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 2006-01

Bostow, Wayne v. Bank of America ( 2006 )


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  • Affirmed as Modified and Memorandum Opinion filed January 17, 2006

    Affirmed as Modified and Memorandum Opinion filed January 17, 2006.

     

     

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    NO. 14-04-00256-CV

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    WAYNE BOSTOW, Appellant

     

    V.

     

    BANK OF AMERICA, Appellee

    _________________________________________________________________

     

    On Appeal from the 157th District Court

    Harris County, Texas

    Trial Court Cause No. 01-46935

    _________________________________________________________________

     

    M E M O R A N D U M   O P I N I O N

    This case arises out of a dispute between a bank and a depositor that culminated in a lawsuit by the bank to terminate its banking relationship with the depositor.  The trial court entered a temporary injunction to stop the depositor Afrom unilaterally acting to keep deposit accounts open.@  The depositor filed counterclaims asserting breach of the deposit agreement and a variety of tort claims.  After a trial, the jury found (1) the bank failed to comply with the deposit agreement and (2) the depositor improperly continued to make deposits in his accounts to keep the accounts open.  In nine appellate issues, the depositor now challenges the trial court=s judgment and its rulings on various pretrial matters.  We find merit in only one of the depositor=s appellate pointsChis contention that he is entitled to post-judgment interest at the legal interest rate of five percent per year.  Accordingly, we reform the judgment to reflect this post-judgment interest rate, and, as modified, we affirm the judgment.[1]

    I.  Factual and Procedural Background

    Appellant/defendant Wayne Bostow maintained deposit accounts at appellee/plaintiff Bank of America (hereinafter the ABank@). The parties agreed that their written Deposit Agreement would govern all deposit accounts Bostow established with the Bank.  In the Deposit Agreement, the parties expressly agreed that the Bank Amay terminate this agreement and close [Bostow=s] account at any time without prior notice.@

    Notification of the Bank=s Termination of the Banking Relationship

    At some point in 1998, Bostow experienced problems with his accounts at the Bank.  He claimed to have discovered discrepancies in the Bank=s recordkeeping and complained about it to various representatives of the Bank. The parties engaged in a series of communications that culminated in the Bank informing Bostow, in March 1999, that under the Deposit Agreement, the Bank had elected to terminate its banking relationship with Bostow.  Although the Bank attempted to close Bostow=s accounts, Bostow managed to keep them open by making deposits after the Bank informed him the accounts would be closed. 


    Depositor=s Conduct After Notification of Termination of Banking Relationship

    Over the next two years, Bostow wrote many letters and also engaged in many face-to-face communications with several of the Bank=s managers and tellers.  The Bank alleged that during this time, Bostow harassed or intimidated its employees and engaged in other conduct the Bank deemed threatening or otherwise inappropriate.  For example, in December 2000, Raymond Jackson, an officer in the Bank=s corporate security department, received a complaint from one of the banking centers that Bostow was possibly stalking one of the Bank=s tellers.[2]  The Bank=s management decided to transfer the teller to the motor bank, which is a separate building, Aso there wouldn=t have to be a face-to-face confrontation@ between the teller and Bostow.

    A few days after the teller=s initial complaint about Bostow, the Bank wrote Bostow a letter, again advising him that the Bank had elected to close his accounts and also asking him to refrain from making further deposits or writing additional checks. Additionally, the Bank asked Bostow to make other banking arrangements. Bostow refused to accept the Bank=s letter, and it was returned unopened to the Bank.  The Bank sent other letters to Bostow and these, too, were returned unopened.  Bostow indicated in a January 2001 letter explaining the return of these items that he would accept mail only from a Aserviceable address@ and Anot a post office box.@ The next week the Bank sent Bostow a cashier=s check to close his certificate of deposit.  However, the matter still was not resolved.

