NO. 01-0568
IN THE
SUPREME COURT OF TEXAS
AUSTIN, TEXAS
JAMES MICHAEL RICHARDS d/b/a AN OUNCE OF PREVENTION,
Petitioner
VS.
GARY RANDALL CLAYTON,
Respondent
GLEN W. MORGAN
State Bar No. 14438900
J. TRENTON BOND
State Bar No. 00785707
RICHARD J. CLARKSON
State Bar No. 04323000
Reaud, Morgan & Quinn, Inc.
801 Laurel Street
P. O. Box 26005
Beaumont, Texas 77720-6005
(409) 838-1000
FAX (409) 833-8236
IDENTITY
OF PARTIES AND COUNSEL
Pursuant to Rule 53.2, Tex.R.App.P., the following is a list of all parties to the trial court’s final judgment, as well as the names and addresses of all trial and appellate counsel:
Appellant/Petitioner: James Michael Richards d/b/a An Ounce of
Prevention
Counsel: John E. Haught
Elizabeth Pratt
Mehaffy
& Weber
P. O. Box 16
Beaumont, Texas 77704
(409) 835-5011
FAX (409) 835-5177
Appellee/Respondent: Gary Randall Clayton
Counsel: Glen W. Morgan
J. Trenton Bond
Richard J. Clarkson
Reaud,
Morgan & Quinn, Inc.
P. O. Box 26005
Beaumont, Texas 77720-6005
(409) 838-1000
FAX (409) 833-8236
TABLE OF CONTENTS
Page
Index of Authorities
Cases Page
Cruzan v. Director, Missouri Dept. of Health,
490 F.2d 803 (5th Cir. 1974), cert. den. 419 U.S. 897 (1974)......................................... 2
255 S.W.2d 848 (Tex. 1953)................................................................................................ 13
Thomas v. Clayton Williams Energy, Inc.
2 S.W.3d 734 (Tex.App.—Houston [14th Dist.] 1999, no pet.)...................................... 23
476 U.S. 747 (1986).............................................................................................................. 14
445 U.S. 40 (1980)................................................................................................................. 15
830 S.W.2d 94 (Tex. 1992).................................................................................................. 21
482 U.S. 78 (1987)................................................................................................................. 17
141 U.S. 250 (1891).............................................................................................................. 12,13,
14
336 S.E.2d 221 (Ga. 1985)................................................................................................... 15
NO. 01-0568
IN THE
SUPREME COURT OF TEXAS
AUSTIN, TEXAS
JAMES MICHAEL RICHARDS d/b/a AN OUNCE OF PREVENTION,
Petitioner
VS.
GARY RANDALL CLAYTON,
Respondent
TO THE HONORABLE JUSTICES OF THE SUPREME COURT OF TEXAS:
The only inaccuracy in the Petitioner’s Statement of the Case was the failure to point out that the Respondent (“Clayton”) not only alleged an invasion of privacy by intrusion, but that the invasion was intentional and malicious. This was an allegation of an intentional tort.
The Supreme Court does not have jurisdiction in this case under Tex.Govt.Code § 22.001(a)(6) because the Court of Appeals’ opinion contained no factual or legal error. This legal question is not one of such importance to the state’s jurisprudence that it must be corrected. The Petitioner (“Richards”) has not presented this Court with a single case dealing with the right of a third party to secretly videotape [or otherwise view] the putative sexual activity of a married man in the privacy of the marital home. A factual question that has come up only once in more than 150 years of the jurisprudence of this state is not one, arguendo error, that is “of such importance to the state’s jurisprudence” as to warrant the granting a petition for review.
