Valenzuela v. Aquino

Dr. Eduardo Aquino and his family (“Aquino”) sued Elíseo Valenzuela, Jr., and others (“Valenzuela”) for damages resulting from picketing near the Aquino home and for an injunction against continued picketing. Aquino based his action on two theories, negligent infliction of emotional distress and breach of privacy, but at trial before a jury Aquino obtained jury findings on only the first theory. The trial court rendered judgment on the verdict, awarding Aquino damages against Valenzuela and permanently enjoining Valenzuela from picketing within 400 feet of the Aquino home. The court of appeals reversed the award of damages but affirmed the injunction. 800 S.W.2d 301. We granted both Aquino’s and Valenzuela’s petitions for writ of error.

No action for negligent infliction of emotional distress exists in Texas. Boyles v. Kerr, 855 S.W.2d 593 (Tex.1993). The trial court’s judgment cannot therefore be sustained on this theory. Aquino’s breach of privacy claim appears to be based upon our decision in Billings v. Atkinson, 489 S.W.2d 858 (Tex.1973), in which we recognized a cause of action for a willful, unwarranted invasion of privacy, relying in part upon Restatement of Torts § 867 (1939). A successor provision, Restatement (Second) of Torts § 652B (1977), now states:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Thus defined, there are two elements to this cause of action: (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. Aquino did not request that either of these elements be submitted to the jury, and the evidence did not establish either element beyond dispute. At trial Valenzuela argued that the picketing, although certainly directed at Aquino, was not an intentional intrusion upon his privacy, and was not of a nature highly offensive to a reasonable person. Without a resolution of this factual dispute, the trial court could not grant Aquino relief on his second theory. Thus, the trial court’s judgment cannot be based on either of the theories pleaded by Aquino.

Justice Spector’s dissenting opinion argues that the jury finding that picketing was focused or directed at the Aquino residence satisfies both elements of a cause of action for breach of privacy. In fact, it satisfies neither. Were it otherwise, picketing focused at a residence would always be an actionable breach of privacy, regardless of the circumstances, or of whether the target was an employer, an alleged polluter, a general, a public official, or a physician. Even if the picketers in this case were beyond the 400-foot limit imposed by the trial court, the picketing would still be focused on the Aquino residence. There may be limits on focused residential picketing, see, e.g., Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), but it is not unlawful per se.

The dissenting opinions explore the limits on such picketing and urge the Court to do likewise. Absent findings or evidence to establish Valenzuela’s liability to Aquino, we decline to debate the very important and difficult but nevertheless hypothetical issue of whether Valenzuela’s constitutional rights might provide a shield from such liability if it were ever established.

In Boyles we concluded that because the plaintiff may have believed it unnecessary to assert claims alternative to negligent infliction of emotional distress in reliance on our opinion in St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649 (Tex.1987), the case should be remanded for a new trial in the interest of justice. Consistently, the present case must also be remanded.

Accordingly, the judgment of the court of appeals is affirmed insofar as it sets aside the trial court’s award of damages, and reversed in all other respects, and the case remanded to the trial court for a new trial.

Justice DOGGETT concurs in the judgment only.

Dissenting Opinion by Justice GONZALEZ.

Dissenting Opinion by Justice GAMMAGE.

Dissenting Opinion by Justice SPECTOR.

. The dissent cites testimony by two picketers. Elíseo Valenzuela, Jr. did testify that his purpose was to "intimidate” Dr. Aquino, but a little later he testified that by "intimidation” he meant "to express our views and to let other people know about it", to “persuade, not forcefully”, "to affect the conscience" of the Aquinos, and "to prick the conscience” of others in the neighborhood. Charles W. Bolton, a truck driver by occupation, answered "yes” when asked whether he considered his conduct to be an invasion of the Aquinos privacy, but later testified that he had not understood the question, and that he had picketed "just ... to let the neighbors know” that Dr. Aquino did abortions. The testimony of both these witnesses is far from unequivocal. Even assuming that their testimony was attributable to all the picketers, so as to establish the first element of an action for invasion of privacy, it does not establish the second element.

. Justice Spector’s opinion also argues that a permanent injunction can issue without a finding of legal liability "so long as the evidence and jury findings establish the likelihood of future violations”, citing State v. Texas Pet Foods, 591 S.W.2d 800 (Tex.1979). In that case the jury found hundreds of violations, and the trial court enjoined the conduct found by the jury and certain other conduct as well. The issue in that case was not whether an injunction could issue without a finding of liability on some legal theory, but whether future conduct could be enjoined based upon the occurrence of past conduct. No final relief, including a permanent injunction, can be granted in a contested case without a determination of legal liability, and the dissenting opinion cites no authority to the contrary.