    The Bank and Bostow continued to correspond.  Bostow complained about the treatment he had received from the Bank=s corporate security officer (Jackson) and asked that his case be reassigned to someone authorized to restore his account status at the Bank.  Through Brian Anderson, its Executive Customer Relations Officer, the Bank reiterated that it had elected to terminate its banking relationship with Bostow and requested Bostow to make arrangements to remove items from his safe deposit box and return the key to the Bank.  Shortly thereafter, the Bank wrote Bostow another letter requesting that he no longer come onto the Bank=s property.

    Despite the Bank=s many requests, Bostow continued to make deposits to his accounts. Although Bostow=s accounts had a Aclosed@ status in the Bank=s system, Bostow could activate the accounts by making deposits.  Apparently, the Bank=s internal system permitted this activity and so it proved very difficult for the Bank to bring its banking relationship with Bostow to an end. After the Bank advised Bostow that his accounts were closed, Bostow continued to make very small deposits.  Consequently, even though Bostow=s accounts had been Aclosed,@ he was able to keep them open by making these deposits.

    In May 2001, Bostow sent a letter to one of the Bank=s branch managers offering to take him to lunch.[3]  The Bank did not change its decision to terminate the banking relationship.  In July 2001, the Bank received another letter from Bostow that created a security concern because it contained references to American submarines killing Japanese civilians, Peruvian fighters shooting down missionary planes, American bombers killing soldiers in Kuwait, and the Challenger coming flaming down to earth.


    The next month, Bostow wrote to a Bank associate complaining of the Bank=s correspondence and stating, AI hold you personally responsible for any activities taken by the bank personnel . . . which I guess is you, for false arrest, false and malicious statements, account theft, delays, humiliation and the like, most especially at your branch.@ Bostow=s letter stated, A[I]n the Army, they used to tell us about the easy way and the hard way.  (Of course, the easy way was only easy by comparison.)@ The Bank=s security officer (Jackson) testified that he was concerned about Bostow=s actions and the Aprevious letter and rambling about killings and murders and things going on in the world.@ Bostow=s letter continued, AObviously you wish I could just go somewhere else and leave you alone . . . let me assure you that will not happen.@ The Bank=s security officer interpreted the statement as a threat, explaining that, as an investigator, he believed Athat the people at [the Bank] might be subject to danger by Mr. Bostow.@[4] The Bank=s security officer wanted no further communication with Bostow after this incident.  In his letter, Bostow stated that if the Bank Areally wants me to leave, it needs to reach a legal agreement of termination or seek proper legal means to expel and keep me out.@ After more than two years of unsuccessful attempts to terminate its banking relationship with Bostow, the Bank did just that.

    The Bank=s Suit for Injunctive Relief

    In September 2001, the Bank sued for injunctive relief.  In a section of the petition entitled AClaim,@ the Bank alleges, among other things, the following:

    Bostow has engaged in a consistent pattern of harassment and abuse towards  [the Bank] and its employees. . .[The Bank] has attempted to close Bostow=s accounts on several occasions during the last two (2) years.  However, Bostow has figured out how to evade the internal measures for closing an account, and has thereby, through deliberate acts, managed to keep his accounts open by making inconsequential deposits and transactions.

    Although informed that his accounts have been closed, Bostow refuses to accept this fact and harasses [the Bank] and its employees.  Instead of seeking a resolution in a normal manner, Bostow writes threatening letters and stalks [Bank] employees.  His actions have disturbed the day to day activities of [the Bank] and of its employees.  These actions have required that some employees be transferred to other locations that do not require direct contact with any customers.

    Bostow has contacted [Bank] employees via their personal e-mail and has been seen waiting in his car, observing employees near quitting time.  Bostow=s actions have caused these employees to fear for their personal safety.

    Attached as Exhibits [to this petition] are copies of two recent letters sent by Bostow and received by [the Bank].  These letters demonstrate Bostow=s attitude and show his intent to harass [the Bank].

