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WILKERSON v. WILKERSON
GREGORY HOLLOWS, Magistrate Judge
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for continuing child disability benefits under Title XVI of the Social Security Act ("Act"). For the reasons that follow, plaintiff's Motion for Summary Judgment is granted. The Clerk is directed to enter judgment for the plaintiff.
BACKGROUND
Plaintiff, born May 6, 1987, received disability benefits until she reached 18 years of age based on borderline intellectual functioning, PTSD, ADHD, depression, severe anxiety, and anti-social behavior. (Tr. at 24, 72.) She was reevaluated and found no longer disabled on October 1, 2005. (Tr. at 73.) The Appeals Council denied plaintiff's request for review. In a decision dated March 24, 2008, ALJ Theodore T.N. Slocum determined plaintiff was no longer disabled. The ALJ made the following findings:
1. The claimant attained age 18 on May 5, 2005 and was eligible for supplemental security income benefits as a child for the month preceding the month in which she attained age 18. The claimant was notified that she was found no longer disabled as of October 1, 2005, based on a redetermination of disability under the rules for adults who file new applications.
2. Since October 1, 2005, the claimant has had the following severe impairments: anxiety, depression and Borderline Intellectual Functioning ( 20 CFR 416.920(c)).
3. Since October 1, 2005, the claimant has not had an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 ( 20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that, since October 1, 2005, the claimant had the residual functional capacity to perform simple repetitive low stress work at all exertional levels.
5. The Claimant has no past relevant work ( 20 CFR 416.965).
6. The claimant is a younger individual age 18-44 ( 20 CFR 416.963).
7. The claimant has a limited education and is able to communicate in English ( 20 CFR 416.964).
8. Transferability of job skills is not an issue because the claimant does not have past relevant work ( 20 CFR 416.968).
9. Since October 1, 2005, considering the claimant's age, education, work experience, and residual functional capacity, the claimant was able to perform a significant number of jobs in the national economy ( 20 CFR 416.960(c) and 416.966).
10. The claimant's disability ended on October 1, 2005, and the claimant has not become disabled again since that date ( 20 CFR 416.987(e) and 416.920(g)).
Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income is paid to disabled persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability, in part, as an "inability to engage in any substantial gainful activity" due to "a medically determinable physical or mental impairment. . . ." 42 U.S.C. §§ 423(d)(1)(a) 1382c(a)(3)(A). A parallel five-step sequential evaluation governs eligibility for benefits under both programs. See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287 (1987). The following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1995).
The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n. 5, 107 S. Ct. at 2294 n. 5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.
(Tr. at 11-19.)
ISSUES PRESENTED
Plaintiff has raised the following issues: A. Whether the ALJ Erred in Failing to Find that Plaintiff's Mental Impairment Met Listing 12.05C; B. Whether the ALJ Erred in Crediting Dr. Kahler's Internally Inconsistent Psychiatric Opinion and in Mischaracterizing the Evidence from Plaintiff's Treating Provider; C. Whether the Appeals Council Rejected the Opinions and Additional Evidence from Plaintiff's Treating Psychiatric Provider Without a Legitimate Basis; D. Whether the ALJ Failed to Credit Plaintiff's and Lay Witness Testimony Regarding Her Functional Limitations; and E. Whether the ALJ Erred in Utilizing the Grids and Not Securing Vocational Expert Testimony.
LEGAL STANDARDS
The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).
ANALYSIS
A. Listing 12.05
Plaintiff contends that she meets or equals Listing 12.05C. The ALJ determined in finding no. 3 of the decision that plaintiff's impairments did not meet or equal an impairment listed in the Regulations' "Listing of Impairments" ("Listings"), which lists impairments to thirteen categories of body systems which are severe enough to preclude any gainful activity. Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990); 20 C.F.R. § 404.1520(d). When all the requirements of a listing are met, the described condition is irrebuttably presumed disabling. Key v. Heckler, 754 F.2d 1545, 1550 (9th Cir. 1985); 20 C.F.R. § 404.1520(d).