The only case directly on point strongly militates against the grant of this petition. Simpson v. Simpson, 490 F.2d 803, 808-809 (5th Cir. 1974), cert. den. 419 U.S. 897 (1974); Miller v. Brooks, 123 N.C. App. 20, 472 S.E.2d 350, 355 (N.C. Ct.App. 1996); De May v. Roberts, 9 N.W. 146, 148-149 (Mich. 1881) (unnecessary male observer at the home delivery of the plaintiff’s child was held to be a privacy intrusion, even though the delivery was also observed by the plaintiff’s husband, the attending doctor and a woman assistant). If the Court thought this issue was unclear and important to the jurisprudence of Texas, it would have decided the matter in Collins v. Collins, 904 S.W.2d 792, 796-797 (Tex.App.—Houston [1st Dist.] 1995), aff. per curiam at 923 S.W.2d 59 (Tex. 1996) (“Neither the state nor the federal wiretap statutes contain any exception for wiretaps between spouses . . . . Nothing in the Texas Constitution or our common law suggests that the right of privacy is limited to unmarried individuals.”). No legal or philosophical distinction exists between the case at bar and the Collins decision.
Are
privacy rights in a marriage, under Texas law, determined by an analysis of
Anglo-American common law or by an analysis of the Texas Constitution and that stare
decisis which has its origin in Mexican/Spanish law?
Does each spouse of a marriage in Texas have the same personal autonomy over their body that they had prior to the marriage or does each spouse’s body, or its naked display, become a fungible asset of the marriage to be given or bartered away at the independent whim of either spouse?
Does a cause of action exist against a third-party for invasion of privacy in videotaping a person’s intimate sexual activities in the home when one spouse requests and pays for the videotaping without the knowledge or permission of the other victim/spouse?
Was the filing of the Motion for Summary Judgment improper in this case because its gravamen was the failure of Clayton to plead a cause of action? Should the Motion for Summary Judgment have been preceded by special exceptions to Clayton’s pleadings on the grounds of failure to plead a cause of action, followed by an opportunity for Clayton to replead raising new or expanded causes of action?
Was the affidavit of Richards
attached to the Motion for Summary Judgment substantively defective? Does this make the Motion for Summary
Judgment fatally defective?
Can Richards raise a no-evidence
issue in the Court of Appeals and this Court when he failed to raise a Tex.R.Civ.P. 166a(i) motion in the
trial court?
In May 1999, Marie Clayton decided to end her marriage with Gary Clayton. (CR 11.) Marie Clayton hired Petitioner James Michael Richards d/b/a An Ounce of Prevention in the hope of catching Mr. Clayton in some sort of adulterous affair. (CR 25.) Mr. Richards followed Mr. Clayton, but did not discover anything remotely approaching adultery and he reported that fact to Ms. Clayton. (CR 25).
Ms. Clayton and Mr. Richards hatched a plan to set up a video camera in Mr. Clayton’s bedroom. (CR 25.) The plan went as follows: Ms. Clayton made it known to Mr. Clayton that she was going to Virginia to visit her family and would be gone for several days. She reminded him of the visit and the length of stay several times. (CR 25.) On the eve of her trip, Ms. Clayton and Mr. Richards put their scheme into action and hid a miniature camera in Mr. Clayton’s bedroom in an alarm clock next to Mr. Clayton’s bed. (CR 25.)
Ms. Clayton then left for Virginia as planned and Mr. Richards monitored the camera while Ms. Clayton was out of state. (CR 25.) Not only did Mr. Richards monitor the camera while Ms. Clayton was in Virginia, he also entered the home with a neighbor’s assistance so that he could remove and replace the videotape. (CR 29.) No one was home when Mr. Richards entered the Clayton home to change the videotape. (CR 11, 25.) Apparently Ms. Clayton called Mr. Richards from Virginia and gave him instructions to contact a neighbor to unlock the house.
Both tapes taken of Mr. Clayton in the privacy of his own bedroom revealed absolutely no wrongdoing on Mr. Clayton’s behalf. (CR 25.) Nonetheless, Mr. Clayton has suffered severely with the embarrassment and knowledge that someone was filming his bedroom during his most private moments. (CR 2,3.) Mr. Clayton was the sole occupant of the home at the time he suffered this invasion of privacy and he never gave permission to anyone to enter his home and videotape him. (CR 25.)