    [The Bank] seeks a temporary restraining order, and a preliminary and permanent injunction against Bostow.  The injunction is to enjoin Bostow from committing any acts to maintain and keep open any [Bank] accounts he may have.  This injunction is also for the purpose of enjoining Bostow from entering any [Bank] branches, and to enjoin Bostow from communicating with any [Bank] employees.

     

    The trial court signed an ex parte temporary restraining order (ATRO@) restraining Bostow from communicating with the Bank and its employees in writing, by telephone, by e-mail, by oral conversation, or in any other manner, with the intent to annoy, harass, or threaten the Bank or its employees. In conjunction with the issuance of the TRO, the trial court ordered Bostow to appear and show cause why he should not be temporarily enjoined from engaging in the following activities:

    (a)       Entering any and all [Bank] branches to make any deposits or conduct any transactions for the purposes of maintaining and keeping open any [Bank] accounts in his name;

    (b)       Communicating with [the Bank] and/or its employees whether in writing, by telephone, by email, by oral conversation, or in any other manner, with the intent to annoy, harass or threaten [the Bank] and/or its employees;

    (c)       Walking, standing, sitting or otherwise being within five hundred (500) feet of any [Bank] location other than for the purpose of conducting business with other nearby businesses; and

    (d)       Interfering with the daily business of [the Bank].

     

    The trial court set the amount of the TRO bond at $500.  The trial court also set a hearing on the Bank=s application for a temporary injunction.

    After an evidentiary hearing, the trial court granted a temporary injunction restraining Bostow from engaging in the following activites:

    (a)       Entering any [Bank] branch to make any deposit or conduct any transaction for the purpose of maintaining and keeping open any [Bank] account in his name;

    (b)       Communicating with [the Bank] and/or its employees whether in writing, by telephone, by e-mail, by oral conversation, or in any other manner, with the intent to annoy, harass or threaten [the Bank] and/or its employees; and

    (c)       Interfering with the daily business of [the Bank].

     

    The trial court also ordered Bostow to communicate with the Bank=s counsel Afor the purpose of conveying all necessary information as is required to give full effect to the closure of any accounts of [Bostow] at [the Bank].@  The trial court ordered the TRO bond transferred to its new order and noted the Bank was not required to post any further bond for the temporary injunction.  Bostow did not appeal the temporary injunction.

    The Depositor=s Counterclaims

    After the trial court signed the temporary injunction, Bostow filed counterclaims against the Bank asserting breach of contract and various tort claims, including invasion of privacy, assault, conversion, interference with legitimate business, and unclean hands. Essentially, Bostow alleged that the Bank converted funds from his accounts, failed to respond to his complaints, invaded his privacy by allegedly spreading and publicizing confidential information regarding his accounts, interfered with his normal business routine, and allegedly allowed employees to engage in assaultive behavior toward him.

    Trial and Final Judgment

    The Bank moved for a bifurcated trial under section 41.009 of the Texas Civil Practice and Remedies Code, and the trial court granted the motion.  The case was tried to a jury, which found that the Bank failed to comply with the Deposit Agreement and that Bostow was damaged in the amount of $200.  The jury also found that Bostow improperly continued to make deposits in his accounts to keep the accounts open. The trial court signed a final judgment awarding Bostow damages of $200 on his contract claim and a take-nothing judgment in favor of the Bank on the rest of his claims.  The final judgment also contained a permanent injunction prohibiting Bostow from engaging in the following activites:

    1.         Entering any and all [Bank] branches to make any deposits, or conducting any transactions for the purposes of maintaining and keeping open any [Bank] accounts in his name;

    2.         Communicating with [the Bank] and/or its employees whether in writing, by telephone, by e-mail, by oral conversation, or in any other manner, with the intent to annoy, harass or threaten [the Bank] and/or its employees; and

    3.         Interfering with the daily business of [the Bank].

     

    Challenging the trial court=s judgment, Bostow raises nine issues on appeal, each of which is addressed below.