At the third step of the disability analysis, the ALJ determines whether a person's condition either "meets" or "equals" a listing. A mere diagnosis of a listed impairment is not sufficient. Specific findings included in each listing also must be met. See, e.g., Key v. Heckler, 754 F.2d 1545, 1550 (9th Cir. 1985). Alternatively, other diagnostic tests, or the combined effects of various conditions, may demonstrate the "equivalent" of the specific required findings. See, e.g.,Sullivan v. Zebley, 493 U.S. 521, 531 (1990); Marcia v. Sullivan, 900 F.2d 172 (1990). In sum, however, unless an impairment is as severe as and has lasted as long as described in the listing, a person is not presumptively disabled. Young, 911 F.2d at 183.
Listing 12.05 provides in part:
Mental retardation refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22.
The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied.
. . .
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function;
. . .20 C.F.R. Pt. 404, Subpt. P., App. 1, § 12.05(c). (emphasis added).
"An impairment imposes a significant work-related limitation of function when its effect on a claimant's ability to perform basic work activities is more than slight or minimal." Fanning v. Bowen, 827 F.2d 631, 633 (9th Cir. 1987). This, in other words, is the definition of a "severe" impairment. Thus, in this circuit, a person who has a severe physical or other mental impairment, as defined at step two of the disability analysis, apart from the decreased intellectual function, meets the second prong of the § 12.05C listing. Id.; see also Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997); Edwards v. Heckler, 736 F.2d 625, 629-31 (11th Cir. 1984); Nieves v. Secretary of Health Human Servs., 775 F.2d 12, 14 n. 7 (1st Cir. 1985). Indeed, in footnote 3 of the Fanning decision, the court found that the "extra" impairment need not even reach the "severe" limit; although one might be hard pressed to call a less than "severe" impairment, an impairment at all.
In Fanning, the first prong of the listing was met because plaintiff's IQ was found to be between 76 and 69. Fanning, 827 F.2d at 633. The court imposed a standard applicable to the second prong, that the impairment must have more than a slight or minimal effect on plaintiff's ability to perform basic work activities. Id. Because the ALJ had not considered this question in regard to the plaintiff's knee injury, the court remanded the matter. Id.
In the instant case, the ALJ found plaintiff to have the severe impairment of borderline intellectual functioning. (Tr. at 13.) In making this finding, the ALJ found that plaintiff had a verbal IQ of 75, a performance IQ of 66, and a full scale IQ of 70. (Id.) The ALJ did mention that Dr. Kahler had noted that under ideal conditions, plaintiff may have scored higher on these tests. (Tr. at 17.)
Defendant argues that plaintiff must be diagnosed with mental retardation in order for this listing to be met, regardless of her IQ scores. Although defendant cites out of circuit authority to the contrary, a formal diagnosis of mental retardation is not required. Christner v. Astrue, 498 F.3d 790, 793 (8th Cir. 2007);Lewis v. Astrue, 2008 WL 191415 at * 5 (N.D. Cal. 2008).
The record indicates a range of IQs between 66 and 75; however, the listings specify that when verbal, performance, and full scale scores are provided by IQ tests, the ALJ must consider the lowest of these scores. 20 C.F.R., Pt. 404, Subpt. P, App. 1, § 12.00(D)(6)(c). Therefore, plaintiff has met the first prong of the listing.
Plaintiff's subaverage intellectual functioning was assessed when she was 18 years old; thus the onset date prerequisite is satisfied.
The ALJ found plaintiff to have the severe impairments of anxiety and depression, in addition to borderline intellectual functioning. (Tr. at 13.) Dr. Kahler, the psychologist upon whom the ALJ placed significant weight, diagnosed mild to moderate anxiety disorder and evidence of adult ADHD. (Tr. at 526.) Her GAF at this evaluation was 50, and it was estimated that her GAF in the last year was 50.
GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) ("DSM IV"). According to the DSM IV, a GAF of 41-50 indicates: "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)."
The ALJ did not specifically discuss why plaintiff did not meet section 12.05. Rather, he analyzed why she did not meet sections 12.04 and 12.06, and mentioned in passing that he had carefully considered whether plaintiff's impairments met any of the section 12.00 listings. He did state:
In this case, because the evidence on record shows that the claimant's impairments are characterized by cognitive deficits; anxiety; sleep disturbance; fearfulness; decreased energy and concentration; feelings of worthlessness; and a low tolerance for stress and pressure; it is necessary to evaluate her degrees of limitation utilizing the "B" criteria of sections 12.04, 12.05 and 12.06 in order to determine whether her impairments meet or equal the listing.