Clayton invokes Tex.R.App.P. 38.1(f). Clayton does not accept Richards’ Statement of Facts as it is phrased or as to what is included or left out. For example, the videotape in question was not placed into evidence as part of the Motion for Summary Judgment. Where evidence such as the videotape was in the control of Richards and the other defendant, Marie D. Clayton, [they had both seen its contents] and was not placed into evidence “. . . it raises the presumption that, if offered, the evidence would have been unfavorable to [them].” City of Galveston v. State, 518 S.W.2d 413 (Tex.Civ.App.—Houston [14th Dist.] 1975, no writ); Edwards v. Shell Oil Co., 611 S.W.2d 904, 907 (Tex.Civ.App.—Eastland 1981, ref’d. n.r.e.). Richards’ arguments at page 3 n.1 of its Brief on the Merits that the fact that supporting evidence attached to the original and supplemental Motion for Summary Judgment of Marie Clayton were not included in the appellate record raises a presumption in Richards’ favor is wrong. The trial court denied Marie Clayton’s Motion for Summary Judgment and that motion, response and order of the trial court were not before the Court of Appeals or this Court. Additionally, the matter was waived because it was not the subject of briefing or arguments in the Court of Appeals.
Besides, the summary judgment rule is not intended to permit trial by deposition or affidavit. A summary judgment motion should not be resolved by weighing the relative strength of conflicting facts and inferences. Fisher v. Yates, 953 S.W.2d 370, 380 (Tex.App.—Texarkana 1997) den’d. with per curiam opinion at 988 S.W.2d 730 (1999).
This Court does not have jurisdiction to hear this case as the Court of Appeals has already determined that the facts of this case rise to the level necessary to sustain the tort of invasion of privacy and Petitioner has failed to present this Court with a “no evidence” point of error under Tex.R.Civ.P. 166a(i). As the Court’s jurisdiction is limited to matters of law only, the Petitioner has failed to present any points for review within the jurisdiction of this Court.
The Petitioner has failed to present any competent evidence to either the trial court or the appellate court. Specifically, the Petitioner failed to include a jurat on the document entitled “Affidavit,” which is a substantive defect that is being raised for the first time on appeal.
The tort of invasion of privacy springs from an individual’s constitutionally guaranteed right to privacy. An individual’s right of privacy may be invaded when there is (1) an intrusion, (2) to a thing or place which is ordinarily private, and (3) the intrusion is of a type that would be highly offensive to a reasonable person. Here, the elements are satisfied as Mr. Richard’s videotaped the bedroom of Mr. Clayton without Mr. Clayton’s knowledge or consent. The clandestine videotaping of an individual in the marital bedroom is an invasion of privacy.
Neither Texas nor Federal courts have found an exception for third parties who assist in the covert wiretapping of a spouse. State and Federal courts have held a third party liable for the tort of invasion of privacy when that third party assists in the covert wiretappings or videotaping of a spouse even when a spouse has authorized that wiretap.
William Blackstone, whose treatises on the laws of England were extremely influential throughout the United States offered the classic definition of marriage under English common-law:
By marriage the husband and wife are one person in law; that is the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything . . . . Upon this principle of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage.
II Blackstone’s Commentaries (St. George Tucker Ed.—1803), Rothman Reprints. Coverture united husband and wife by subsuming a married woman’s civil identity into that of the husband and accorded the husband wide-ranging control over his wife.
In 1873, the United States Supreme Court in Bradwell v. Illinois, 83 U.S. 130 (1872), ruled that the barring of Myra Bradwell from the practice of law was constitutional. The court ruled that a married woman could legally be excluded from pursuing a profession. However, the English common-law concept of coverture was not adopted in Texas. In Leake v. Saunders, 84 S.W.2d 993, 994 (Tex. 1935), this court stated:
Our laws upon that subject did not have their origin in the common law, but were derived mainly from the civil law brought from Spain to Mexico and thence to the Republic of Texas. The common-law theory that the legal existence of the wife was merged in the husband was not a principle of the civil law and has never been recognized in this state.