    II. Propriety of Permanent Injunction


    In his first issue, Bostow alleges there are no findings to support the minimum requirements of an extraordinary remedy and that earlier Aresults should be reversed due to unfair stigma resulting from false, spurious, and groundless charges@ in the original petition.  Many of Bostow=s arguments relate to the TRO.  There is no appeal from the issuance of a TRO.  See Nikolouzos v. St. Luke=s Episcopal Hosp., 162 S.W.3d 678, 680 (Tex. App.CHouston [14th Dist.] 2005, no pet.) (en banc).  Moreover, the TRO expired long before this court acquired jurisdiction of this case. Finally, Bostow did not appeal the temporary injunction. Thus, the issues Bostow raises regarding the alleged impropriety of the TRO and the temporary injunction are moot. See Isuani v. Manske-Sheffield Radiology Group, P.A., 802 S.W.2d 235, 236 (Tex. 1991). 

    Though Bostow forcefully asserts the permanent injunction was improperly issued, he fails to articulate a clear statement of his complaint on appeal.  Because he alleges generally that A[t]he grant of permanent injunctive relief does not meet legal tests,@ we treat the issue as an assertion that the trial court clearly abused its discretion in granting a permanent injunction based on the jury=s findings and the evidence at trial.

    Permanent injunctive relief is appropriate upon a showing of the following elements: (1) the existence of a wrongful act, (2) the existence of imminent harm, (3) the existence of irreparable injury, and (4) the absence of an adequate remedy at law.  Jim Rutherford Invs., Inc. v. Terramar Beach Cmty. Ass=n, 25 S.W.3d 845, 849 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  A court determining the appropriateness of a permanent injunction should balance the competing equities, including the public interest. See Triantaphysllis v. Gamble, 93 S.W.3d 398, 402 (Tex. App.CHouston [14th Dist.] 2002, pet. denied).

    In an appeal from a permanent injunction, the standard of review is clear abuse of discretion.  Tyra v. City of Houston, 822 S.W.2d 626, 631 (Tex. 1991); Harris County Emergency Serv. Dist. No. 1. v. Harris County Emergency Corps, 999 S.W.2d 163, 167 (Tex. App.CHouston [14th Dist.] 1999, no pet.).  A trial court abuses its discretion by (1) acting arbitrarily and unreasonably or (2) misapplying the law to the established facts of the case.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241B42 (Tex. 1985).  Although a party to an equitable action has the right to a trial by jury, only ultimate issues of fact are submitted for jury determination. The jury does not determine the expediency, necessity, or propriety of equitable relief. State v. Texas Pet Foods, Inc., 591 S.W.2d 800, 803 (Tex. 1979); Shields v. State, 27 S.W.3d 267, 272 (Tex. App.CAustin 2000, no pet.). The decision to grant an injunction based on ultimate issues of fact found by the jury is for the trial court itself exercising its chancery powers.  Texas Pet Foods, 591 S.W.2d at 803; Shields, 27 S.W.3d at 272.  The jury=s findings on issues of fact are binding; however, equitable principles and the appropriate relief to be afforded by equity are only to be applied by the court itself.  See Shields, 27 S.W.3d at 272.  Because the court alone fashions equitable relief, it is not always confined to the literal findings of the jury in designing the injunction.  Id.

    The jury found that Bostow improperly continued to make deposits in his accounts to keep the accounts open, and there is ample evidence in the record to support this finding.  The record also contains evidence that Bostow engaged in a series of oral and written communications with the Bank that culminated in Bostow=s statement that the Bank would need to pursue legal action to enforce the termination of the banking relationship. Bostow wrote letters containing statements the Bank reasonably construed as threatening.  He made at least one of the Bank=s tellers Avery, very uncomfortable@ causing the Bank to transfer her to a different location in order to avoid a face-to-face confrontation with Bostow. There were multiple complaints from Bank employees about Bostow, including one Astalking report@ that he was seen walking around the personal vehicle of a bank employee near the Bank=s closing time and that Ait scared everybody at the bank.@  Despite numerous requests from the Bank, Bostow refused to cooperate in closing his accounts and terminating his banking relationship.  Bostow=s failure and refusal to heed the Bank=s requests to cease and desist this type of activity is some evidence of his intent to engage in the conduct enjoined by the trial court.

