imminent danger. Even excluding Dennis’s testimony that he merely showed Linett how to use a gun, any “feeling” that Linett had that Dennis was “going to kill” her during this encounter was not reasonable considering the facts that she apparently followed Dennis out to the gazebo and then to his car and did not call for emergency assistance at the time or anytime thereafter. Rather, Linett waited over five years after this alleged incident to file her application in the underlying litigation for a protective order seeking relief based, in large part, upon this 2003 incident. In fact, on cross-examination, Linett admitted that after this 2003 incident she and her family visited Dennis’s house for a holiday celebration, and, as discussed in more depth below, Linett spent significant amounts of time working at Augusta Pines on a daily basis near and around Dennis. The trial court, acting as the fact finder, was not free to ignore Linett’s own testimony about how she behaved during and after the incident. See City of Keller, 168 S.W.3d at 827.

          Second, Linett did testify that, in 2004, Dennis, after she had actually begun working at Augusta Pines, told Linett that she was not to “get in his way,” to ask first if she needed anything, and, if she got in his way, “something would happen to her.” She also testified, without providing any time references or any details, that Dennis had “threatened” her “over nine times.” However, nothing in her testimony established that anything said to her by Dennis while she was working at Augusta Pines demonstrated that Dennis reasonably placed her in fear of imminent physical harm. In fact, disregarding Dennis’s testimony that Linett had become disruptive at Augusta Pines, Linett’s own testimony establishes that she continued to return to Augusta Pines for accounting information and later for shareholder meetings, she never contacted law enforcement authorities for emergency assistance, and, in fact, Dennis told her that he would call for emergency assistance if she did not leave the premises. Again, the trial court, acting as the fact finder, was not free to ignore Linett’s own testimony about what occurred at Augusta Pines. See id.

          Finally, in regard to Williams, Linett did testify that Williams did come to her house and told her that “anything” could happen to her and “[w]e can take your children hunting and there can be an accident.” Linett also testified that she felt unsafe meeting with Williams by herself at a restaurant so she had a private investigator accompany her and watch from a distance. Linett further testified that she subsequently received a telephone call from her son, who told her that Williams, who had a gun and was intoxicated, had come to their house looking for her. Her son also testified that, while Williams was at Linett’s home, he “felt threatened.”

          However, Linett’s son also testified that Williams made no verbal threat against him or Linett during this visit, he was not afraid of Williams and did not believe that Williams intended to hurt him during this visit, and he did not believe that Williams intended to hurt his mother that evening. He explained that Williams had greeted him “really warmly” and, when Williams patted his gun “really gently,” he did not think Williams would pull it out. Also, Linett’s own investigator testified that, although, during the meeting at the restaurant, Linett appeared to feel threatened, he did not see Williams take any overt action that threatened Linett at that time with imminent harm.           When viewed in the light most favorable to the trial court’s findings, none of the actions of Williams could have reasonably placed Linett or her children in fear of imminent harm. Any perceived threats concerned future, not imminent physical harm. Moreover, the trial court, acting as a fact finder, was not free to disregard the testimony of Linett’s own son that he was not afraid of Williams and did not believe that Williams would hurt him. See id. Nor was it free to disregard the testimony of Linett’s own investigator that he did not see Williams make any overt threats during the meeting at the restaurant between Williams and Linett. See id.

          In sum, there is no evidence that Dennis, either acting alone or through Williams, did anything to reasonably place Linett or her children in fear of imminent physical harm, bodily injury, or assault. At most, to the extent that the actions of Dennis and Williams may be interpreted as threats, they concerned threats of future harm, not “present” and “immediate” harm. In fact, from 2003 to 2009, Linett did not contact law enforcement authorities for emergency assistance against either Dennis or Williams, a critical fact that the trial court was not free to disregard. See id. Accordingly, I would hold that the evidence is legally insufficient to support the trial court’s issuance of a family protective order against Dennis and the trial court erred in entering the order. I would sustain Dennis’s third and fourth issues.

Attorney’s Fees

          In an issue presented in a supplemental brief, Dennis argues that “if the family violence protective order is reversed on appeal,” the trial court’s order awarding attorney’s fees to Linett must also be reversed. Linett asserts that the trial court’s award of fees, expenses, and costs “was not contingent on success on appeal” and “there is no provision for the appeal of the court’s mandatory award of attorney’s fees.”

          After entering the protective order, the trial court issued an order modifying the protective order and requiring Dennis to pay Linett $98,560 in attorney’s fees and $14,030 in costs. The trial court cited, as the basis for its award of fees and costs, sections 81.003 and 81.005(a) of the Texas Family Code. Section 81.003, entitled “Fees and Costs Paid by Party Found to Have Committed Family Violence,” provides

(a)     Except on a showing of good cause or of the indigence of a party found to have committed family violence, the court shall require in a protective order that the party against whom the order is rendered pay the $16 protective order fee, the standard fees charged by the clerk of the court in a general civil proceeding for the cost of serving the order, the costs of court, and all other fees, charges, or expenses incurred in connection with the protective order.

Tex. Fam. Code Ann. § 81.003 (Vernon 2008). Section 81.005, entitled “Attorney’s Fees,” provides, that a “court may assess reasonable attorney’s fees against the party found to have committed family violence.” Id. § 81.005(a) (Vernon 2008).

          Sections 81.003 and 81.005 provided the trial court with the authority to award Linett her attorney’s fees and costs based upon a finding of family violence. Because the evidence is legally insufficient to support the trial court’s issuance of the family violence protective order against Dennis and the trial court erred in entering the order, I would further hold that the trial court had no authority to award Linett her attorney’s fees and costs. Accordingly, I would reverse the trial court’s award of fees and costs to Linett. See Harrison v. Williams Dental Group, P.C., 140 S.W.3d 912, 918 (Tex. App.—Dallas 2004, no pet.) (holding that court of appeals could not affirm award of attorney’s fees when it reversed judgment on breach of contract claim, which served as only basis for award of fees). I would sustain Dennis’s issue raised in his supplemental brief.

Conclusion

          Because the evidence is legally insufficient to support the trial court’s issuance of the family violence protective order against Dennis, I would vacate the trial court’s family violence protective order and its order awarding Linett attorney’s fees and costs.

                                                                        Terry Jennings

                                                                        Justice

Panel consists of Justices Jennings, Higley, and Sharp.

Justice Jennings, dissenting.