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Conley v. Driver10/25/2005
The twelve-or thirteen-year-old Gianna Driver thought her stepfather, James G. Conley, Sr., was going to be the father she had never really had. He encouraged her to excel and told her he loved her. But he began initiating sexual contact with her when she was thirteen or fourteen years old, and the sexual abuse continued for approximately three years. Then, after Driver had ended the three years of sexual encounters and had told her mother and others of the sexual abuse by her stepfather, Conley told Driver that he hated her, that she had ruined his life and his marriage, and that he would do everything in his power to ruin her life, including making copies of videotapes he had surreptitiously made of some of their sexual encounters and sending them to Driver's mother, boyfriend, family, and school.
Instead of fulfilling his threat, Conley sued Driver for defamation. Driver counterclaimed for assault and intentional infliction of emotional distress. Finding for Driver, the jury found that Driver should recover $150,000.00 in damages for assault and $150,000.00 in damages for intentional infliction of emotional distress. We affirm the judgment because (1) sufficient evidence supports the assault damages, (2) sufficient evidence supports the damages for intentional infliction of emotional distress, and (3) there was no error in awarding damages for both.
(1) Sufficient Evidence Supports the Assault Damages
When reviewing the legal sufficiency of the evidence to support facts found at trial, we will not set aside the judgment if there is any evidence of a probative nature to support it. Ray v. Farmers' State Bank, 576 S.W.2d 607, 609 (Tex. 1979). An appellate court cannot substitute its own findings of fact for those of the trial court if there is any evidence in the record to sustain the trial court's findings. Id.
In reviewing the trial court's findings for factual sufficiency, we consider all the evidence in the record, including any contrary to the trial court's judgment. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). The trial court's findings may be overturned only if they are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
There is no set formula for finding the value that should be awarded for enduring physical pain and mental anguish. The process of awarding damages for amorphous, discretionary injuries such as mental anguish or pain and suffering is inherently difficult because the alleged injury is a subjective, unliquidated, non-pecuniary loss. Dollison v. Hayes, 79 S.W.3d 246, 249 (Tex. App.---Texarkana 2002, no pet.). Because personal injury damages are unliquidated and are not capable of measurement by any certain standard, the jury has large discretion in fixing the amount of the award. SunBridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 248 (Tex. App.---Texarkana 2005, no pet.) (citing Texarkana Mem'l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 841 (Tex. 1997)); Dollison, 79 S.W.3d at 249; Phillips Petroleum Co. v. Burkett, 337 S.W.2d 856 (Tex. Civ. App.---Fort Worth 1960, writ ref'd n.r.e.). The measure of damages is a matter of opinion of the fact-finder, and courts in most instances have been reluctant to disturb the findings of a trial court or jury on such matters when there is any evidence to support the findings. George C. Vaughan & Sons v. Dyess, 323 S.W.2d 261 (Tex. Civ. App.---Texarkana 1959, writ dism'd); see also Baylor Med. Plaza Servs. Corp. v. Kidd, 834 S.W.2d 69, 78 (Tex. App.---Texarkana 1992, writ denied); Exxon Corp. v. Roberts, 724 S.W.2d 863 (Tex. App.---Texarkana 1986, writ ref'd n.r.e.).
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