    The Bank pleaded and proved a pattern of harassing conduct by Bostow in which Bostow repeatedly tried to continue his banking relationship with the Bank even after the Bank had terminated the relationship.  The jury=s verdict regarding Bostow=s harassing behavior in improperly continuing to make deposits to keep his accounts open constitutes a sufficient finding on the ultimate issue of fact.  Further, the evidence in the record supports the trial court=s decision to grant a permanent injunction based on this finding.  See Shields, 27 S.W.3d at 271B72.  Under the applicable standards of review, we conclude that the trial court did not clearly abuse its discretion in granting the permanent injunction in favor of the Bank. Accordingly, we overrule Bostow=s first issue.[5]

    III.  Alleged Denial of Trial by Jury

    In his second issue, Bostow asserts that the trial court made decisions on facts that were rightfully left to the jury.  Though his briefing lacks clarity and precision on this issue, Bostow seems to be asserting that the trial court erred in not allowing the jury to consider his tort claims.

    Bostow asserted four tort theories: (1) conversion; (2) assault; (3) invasion of privacy; and, (4) interference with legitimate business.  None of these theories was submitted to the jury.  Though Bostow now complains that the jury did not have an opportunity to consider these claims, there is no indication from the record that Bostow asserted his complaint in the trial court or that he requested jury submission of any tort theory.  Although he had the opportunity to do so, Bostow did not raise any of these four theories in his objections to the trial court=s charge, nor did he request submission of these issues to the jury. Therefore, Bostow has waived his complaint.  See In re A.V., 113 S.W.3d 355, 358 (Tex. 2003).

    Moreover, Bostow has failed to direct this court to any evidence in the record to support any of his tort claims.  Thus, even if Bostow had not waived his claims by failing to take appropriate action in the trial court, he has failed to offer record support to this court to show his entitlement to relief.

    As to the Bank=s motion for directed verdict, the trial judge stated, AI=m going to grant the Motion for Directed Verdict for the reasons I said earlier.@  The trial court requested counsel to provide an order. No written order appears in the record. Though Bostow claims error, he cites no authority requiring a separate written order granting a directed verdict. The effect of the trial court=s disposition of the motion is apparent in the jury charge in that no tort issue was submitted to the jury.  The record reflects that Bostow neither submitted proposed jury questions on his tort claims nor articulated any objection to the jury charge based upon these rejected tort theories.  We conclude Bostow failed to preserve any error with respect to the court=s charge.  See Tex. R. App. P. 33.1; In re A.V., 113 S.W.3d at 358 (stating  that party waived charge error objection on appeal by failing to object in trial court).  Accordingly, we overrule Bostow=s second issue.

    IV. Alleged Abandonment of Claim

    In his third issue, Bostow asserts the Bank (1) failed to submit a proposed jury charge which would have established the facts necessary for an injunction, (2) failed to object to a jury charge in Aphase one,@ which, he claims, could establish the facts to support a permanent injunction, and (3) later opposed a motion to continue with Aphase two@ of the bifurcated trial.  Bostow alleges that it was the Bank=s sole responsibility to present questions which could establish the facts necessary for an injunction and by failing to do so, the Bank abandoned its claim.

    Bostow=s argument lacks merit.  Although a litigant has the right to a trial by jury in an equitable action, only ultimate issues of fact are submitted for jury determination.  The jury does not determine the expediency, necessity, or propriety of equitable relief. Texas Pet Foods, Inc., 591 S.W.2d at 803.  As discussed above, the jury=s finding as to Bostow=s harassing conduct is a sufficient finding on the ultimate issues of fact to support the trial court=s exercise of discretion in granting a permanent injunction.  Thus, the Bank did not abandon its claim for injunctive relief by failing to submit fact questions to the jury that would support its entitlement to injunctive relief. Accordingly, we overrule Bostow=s third issue.