Upon review of the medical evidence on record, the undersigned has determined that the claimant has mild restrictions in her activities of daily living, mild difficulty in maintaining social functioning, moderate deficiencies of concentration, persistence, or pace, and has not experienced frequent episodes of decompensation in a work-like setting.
(Tr. at 14.) He then concluded that her "impairments, although severe, do not meet or equal the criteria of sections 12.04, 12.05 or 12.06." (Id. at 14.)
The ALJ, however, had previously found that plaintiff's anxiety and depression constituted severe impairments at step two. Therefore, pursuant to Fanning and the cases cited above, a finding of severe impairment at step two equates to a per se finding of "impairment imposing additional and significant work-related limitation of function" as defined in the second prong of listing 12.05C.
The other evidence of record concerning plaintiff's condition after she turned 18 years old supports this finding. Plaintiff's treating psychiatrist, Dr. Klein, opined on May 16, 2008 that plaintiff was permanently precluded from working due to post traumatic stress disorder. (Tr. at 776.) On June 17, 2005, plaintiff was diagnosed with dysthymic disorder and separation anxiety disorder. Her GAF at this time was 31 and the psychologist opined that 31 was her highest score in the past year. (Tr. at 367.) On October 18, 2005, plaintiff was diagnosed with PTSD and generalized anxiety disorder. (Id. at 334.) On March 1, 2007, plaintiff was diagnosed with MDD (major depressive order), mild, generalized anxiety disorder, and post traumatic stress disorder. (Tr. at 240.) Her GAF at this time was 55. (Id.)
According to the DSM IV, A GAF of 31-40 indicates "some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school)." DSM IV at 34.
According to the DSM IV, a GAF of 51-60 indicates moderate symptoms such as flat affect, circumstantial speech, occasional panic attacks, or moderate difficulty in functioning as in few friends or conflicts with peers or co-workers.
There was also evidence that plaintiff was unable to keep a job. On January 5, 2005, plaintiff refused to apply for subsidized employment through Shasta County Special Education Program. She also refused to participate at a work job site off campus. (Id. at 537.) On March 15, 2005, it was noted that plaintiff had quit a job without giving a reason. (Id. at 316.) There was a note that as of May, 2005, plaintiff was unemployable due to her attitude and refusal. (Id. at 543.) Plaintiff testified that she worked at Burger King for five or six days but could not do anything but clean the restroom because she would forget orders when she worked at the counter and could not do more than one thing at a time. (Id. at 814-15.) Plaintiff was able to work at least once a week on a volunteer basis at the YMCA for two years, but was fired when she had a confrontation with a parent. (Tr. at 16, 521.) She was also fired from her volunteer job at a convalescent home where she worked several times per week. (Tr. at 126, 522.) According to plaintiff's mother, she was fired from these jobs due to her bad attitude and rudeness. (Id.)
Because plaintiff has met both prongs of the listing, she must be awarded benefits. As this decision remands for calculation and payment of benefits only, there is no need to discuss plaintiff's other assertions of error.
CONCLUSIONAccordingly, pursuant to 42 U.S.C. § 405(g), sentence four, summary judgment is awarded to plaintiff. Judgment shall be entered in favor of plaintiff. This case is remanded for a computation and payment of benefits only.
The Commissioner did not file a cross-motion for summary judgment, but only an opposition to plaintiff's motion.
