Moore v. Lisa Bushman & Integrity Land Servs. & Invs., LLC

559 S.W.3d 645

David MOORE and Lisa Moore, Appellants

v.Lisa BUSHMAN and Integrity Land Services & Investments, LLC, Appellees

NO. 14-16-00986-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed August 30, 2018

Jonathan Parchman, Koroush Ghanean, The Woodlands, TX, for Appellants

Spencer H. Gardner, Houston, TX, for Appellees.

Panel consists of Justices Jamison, Busby and Donovan.

OPINION

John Donovan, Justice

Appellants David Moore and Lisa Moore appeal from the trial court’s grant of summary judgment in favor of appellees Lisa Bushman and Integrity Land Services & Investments, LLC (collectively, "Bushman"). The Moores sued Bushman alleging invasion of privacy, tortious interference with a contract, abuse of process, and civil conspiracy. Bushman filed a combined no-evidence and traditional motion for summary judgment. The trial court granted the no-evidence motion. We affirm in part and reverse and remand in part.

BACKGROUND

As a result of previous litigation between the parties, Bushman gained title to property adjacent to the Moores. Animosity continued between the parties, culminating in the present lawsuit. The Moores sued for invasion of privacy; interference with a business relationship; abuse of process; and civil conspiracy. The Moores claim that Bushman invaded their privacy by installing video cameras that point onto the Moores' property. The Moores also complain that Bushman tortiously interfered with their insurance contract by contacting the Moores' claims representative and urging him to deny the Moores' property damage claim. The Moores' abuse of process claim rests on an allegation that Bushman improperly had David arrested for removing a shed from the Moores' former property. Lastly, the Moores assert that Bushman conspired with a friend, William McCarty, in these tortious activities.

Bushman filed a no-evidence and, alternatively, traditional motion for summary judgment, contending that the Moores could not produce any evidence to support any of the elements of the causes of action they raised and that a settlement agreement that the Moores signed to conclude the prior litigation also released the claims brought in the present case. As stated, the trial court granted Bushman’s no-evidence motion but did not rule on the traditional motion for summary judgment.¹

STANDARD OF REVIEW

We review de novo a trial court’s grant of summary judgment. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009).

In reviewing either a no-evidence or a traditional summary judgment motion, all evidence favorable to the nonmovant is taken as true, and we draw every reasonable inference and resolve all doubts in favor of the nonmovant. Cura-Cruz v. CenterPoint Energy Houston Elec., LLC , 522 S.W.3d 565, 575 (Tex. App.—Houston [14th Dist.] 2017, pet. filed). In a no-evidence motion for summary judgment, the movant asserts there is no evidence of one or more essential elements of the claims for which the nonmovant bears the burden of proof at trial. Tex. R. Civ. P. 166a(i) ; Timpte Indus., Inc. v. Gish , 286 S.W.3d 306, 310 (Tex. 2009). A no-evidence summary judgment is improperly granted if the nonmovant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Cura-Cruz , 522 S.W.3d at 575. More than a scintilla of evidence exists when reasonable and fair-minded individuals could differ in their conclusions. Forbes Inc. v. Granada Biosciences, Inc. , 124 S.W.3d 167, 172 (Tex. 2003). Less than a scintilla of evidence exists if the evidence creates no more than a mere surmise or suspicion of a fact regarding a challenged element. Id.

INVASION OF PRIVACY

The Moores' first issue challenges the grant of summary judgment against their invasion of privacy claim. Texas common law recognizes an individual’s right to privacy. See Billings v. Atkinson , 489 S.W.2d 858, 860 (Tex. 1973). The Texas Constitution also guarantees the sanctity of the home and person from unreasonable intrusion. Tex. Const. art. 1, §§ 9, 25 ; Tex. State Emps. Union v. Tex. Dep't of Mental Health & Mental Retardation , 746 S.W.2d 203, 205 (Tex. 1987). To establish an actionable invasion of privacy of the type the Moores allege — intrusion-upon-seclusion — a plaintiff must show (1) an intentional intrusion, physically or otherwise, upon another’s solitude, seclusion, or private affairs or concerns, which (2) would be highly offensive to a reasonable person. Valenzuela v. Aquino , 853 S.W.2d 512, 513 (Tex. 1993).² This type of invasion of privacy includes a physical invasion of a person’s property as well as eavesdropping upon private conversations with the aid of wiretaps or microphones, or spying. Vaughn v. Drennon , 202 S.W.3d 308, 320 (Tex. App.—Tyler 2006, pet. denied) ; GTE Mobilnet of S. Tex. Ltd. P'ship v. Pascouet , 61 S.W.3d 599, 618 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). Video recordings may form the basis of a claim for invasion of privacy. See Clayton v. Richards , 47 S.W.3d 149, 155 (Tex. App.—Texarkana 2001, pet. denied).