See also, Barkley v. Dumke, 87 S.W. 1147, 1147-1148 (Tex. 1905). For the same reasons, a wife could not be kept from holding a public office in Texas – following a profession as a public servant could not be prohibited. Dickson v. Strickland, 265 S.W. 1012, 1021-1022 (Tex. 1924) (the court held that the fact that Miriam “Ma” Ferguson was a married woman was not an impediment to her becoming the first female governor of Texas). See also, Texas Constitution, Art. 16, § 15, as another rejection of the theory that the wife’s identity and rights were subsumed into that of the husband. It is clear that Texas has not followed the common-law tradition that in a marriage, the female spouse lost all of her personal identity in that of her husband. In Texas, since the beginning days of the Republic, its jurisprudence has retained the Spanish tradition of separate identities and rights between the spouses. The “unity in marriage” doctrine has never been the law in Texas. The issues and arguments raised by Richards under the common law are inapposite and constitute a waiver of those putative issues. See, 39 Tex.Jur. 3d, Family Law, §§ 118 and 119 (“Distinctiveness of Texas Law”) (1994). Any doubt has been removed of the spouses’ separate identities by passage of the Texas Equal Rights Amendment. Tex.Const. Art.1, § 3a. See, Susan Crump, “Texas Equal Rights Amendment,” 11 Houston L.Rev. 136, 155-156 (1973).
In Collins at page 797, Justice Michol O’Connor in an en banc opinion (in a trial of divorce and tort causes of action, the jury found “against the husband based on an illegal wire tape of her [wife’s] telephone”) stated the law in Texas on each Texan’s fundamental right to privacy:
Texas courts have long recognized both a common law and a constitutional right of privacy. State Employees Union v. Dep’t of Mental Health, 746 S.W.2d 203, 205 (Tex. 1987) (the right of privacy is implicit in the Texas Constitution); Billings v. Atkinson, 489 S.W.2d 858, 860 (Tex. 1973) (a homeowner has a cause of action for illegal wiretap of residence based on the common-law right of privacy). Nothing in the Texas Constitution or our common law suggests that the right of privacy is limited to unmarried individuals.
One of the important intellectual influences on our Founding Fathers was John Locke. His Second Treatise of Government, § 87, at pages 15 and 51 (Richard H. Cox, Ed., Harlan Davidson, Inc. 1982) (1689), recognized the real importance of each person’s autonomy over their own body: “[E]very man has a property in his own person. This nobody has any right to but himself.” The federal legal system has generally protected the boundaries of the physical body as an extension of the privacy doctrine under the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution. See, for example, Griswold v. Connecticut, 381 U.S. 479, 484-86 (1965); Roe v. Wade, 410 U.S. 113, 152-53 (1973); Planned Parenthood v. Danforth, 428 U.S. 52, 70-71 (1976); Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261 (1990); and, Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992).
In Griswold, Justice Douglas, writing for the majority, found support for the right to privacy in the penumbras created by certain provisions of the Bill of Rights. Justice Goldberg, on the other hand, argued that the support for the right to privacy came from the Ninth Amendment. See, id. at 486-92 (Goldberg, J., concurring).
The more common rationale for the right to privacy under the federal constitution, however, is privacy as a part of the “liberty” interest protected under the Due Process Clause of the Fourteenth Amendment. See, Roe v. Wade at pages 152-153. The Fourteenth Amendment reads: “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.”
This Court in Ind. Foundation, etc. v. Texas Ind. Acc. Bd., 540 S.W.2d 668, 678 (Tex. 1976), discusses the origins of the constitutional right of privacy as found in the opinions of the Supreme Court of the United States. It quotes from Roe v. Wade, 410 U.S. at pg. 152-153 that:
The Constitution does not explicitly mention any right of privacy. In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.
Justice Gray’s opinion in Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 250-256 (1891), is a paean to every citizen’s individual privacy rights over his or her own body:
The single question presented by this record is whether in a civil action for an injury to the person, the court, on application of the defendant, and in advance of the trial may order the plaintiff without his or her consent, to submit to a surgical examination as to the extent of the injury sued for. We concur with the circuit court in holding that it had no legal right or power to make and enforce such an order. No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. As well said by Judge Cooley: ‘The right to one’s person may be said to be a right of complete immunity; to be let alone.’ Cooley, Torts, 29.