    V.  Depositor=s Counterclaims

    In his fourth issue, Bostow argues that fact issues involved in his counterclaims were not settled by the jury findings and Aremain alive.@ Bostow asserted claims for conversion, assault, invasion of privacy, and interference with business relationship. However, none of these claims were submitted to the jury, and there is no record that Bostow requested submission of any of these tort theories to the jury or raised any of these theories in his objections to the court=s charge.  Thus, any error was waived.  See Tex. R. App. P. 33.1.; Southwestern Bell Telephone Co. v. DeLanney, 809 S.W.2d 493, 495 (Tex. 1991) (holding that [appellant] waived any claim for breach of contract for failure to request jury questions on the breach of contract claim).  Accordingly, we overrule Bostow=s fourth issue.

    VI.  Adequacy of the Trial Court=s Record

    In his fifth issue, Bostow complains about the absence of a transcript from two hearings.  The first is the ex parte hearing on the TRO.  There is no transcript of this hearing; however, none is required. Moreover, no appeal lies from a TRO so, with or without a record, Bostow cannot challenge the TRO.  See Nikolouzos, 162 S.W.3d at 680.

    The other hearing presumably occurred on December 18, 2003, in connection with the Bank=s motion for entry of judgment four months after trial. The final judgment was signed the same day.  The record contains no explanation for the absence of a transcript.  Bostow has not shown that the absence of this record constitutes error.  Thus, we overrule Bostow=s fifth issue.

    VII. Form of Judgment

    In his sixth issue, Bostow asserts the final judgment does not award statutorily required interest and is otherwise defective.  He contends the trial court erred in not adequately responding to his requests Ato explain the judgment and to get it right.@ The Bank concedes that Bostow is entitled to interest at the legal rate on the judgment and suggests that the judgment be reformed to state a postjudgment interest rate of five percent per year. We sustain the portion of Bostow=s sixth issue challenging the postjudgment interest rate and reform the judgment to reflect a post-judgment interest rate of five percent per year.  See Darby v. Jefferson Life Ins. Co., 998 S.W.2d 622, 630 (Tex. App.CHouston [1st Dist.] 1995, no pet.).

    In his sixth issue, Bostow also argues that the permanent injunction is invalid because it does not state the reasons for issuance.  Texas Rule of Civil Procedure 683, entitled AForm and Scope of Injunction or Restraining Order,@ states:

    Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained. . . .

    Every order granting a temporary injunction shall include an order setting the cause for trial on the merits with respect to the ultimate relief sought.  The appeal of a temporary injunction shall constitute no cause for delay of the trial.

     

    Texas courts have applied this rule to temporary injunctions and to suits requesting ancillary injunctive relief; it does not apply to permanent injunctions.  See Qaddura v. Indo-European Foods, Inc., 141 S.W.3d 882, 891B92 (Tex. App.CDallas 2004, pet. denied); Shields, 27 S.W.3d at 273.  Accordingly, we overrule the remainder of Bostow=s sixth issue.           

    VIII.  Alleged Unconscionable Delay

    In his seventh issue, Bostow complains in very general terms about Aunconscionable delay@ in these proceedings, arguing simply that Ajustice delayed is justice denied.@ It is an unfortunate reality that civil litigation can be a lengthy, time-consuming process and that civil litigants sometimes experience delays in the prosecution and defense of their lawsuits. Bostow does not point to any out-of-the-ordinary delay or particular harm he has suffered as a consequence, nor does he expound on his Aunconscionable delay@ argument or otherwise develop this appellate point.  Further, Bostow does not cite to the record or to any authority to support his argument.  We conclude this issue lacks merit. Accordingly, we overrule Bostow=s seventh issue.