One of the grounds asserted in Bushman’s motion was that there was no evidence of the first element. In their response, the Moores asserted that Bushman instructed McCarty to install a video camera "pointed directly at the [Moores'] residence solely for the purpose to intrude into the personal lives of the Plaintiffs and to spy on their private affairs." The response further alleged "there was a video intrusion into a portion of the [Moores'] property that was not facing a public street and was a private and secluded area of the [Moores]." As summary judgment evidence, the Moores attached Lisa’s affidavit, which states, in pertinent part:

One of the ways [Bushman] used to harass my family was when she installed cameras pointing directly onto our property, specifically [ ] so she can spy on us. The section she pointed the camera did not face a public street and was our own private secluded area. There was no reason for her to point the camera in that direction other than to harass and annoy us. Knowing that she was recording our private moment greatly disturbed my husband and me.

Other summary judgment evidence provided by the Moores shows that they had no access to their property by public road. Rather, their only means of access was via a dirt road across 10-12 acres owned by Bushman. Bushman placed cameras along the road leading to the Moores' front gate.

Bushman cited Vaughn, 202 S.W.3d at 308, in support of her motion. In Vaughn , the Tyler Court of Appeals held that evidence the defendant had watched the plaintiffs with binoculars through their front window from his own property and from across a public street did not support a finding of invasion of privacy. Id. at 320. The court explained that "[o]ne cannot expect to be entitled to seclusion when standing directly in front of a large window with the blinds open or while outside." Id.

The Moores relied upon Baugh v. Fleming , No. 03-08-00321-CV, 2009 WL 5149928 (Tex. App.—Austin 2009, no pet.), in their response, as they do on appeal. The Austin Court of Appeals affirmed a judgment for invasion of privacy where evidence indicated the plaintiffs saw defendants videotaping them over a six-foot privacy fence separating the parties' properties and through the windows of the plaintiffs' home. 2009 WL 5149928, at *1-2 & n.1. The court emphasized that the windows in question faced the fenced backyard and not a public street, distinguishing Vaughn . Id. at *2.

What these case have in common is the court’s emphasis on the plaintiff’s expectation of privacy. The Vaughn court held that it was not reasonable to expect privacy when standing in a front window facing a public street whereas the Baugh court held that it was reasonable to expect privacy when standing by a rear window facing a backyard with a high privacy fence. Baugh , 2009 WL 5149928 at *2 ; Vaughn , 202 S.W.3d at 320. As this court has noted, an intrusion into an area where the plaintiff had an expectation of privacy is sufficient to support a claim for invasion of privacy. Fawcett v. Grosu , 498 S.W.3d 650, 664 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). Thus the question is whether the Moores produced more than a scintilla of probative evidence that Bushman’s video camera intruded into area where they had an expectation of privacy.

Lisa’s affidavit does not include facts that support her characterization of the property the camera was pointed at as being a "private secluded area." There are no facts in Lisa’s affidavit as to whether the camera was pointed at a window or a particular part of their house, or whether it was pointed over a fence or indicating the size or type of fence. See Vaughn, 202 S.W.3d at 320 ; Baugh , 2009 WL 5149928, at *2 ; see also Pascouet , 61 S.W.3d at 619 (workers on tower could look over twelve-foot-high fence into the plaintiff’s backyard). Rather, the only evidence presented is that the camera was pointed at the residence or onto the Moore’s property at an area that is not on a public street. These facts are not evidence the camera was positioned to intrude into an area where it was reasonable to expect privacy. This evidence creates no more than a mere surmise of suspicion that the area in question is secluded or private. Given that Bushman owned the adjacent property, more evidence was needed to raise a fact issue regarding whether her camera recorded an area of the Moores' property not normally visible from Bushman’s property. See Vaughn , 202 S.W.3d at 320 (holding no intrusion into private affairs where defendant used binoculars to watch plaintiffs from his own property). The Moores failed to present more than a scintilla of evidence of an intentional intrusion upon their solitude, seclusion, or private affairs or concerns.

Because the Moores did not meet their burden to present more than a scintilla of probative evidence to raise a genuine issue of material fact as to...