We recognize that Dennis testified that he never threatened Linett with a gun, and Dennis hotly contested at the hearing what had actually occurred. Dennis also hotly contests this evidence on appeal. As Linett emphasizes, however, the trial court could have believed Linett rather than Dennis, in part based upon Dubon's testimony and in part based upon possible inconsistencies between Dennis's deposition testimony and his trial testimony regarding the shooting incident. In sum, we conclude that the trial court, as the trier of fact, was entitled to believe Linett's testimony and find that Dennis threatened to shoot her with a gun if she pursued involvement in the family businesses. Linett also testified that during 2004, while she was working at Augusta Pines, Dennis told her that he was the one in charge, she should not get in his way, and if she did, something would happen to her. Linett further testified that Dennis had threatened her over nine times with bodily injury while she was at Augusta Pines. Dennis argues that Linett's testimony shows only some "non-violent" and verbal statements to encourage Linett to leave. Dennis also emphasizes the inferences that could be drawn from contrary evidence showing that Linett never called the police and that she continued to come to Augusta Pines even after these alleged threats. We agree that the trier of fact could have considered this evidence in determining whether Dennis's threats reasonably placed Linnet in fear of imminent physical harm. However, the court could have additionally taken into consideration Linett's explanation that she did not notify law enforcement because she did not want to expose her children to negative knowledge about their half-brother, that her position as executor required her to go to Augusta Pines and that she felt less threatened when in the presence of other Augusta Pines employees.
For example, during his deposition, Dennis denied a shooting incident altogether and stated that Linett had "fabricated" the story. Only at trial did Dennis offer the alternative explanation that at one point he fired a pistol in Linett's yard. The trial court could have questioned why Dennis did not offer this testimony at his deposition.
We also agree that some of Linett's testimony regarding alleged threats by Dennis to exclude her from the office, standing alone, might be fairly considered as "non-violent" statements. As mentioned above, however, according to Linett, nine of these threats involved "bodily injury." The trial court could have determined that this testimony, which referenced a specific number of threats of "bodily injury," was sufficiently specific to support a family violence finding. Finally, we note that the trial court could have considered the alleged threats at Augusta Pines in context and determined, based upon the evidence of Dennis's threats with a gun in 2003, that these additional threats reasonably placed Linett in fear of imminent physical harm, bodily injury, and assault. See Ulmer v. Ulmer, 130 S.W.3d 294, 300 (Tex.App.-Houston [14th Dist] 2004, no pet.) (reviewing sufficiency of evidence to support family violence protective order and noting that specific threats should be analyzed by considering record in its entirety). Accordingly, we conclude that the trial court could have found that Dennis continued to threaten Linett with bodily injury while Linett was at Augusta Pines and that these threats reasonably placed Linett in fear of imminent physical harm, bodily injury, or assault.
We note that Linett's testimony regarding these nine alleged threats at Augusta Pines is not qualified by a date range and is not tied specifically to Linett's other testimony. Thus, the trial court could have determined that this testimony provided some additional evidence that Linett was threatened with bodily injury at Augusta Pines during other times than those specifically referenced by Linett in her trial testimony.
In support of his argument that Linett's testimony presents nothing more than proof of non-violent and verbal statements that do not support the family violence findings, Dennis primarily relies upon two unreported cases: Gonzalez v. Rangel, No. 13-05-641-CV, 2006 WL 2371464 (Tex.App.-Corpus Christi Aug. 17, 2006, no pet.) and Thompson v. Thompson-O'Rear, No. 06-03-00129-CV, 2004 WL 1243080 (Tex.App.-Texarkana June 8, 2004, no pet.). In Gonzalez, the court determined that evidence that the appellant had threatened to ruin her ex-boyfriend's career, that she had told him that she had shot her ex-husband, that she had made phone calls to her ex-boyfriend, and that she had told her ex-boyfriend that he would die if he did not come home from Iraq was insufficient to support a finding of family violence. Gonzalez, 2006 WL 2371464, at *3. The court noted that without any evidence that the boyfriend was placed in any fear by the statement regarding the ex-husband and without any evidence as to the context of the statement concerning Iraq, the evidence did support a finding of family violence. Id. The court also concluded that the bare, non-detailed testimony about the existence of phone calls did not support the finding of family violence. Id. In Thompson, the court determined that an ex-husband's verbal confrontations with his ex-wife and her new spouse and his e-mails to the children's schools criticizing his ex-wife, among other things, did not support the protective order. 2004 WL 1243080, at *3-4. The trial court also noted that the ex-wife testified that her ex-husband had never threatened her with physical harm. Id. at *3. Here, Linett provided testimony that Dennis had threatened her life, and the lives of her children, with a gun, and Dennis had discharged the gun in Linett's presence to show her that he did not "miss." Dennis subsequently threatened Linett's life again by telling her she could disappear. The instant case is factually distinguishable from Gonzalez and Thompson.