******************************************************
In the case at bar, it was argued that the plaintiff in an action for personal injury may be permitted by the court, as *255 in Mulhado v. Railroad, 30 N.Y. 370, to exhibit his wounds to the jury in order to show their nature and extent, and to enable a surgeon to testify on that subject, and therefore may be required by the court to do the same thing, for the same purpose, upon the motion of the defendant. But the answer to this is that any one may expose his body, if he chooses, with a due regard to decency, and with the permission of the court; but that he cannot be compelled to do so, in a civil action, without his consent. If he unreasonably refuses to show his injuries, when asked to do so, that fact maybe considered by the jury as bearing on his good faith, as in any other case of a party declining to produce the best evidence in his power. Clifton v. U.S., 4 How. 242; Bryant v. Stilwell, 24 Pa. St. 314; Turquand v. Strand Union, above cited.
This Court adopted that opinion in Botsford and accepted it as the law in Texas throughout the twentieth century. See, Austin & W.R. Co. v. Cluck, 77 S.W. 403, 404 (Tex. 1903). See also, the concurring opinion of Justice Calvert in Texas Emp. Ins. Ass’n. v. Hatton, 255 S.W.2d 848, 851 (Tex. 1953) (“a contrary rule prevails in some states and was once urged upon the courts of this state, but it was rejected by this court in a forceful opinion by Judge Brown in the [Cluck] case”).
Planned Parenthood v. Casey reaffirmed the basic holding in Roe v. Wade and recognized that “[o]ur law forges constitutional protections to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” Planned Parenthood v. Danforth makes clear that there are certain important life activities in which only one spouse can make the final decision. It is always given to the one whose own body is involved:
The obvious fact is that when the wife and the husband disagree on this decision [abortion], the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor.
The Cruzan ruling was a narrow one. The Court only assumed, and it did not decide, that an individual had a right to refuse life-saving treatment. The opinions of the four dissenting justices (497 U.S. at pg. 300), and the concurring opinion of Justice O’Connor (497 U.S. at pg. 286), indicate that at least five justices believed that there was a right of a mentally competent adult to refuse life-saving medical treatment or life-saving nutrition. A “right to die” is personal autonomy over one’s body to the very last moment of earthly existence. At the heart of one’s privacy rights under the federal constitution is a notion that each person is entitled to his personal liberty. Justice Stevens stressed this point when he stated that “the concept of privacy embodies the moral fact that a person belongs to himself and not others nor to society as a whole.” See, Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 777 n.5 (1986) (Stevens, J., concurring).
Although Botsford is believed to be the first Supreme Court case to recognize the privacy rights that each person has in their body, many jurists and scholars begin the discussion with Justice Brandeis’ famous dissent in Olmstead v. United States, 277 U.S. 438, 478 (1928), where he characterized “the right to be let alone” as “the right most valued by civilized men.” See also, Samuel D. Warren & Louis D. Brandeis, “The Right to Privacy,” 4 Harv.L.Rev. 193 (1890). Thus, this right to each person’s autonomous privacy in their own bodies has been a part of American Jurisprudence since the 1890’s.
Justice Blackmun in Planned Parenthood v. Danforth, 428 U.S. at pg. 70 n.10 & n.11, stated that in a marriage “[w]e deal with a right of privacy older than the Bill of Rights, older than our political parties, older than our school system.”
As the Court recognized in Eisenstadt v. Baird, “the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup.
Mr. and Mrs. Clayton were “two individuals each with a separate intellectual and emotional makeup.” Mrs. Clayton did not have the right to injure the emotional makeup of her husband by hiring an independent videographer to tape record Clayton’s most intimate moments in his marital home.