    IX. Sanctions

    In his eighth issue, Bostow challenges the trial court=s failure to impose sanctions against the Bank=s lawyer.  Bostow asserts that the trial court judge Aknew or should have known of the pathological lying@ of the Bank=s counsel, which Bostow alleges Ahas kept this process moving forward.@ Bostow refers to this alleged conduct by the Bank=s counsel as Aprosecutorial misconduct,@ a term traditionally used only in the context of criminal proceedings.  See Ex parte Davis, 957 S.W.2d 9, 22 (Tex. Crim. App. 1997).  Bostow argues that the trial court erred in not calling for sanctions hearings on its own motion and urges this court to find the trial court abused its discretion in not sua sponte imposing sanctions on the Bank=s counsel for the alleged Aprosecutorial misconduct.@

    A trial court has inherent power to impose sanctions on its own motion.  See In re Bennett, 960 S.W.2d 35, 40 (Tex. 1997).  This inherent power includes the discipline of attorney behavior through the imposition of sanctions sua sponte in appropriate cases.  Roberts v. Rose, 37 S.W.3d 31, 33 (Tex. App.CSan Antonio 2000, no pet.).   We review the trial court=s decision under an abuse-of-discretion standard.  Koslow=s v. Mackie, 796 S.W.2d 700, 704 (Tex. 1990).  Bostow argues the trial court abused its discretion in failing to sanction the Bank=s counsel for Apathological lying.@ Bostow has provided no record cites in support of his argument nor has he demonstrated that the trial court abused its discretion.  Accordingly, we overrule Bostow=s eighth issue.

    X. Injunction Bond

    In his final issue, Bostow challenges the adequacy of the bond for the temporary injunction and asserts this court should set the injunction bond to what it would have been Ahad the truth been told at the original ex parte hearing@ and enter a finding of wrongful injunction.  The issuance of the TRO and the temporary injunction were rendered moot by the trial court=s issuance of the permanent injunction.  See Isuani, 802 S.W.2d at 236 (holding the appeals court erred in reaching merits of interlocutory appeal of temporary injunction after trial court entered permanent injunction rendering temporary injunction moot).  Bostow may not challenge the propriety of these orders in this appeal.  We find these points moot and overrule Bostow=s ninth issue.

    XI.  Conclusion

    After reviewing the appellate record, we conclude that, except for that portion of the sixth issue challenging the lack of postjudgment interest, Bostow=s appellate issues lack merit. We reform the trial court=s judgment to award post-judgment interest at the rate of five percent per year and affirm the judgment as modified.

     

    /s/        Kem Thompson Frost

    Justice

     

    Judgment rendered and Memorandum Opinion filed January 17, 2006.

    Panel consists of Chief Justice Hedges and Justices Fowler and Frost.

     

     


    [1]  This issue is not disputed by appellee Bank of America.

    [2]  According to the security officer, Bostow was being Aoverly friendly@ with one particular teller and letting other customers pass him in line so that he could go to this one teller; Bostow=s remarks and comments to the teller were getting more personal, Apast the normal course of doing business, which made this associate [teller] very uncomfortable.@  The teller felt Avery, very uncomfortable@ by Bostow=s Avery personal questions to her@ and reported the incident to her manager, who, in turn, called the Bank=s corporate security officer.  The security officer testified that when Bostow was seen walking around the teller=s personal vehicle close to quitting time Ait scared everybody in the bank.@

    [3]  Bostow asked the banker for the opportunity to take him along with Aa couple of other branch managers, and a representative from Security to lunch . . . [to] discuss the past and future of the bank, its Policies and Procedures both theoretical and in practice, and any leadership [the bank employee] or others might exert to implement the transformation called for by your new chairman.@

    [4]  Bostow maintained that Ahe had never been made aware that any fear or apprehension was involved prior to the lawsuit@ and that he Anever intended to upset anyone.@ 

    [5]  In his first issue, Bostow also asserts that, even if his conduct were considered wrongful, no finding negates the likelihood that his behavior was Aoffset, justified, and excused by the [B]ank=s breach of contract and failure to communicate.@  Again, the evidence in the record is sufficient to support the trial court=s granting of a permanent injunction.