Regarding the evidence of the specific threats made from 2005 to 2009 by Williams, allegedly on behalf of Dennis, the trial court made extensive findings. First, the trial court found that Dennis's and Williams's credibility had been diminished by providing testimony that was inconsistent and contrary to "clear evidence." Second, the trial court found that "it was more likely than not" that Williams was acting on Dennis's behalf "in contacting and threatening [Linett] and her family on several occasions since 2004." The trial court based these findings upon Williams's, Dennis's, and Linett's testimony, which we detail below.
At trial, Linett testified that Williams came to her house two times in 2004. On the second visit, Linett testified that he threatened her life and the lives of her children and he made an offer of $4 million to keep her "mouth shut" and never return to Augusta Pines. She further testified that Williams told her during this visit that "Dennis sent him over." Dennis did not object to this testimony. After telling her that he was there on behalf of Dennis, Williams told Linett that "anything" could happen to her and that she could disappear and no one would know. Williams also suggested that her children could be involved in a hunting accident. Williams agreed that he went to Linett's house after learning from Dennis that Linett had filed the underlying lawsuit. Williams claimed that he encouraged Linett not to proceed with the lawsuit, and he denied threatening Linett or her children. He also denied meeting with Linett on behalf of Dennis.
Linett further testified that, in 2005, shortly after having been granted a TRO to secure records necessary to fulfill her duties as executor of Jim's estate, Williams asked for another meeting. At this meeting, Williams again told her that he was meeting with her on behalf of Dennis in the capacity as a mediator. This time, Dennis objected to Linett's testimony regarding Williams's representation that he was appearing on behalf of Dennis. Linett stated that at this meeting Williams offered $10 million to settle the lawsuit, and Williams indicated the lives of Linett and her children were at stake. Linett also explained that she had arranged for her private investigator to be present in the restaurant during this meeting because she felt that her safety was going to be "jeopardized" by Williams. The investigator testified and corroborated Linett's testimony that she asked him to accompany her to this meeting because of safety concerns. Williams agreed that the meeting took place, but he described the meeting as cordial and denied threatening Linett. He further explained that he was meeting to help Linett and to fulfill a promise he had made to Jim to provide guidance to Linett on business matters.
Finally, Linett testified that, on January 14, 2009, she received a call from her son Jarod telling her that Williams had come to the house late in the evening intoxicated, with a gun, looking for her. Jarod testified that Williams arrived, uninvited, after 10:00 at night. He said that Williams drove very slowly up the driveway, stopped, and "started revving up his engine in a . . . threatening manner." Prior to Williams's entrance, Jarod hurried to his brother Rushton's room with a shotgun and told him "if anything happens, I want you to use it." Jarod recounted that, upon entering, Williams asked if his mother was at home and continuously patted the gun in his pants. Jarod tried "not to do anything that would make him want to use [the gun]" and tried to act as a "barrier" so that Williams couldn't go any further into the house. Williams eventually left. Jarod testified that he felt threatened and he felt that his mother, his brother and his younger sisters were being threatened. Rushton, Jarod's brother, testified that on the night in question, he was sleeping and Jarod rushed into his room and told him to get the shotgun ready. Rushton also testified that Jarod told him that Williams had his hand on his gun while in the house.
Williams agreed that he went to Linett's house around 11:00 at night after he "heard at the [Augusta Pines] office that they were going to mediation." Williams claimed that his intention was to tell Linett that she could "make a deal." Williams admitted that he went to Linett's house after having "some beers on the golf course" while playing with Dennis that day and then having a couple of glasses of wine at a restaurant near Linett's house. Williams also admitted to speaking on the phone two times with Dennis from the restaurant before going to Linett's house uninvited, although Williams stated that he was setting up another golf game with Dennis and not discussing Linett or the lawsuit.