The problem with Richards’ attempt to rely upon the common law for his argument that Marie Clayton had the legal right to give him permission to covertly videotape Clayton in his marital home is that the common law language of privacy has traditionally been used to protect the inviolability, sanctity and sanctuary of the husband and wife as one, with the husband recognized as the one. See, for example, Trammel v. United States, 445 U.S. 40, 44 (1980) (stating that the spousal disqualification of a wife testifying against her husband came from a canon of medieval English jurisprudence that the “. . . husband and wife were one, and that since the woman had no recognized separate legal existence, the husband was that one”) (emphasis added). This common-law prohibition against the wife having any dominion and control over the husband has been so strong that it has only been since the 1980’s that the husband’s right of marital rape has been successfully challenged in some states. See, for example, Warren v. State, 336 S.E.2d 221 (Ga. 1985). The court there considered and rejected the following rationales to support the common-law tradition that a husband could not be charged with marital rape:
(1) Through the marital contract, a woman agrees to have sex with her husband at any and all times;
(2) A woman is her husband’s property, thus he may make use of her in whatever way he sees fit; and
(3) A woman’s legal existence is incorporated into that of her husband through marriage.
Another more recent case along the same lines is In re Estate of Peters, 765 A.2d 468, 474 (Vt. 2000), where the personal physical autonomy of each marital spouse is fully supported:
We reject entirely the notion that marriage creates any kind of implied “blanket consent to sexual contact.” The distinction between marital and nonmarital criminal rape is based on archaic “common-law doctrines that a woman was the property of her husband.” People v. Liberta, 64 N.Y.2d 152, 485 N.Y.S.2d 207, 474 N.E.2d 567, 573 (1984). “A married woman has the same right to control her own body as does an unmarried woman.” Id.
Richards is arguing here that not only does that common-law doctrine of a husband’s absolute right of ownership and control of his wife’s body still exist; but he also argues, [fair being fair] that the wife in Texas has that same control over the husband’s body. Either one can hold the other’s naked body, or sexual activity, up for private viewing in the marital home by a third-party videographer. In theory, Richards would argue that he could videotape a marital rape as long as he had permission of one of the spouses. If Richards could videotape such an event with the husband’s permission, why wouldn’t the husband be free to invite his friends to come over and watch him sexually dominate and control his wife through that same two-way mirror?
The above-described scenario has been called “visual rape.” See, Shuldiner, “Visual Rape: A Look at the Dubious Legality of Strip Searches,” 13 J. Marshall L.Rev. 278 (1980). Whether or not one is talking about looking at or videotaping another person’s sexual activities in the bedroom, or a strip search, both constitute a serious intrusion upon personal rights. The experience has been described in Justice v. City of Peach Tree City, 961 F.2d 188, 192 (11th Cir. 1992):
It is axiomatic that a strip search represents a serious intrusion upon personal rights. In Mary Beth G., the court referred to strip searches as “demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission.” Mary Beth G., 723 F.2d at 1272.
The arguments of Richards fly in the face of many of the public policy reasons for our society’s support of the institution of marriage. The United States Supreme Court in discussing a class action challenging marriage regulations promulgated by the Missouri Division of Corrections held that the regulations were unconstitutional in that they prohibited inmates from marrying other inmates or civilians unless the prison superintendent approved the marriage after finding that there were compelling reasons for doing so. See, Turner v. Safley, 482 U.S. 78, 95-96 (1987). Justice O’Connor, speaking for the court, found that marriage provided numerous benefits, even to prisoners:
The right to marry, like many other rights, is subject to substantial restrictions as a result of incarceration. Many important attributes of marriage remain, however, after taking into account the limitations imposed by prison life. First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements *96 are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated. Finally, marital status often is a precondition to the receipt of government benefits (e.g., Social Security benefits), property rights (e.g., tenancy by the entirety, inheritance rights), and other, less tangible benefits (e.g.. legitimation of children born out of wedlock). These incidents of marriage, like the religious and personal aspects of the marriage commitment, are unaffected by the fact of confinement or the pursuit of legitimate corrections goals.
Be it marital rape or visual rape by a third party, it is hard to argue that those acts “are expressions of emotional support and public commitment.” They are recognitions of the failure of the marriage! Nor is either act “an expression of personal dedication.” Neither acts are expressions of the unity of the marriage. Richards’ acts were an invasion of the privacy of Clayton, destructive of the marriage, and against public policy.
The 1978 abrogation of the inter-spousal tort immunity doctrine in Texas is a change that came about due to modern attitudes toward marriage. In Bounds v. Caudle, 560 S.W.2d 925, 926 (Tex. 1978), this Court, after examining the common law origins of the doctrine, held that inter-spousal immunity for willful and intentional torts no longer applied. The arguments that Richards is making before this Court are those same justifications in years past that were offered for tort immunity and the marital rape exemption. See also, Price v. Price, 732 S.W.2d 316, 318 (Tex. 1987).
Parental immunity was also removed as a defense in Jilani v. Jilani, 767 S.W.2d 671 (Tex. 1988). If Clayton had been in a motel room, he would have had an expectation of privacy. See, Boyle v. State, 820 S.W.2d 122, 152 (Tex.Crim.App. 1991) (Baird, J., concurring) (guest in motel does not lose expectation of privacy in rented premises until occupancy terminated), cert. den’d. 112 S.C. 1297 (1992). It would be ironic if Clayton would not be entitled to an expectation of privacy in his marital bedroom when he would have been entitled to that if the video recorder had been set up in a motel room. An even stronger analogy is the case of Minnesota v. Olson, 495 U.S. 91, 99-101 (1990) (overnight guest has a reasonable expectation of privacy in host’s home).
Under the concept that marriage suspends a wife’s legal existence, the husband acquired all of his wife’s choses in action and became liable for her torts, making it impossible for one spouse to sue the other. The Bounds case noted, however, that there have been major changes in recent years in laws regarding marital property and the marital relationship. Under Section 3.001 of the Texas Family Code, a wife’s recovery for personal injuries other than for loss of earning capacity and medical expenses is her separate estate. Additionally, Section 1.105 of the Texas Family Code now permits a spouse to sue and be sued without the joinder of the other spouse. Finally, the Code provides that the wife has the sole management, control, and disposition of her separate property. Tex.Fam.Code Ann. § 3.101. Finally, another area affected by reforms in family law is Texas’ allowance of no-fault divorce proceedings. Tex.Fam.Code Ann. § 6.001.
In Bounds, the Court reviewed the public policy argument that stressed the importance of domestic tranquility. Bounds, 560 S.W.2d at pg. 927. See also, Felderhoff v. Felderhoff, 473 S.W.2d 928, 933 (Tex. 1971). This Court rejected the notion that suits for willful or intentional torts would disrupt such traditional family harmony: “The peace and harmony of a home which has already been stressed to the point where an intentional physical attack could take place will not be further impaired by allowing a suit to be brought to recover damages for the attack.” Bounds, 560 S.W.2d at pg. 927. When this marriage reached the point that Mrs. Clayton hired Richards to videotape her husband’s sexual activities to use in a divorce case, the marriage had long since lost any family harmony. The existence of no-fault divorces eliminates any arguable need for such evidence.
Richards provided Mrs. Clayton with crucial assistance in monitoring and videotaping her husband’s sexual activities while she was out of town. Richards is liable for this tortuous activity under Texas case law and Subsection (b) of Restatement (Second) § 876. See, Juhl v. Airington, 936 S.W.2d 840, 844 (Tex. 1997). The acts of Richards meet those criteria set out by this Court in that opinion:
Comment d of section 876 lists five factors which can be relevant to whether the defendant substantially assisted the wrongdoer. These include: (1) the nature of the wrongful act; (2) the kind and amount of the assistance; (3) the relation of the defendant and the actor; (4) the presence or absence of the defendant at the occurrence of the wrongful act; and (5) the defendant’s state of mind. Restatement (Second) § 876 cmt d. Except for the “presence or absence at the occurrence,” all of these factors would cut against liability in this case.
See also, LeCrone v. Ohio Bell Telephone Co., 201 N.E. 2d 533, 538 (Oh.Ct.App. 1963).
The acts of Richards were a “cause in fact” of the injuries and damages suffered by Clayton. “Foreseeability” exists when one sets up a video camera pointing toward the marital bed. A person of ordinary intelligence and prudence would understand and appreciate the cause and effect. This is particularly so when the wife has hired the videographer to catch the husband in an adulterous act. See, Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992) (“there can be concurrent proximate causes of an [injury] . . . . All persons whose negligent conduct contributes to the injury, proximately causing the injury, are liable”). The summary judgment filed by Richards in the trial court should have been denied.