Making all inferences in favor of the trial court's finding, as we must, we conclude that there is legally sufficient evidence to support the trial court's finding that Williams met with and threatened Linett and her family on behalf of Dennis. As noted above, Linett testified Williams told her during their meetings in 2004 and 2005 that he was meeting with Linett on behalf of Dennis. Even if a portion of Linett's testimony regarding the 2005 meeting should have been excluded on hearsay grounds, Dennis did not object to Linett's testimony regarding the 2004 meeting. Moreover, Williams himself testified that he went to Linett's house in January 2009 after hearing about the mediation at the Augusta Pines office, playing golf with Dennis that day, and speaking with Dennis on the phone two times. The trial court was presented with sufficient evidence to conclude that beginning in 2004 through 2009 Williams continued to communicate with Linett regarding the lawsuit on behalf of and with the knowledge of Dennis.
We separately discuss Dennis's evidentiary complaints below.
The trial court could have determined that Williams did not have any legitimate personal interest in the lawsuit and could have disbelieved Williams's testimony as to his reasons for staying involved in the dispute. Additionally, the trial court cited in its order evidence of payments made by one of Dennis's companies to Williams's company within days of Williams going to Linett's house, with a gun, and the trial court further found conflicts in Dennis's and Williams's testimony as to why this payment was made. The trial court also commented on Dennis's demeanor in the courtroom.
In sum, we hold, based upon the evidence of the continually escalating threats made by Dennis and the threats made by Williams on Dennis's behalf, involving the threat of the use of deadly force against Linett and her children if Linett continued to pursue involvement in the family businesses and the underlying lawsuit, culminating in Williams's late night visit in which Jarod felt frightened enough to load the shotgun to protect his siblings, that there is legally sufficient evidence to support the trial court's finding that family violence occurred in the past. We similarly hold, based upon the history of the threats made by Dennis and by Williams on Dennis's behalf, spanning from 2003 to 2009, that there is legally sufficient evidence to support the trial court's finding that family violence is likely to occur in the future as the underlying lawsuit proceeds. See Clements, 251 S.W.3d at 87 (holding that evidence of a pattern of family violence in past can support a finding that family violence will likely occur again in the future). We specifically note that the evidence of family violence in this case was tied directly to the fact that Linett is pursuing the underlying lawsuit against Dennis, that each threatening incident occurred following a critical juncture in the proceeding, and that the family violence protective order was entered in April 2009, following the conclusion of an unsuccessful mediation and the anticipation of setting a trial date. Hence, we find very persuasive the finding by the trial court that the potential for imminent and escalating family violence will continue to exist as the lawsuit proceeds.
Within his issues, Dennis argues that "considering the absence of credible evidence to support a finding of family violence," the family violence protective order unfairly stigmatizes him. Having held that there is sufficient evidence supporting the trial court's findings of family violence, we necessarily reject Dennis's argument regarding stigma.
We overrule Dennis's third and fourth issues.
Evidentiary Complaints
In his second issue, Dennis asserts that a family violence protective order cannot "survive appellate scrutiny when it is based on argument, innuendo and inadmissible evidence." Dennis specifically contends that the trial court erred in admitting certain evidence and that the cumulative effect of the trial court's evidentiary errors renders the evidence insufficient.
First, Dennis complains that the trial court erred in admitting a portion of Linett's testimony on the ground of hearsay. However, as explained above, Dennis failed to object on at least one occasion to Linett's testimony that Williams was meeting with Linett on behalf of Dennis. We also note that Linett argues that her testimony regarding Williams's representations that he was meeting with her on behalf of Dennis was admissible because Williams was a named party to Linett's suit seeking a protective order and Williams was Dennis's agent and co-conspirator. See TEX.R. EVID. 801(e)(2)(D) (providing that "a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship" is admission by party-opponent and is not hearsay); TEX.R. EVID. 801(e)(2)(E) (providing that "a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy" is an admission by party-opponent and is not hearsay). However, we need not directly address the admissibility of the challenged portion of Linett's testimony regarding Williams's representations during their 2005 meeting because we conclude that Linett's testimony, to which Dennis did not object, together with the circumstantial evidence cited by the trial court in its family violence protective order, was sufficient for the trial court to conclude that Williams was meeting with Linett on behalf of Dennis.
Dennis does not address these arguments in his reply brief.
Second, Dennis complains that the trial court erred in admitting evidence related to his 30-year-old misdemeanor convictions arising from conduct committed when he was 17 years old, with no evidence of intervening conduct. Dennis asserts that these convictions were inadmissible under Texas Rules of Evidence 404 and 609.
The trial court relied upon evidence of these misdemeanor convictions to make the following finding of fact and conclusion of law:
2. First, the Court finds that [Dennis] has exhibited a history of violent and threatening behavior. He is now a 48 year old man and a father. As a teenager in the late 1970's he was convicted of shooting an individual with a shotgun. Of note, the Court finds that the shooting occurred after other persons apparently shot and otherwise damaged his vehicle, and Dennis claims to have been acting in retaliation. [Dennis] was also convicted of falsely imprisoning a young woman as a teenager. [Dennis's] counsel argued strenuously that this evidence was irrelevant to the proceedings and also inadmissable under Texas Rule of Evidence 609. . . . This Court finds that the nature of the past crimes is relevant to the issues before this Court because they involve guns, as do the threats in this case, because they involve retaliation, as does this case, and because they involve violence towards women, as does this case. For the same reasons, the Court finds that the convictions are not excluded by Texas Rule of Evidence 403. . . .
In his reply brief, Dennis notes that during the hearing, the trial court stated that it considered the evidence related to Dennis's criminal history to be "very significant." Dennis then argues that because the trial court stated in paragraph 2 of the family violence protective order that it based its ultimate findings of family violence on the "foregoing," the admission of Dennis's prior criminal records was not only improper, but also harmful.
Assuming that the trial court erred in admitting evidence pertaining to Dennis's 1970's misdemeanor convictions because such evidence was irrelevant to the issue of family violence or because such evidence constituted inadmissible character evidence, see TEX.R. EVID. 404(b), we disagree with Dennis's contention that "critical fact" findings necessary to support the family violence protective order must be set aside and that, as a result, the evidence is legally insufficient. We recognize that the trial court stated in paragraph 2 that the evidence showed, among other things, a history of violent and threatening behavior. However, paragraph 2 was only one paragraph in a 14-page protective order that was extremely detailed. The overwhelming majority of the trial court's fact findings in its 23 paragraph order concerned the testimony regarding the specific threats made between the parties. Our review of the record also reveals that, although Linett and her counsel placed some emphasis on Dennis's criminal history and vigorously argued for its admission, the overwhelming majority of the witnesses and testimony concerned the alleged threats made by Dennis, Williams, and Linett from 2003 to 2009. Accordingly, we cannot conclude that any of the complained-of evidentiary errors committed by the trial court probably caused the rendition of an improper judgment. See TEX. R.APP. P. 44.1.
We purposefully omitted from our prior analysis any evidence pertaining to Dennis's thirty-year old misdemeanor convictions. We also note that, in the prayer of his brief, Dennis asks us only to reverse the family violence protective order and does not ask us to modify the protective order by deleting paragraph 2 referencing Dennis's prior convictions.
We overrule Dennis's second issue.
Attorney's Fees
In an issue presented in a supplemental brief, Dennis contends 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. Dennis does not present any other substantive challenge to the attorney's fees award. Having held that sufficient evidence support's the family violence protective order, we hold that the attorney's fees award should not be reversed.
We overrule Dennis's issue raised in his supplemental brief.
Conclusion
We affirm the order of the trial court.
Justice JENNINGS, dissenting.
TERRY JENNINGS, Justice, dissenting.
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.
See TEX. FAM. CODE ANN. § 82.002 (Vernon Supp. 2008).
The underlying lawsuit is styled Wilkerson v. Wilkerson, No. 2004-50710, pending in the 151st District Court of Harris County, Texas.
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.
Linett also sought a protective order against Williams, but she never served Williams in the proceeding. As is discussed in the trial court's order and in the majority opinion, Williams appeared to testify at the hearing on the application at Dennis's request.
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 any-time 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."
We permitted the filing of supplemental briefing on this issue because the trial court modified its protective order after Dennis filed his first notice of appeal.
Dennis does not challenge the reasonableness of the fees and costs awarded, the statutory basis for the fees and costs, or the trial court's reopening of evidence on the issue of attorney's fees after entering the protective order.
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.
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