A plaintiff’s petition that fails to state a cause of action is subject to dismissal. However, the question cannot be resolved procedurally by a motion for summary judgment. The issue must first be addressed procedurally by filing special exceptions to that pleading. As Chief Justice Pope said in Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983):
The court of appeals, however, erred in affirming the summary judgment of the trial court. Whether pleadings fail to state a cause of action may not be resolved by summary judgment. In Texas Department of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex. 1974), we wrote:
[O]nly after a party has been given an opportunity to amend after special exceptions have been sustained may the case be dismissed for failure to state a cause of action . . . . This court believes that the protective features of special exception procedure should not be circumvented by a motion for summary judgment on the pleadings where plaintiff’s pleadings . . . fail to state a cause of action.
Richards has procedurally put the cart before the horse and this Court should refuse to consider any question about the existence of a cause of action until Clayton has been accorded the procedural due process of an opportunity to respond to special exceptions to his pleadings.
The document entitled “Affidavit” is not competent summary judgment evidence.
An affidavit is “a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths and officially certified to by the officer under his seal.” Tex.Gov’t.Code Ann. § 312.011, Vernon’s (1988). The jurat, which is missing in this case, is a certificate by a competent officer that the writing is sworn to by the person who signed it. Hukin v. Conner, 928 S.W.2d 180, 183 (Tex.App.—Houston [14th] 1996, writ den’d.). Here, the Petitioner’s affidavit merely contains an acknowledgement and not a jurat stating that he is swearing to the truthfulness of the document. See Exhibit “2” to original response of Clayton. Without a jurat or authorization from an officer authorized to administer oaths, a statement is not an affidavit and is not competent summary judgment proof. Gonzales v. Phoenix Frozen Foods, Inc., 884 S.W.2d 587, 590 (Tex.App.—Corpus Christi 1994, no writ). Although Respondent did not object at trial, the error is not waived. City of San Juan v. Gonzales, 22 S.W.3d 69 (Tex.App.—Corpus Christi 2000); Perkins v. Crittenden, 462 S.W.2d 565, 568 (Tex. 1970). The absence of the jurat is a substantive defect that can be raised for the first time on appeal. Id. This absence of the jurat leaves the summary judgment evidence incompetent. Id. Here, the document entitled “Affidavit” did not contain the requisite jurat, and, as such, is incompetent summary judgment evidence. See Id.
The motion for summary judgment filed by Richards was not a no-evidence motion filed pursuant to Tex.R.Civ.P. 166a(i). The motion was one filed pursuant to Tex.R.Civ.P. 166a(c). See, Roth v. FFP Operating Partners, 994 S.W.2d 190, 194 (Tex.App.—Amarillo 1999, pet. den’d.); Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 435-436 (Tex.App.—Houston [14th Dist.] 1999, no pet.); Thomas v. Clayton Williams Energy, Inc., 2 S.W.3d 734, 737 n.1 (Tex.App.—Houston [14th Dist.] 1999, no pet.) (Clayton Williams failed to give Thomas “fair notice” that it was moving for a summary judgment under Rule 166a(i)). A summary judgment motion under Rule 166a(c) is entirely different from a summary judgment motion brought under Rule 166a(i). A good discussion of the difference is found at Kimber v. Sideris, 8 S.W.3d 672, 674-676 (Tex.App.—Amarillo 1999, no pet.). Under the standard of review for a traditional summary judgment motion, Richards must have conclusively established the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. This he has failed to do. The summary judgment evidence does not conclusively establish the pertinent facts or the reasonable inferences to be drawn from them. The factual issues in this case are ones for the jury. Mitchell v. Missouri-Kansas-Texas R. Co., 786 S.W.2d 659, 662 (Tex. 1990), cert. den’d., 498 U.S. 896 (1990). Because Richards failed to satisfy his burden of proof as a matter of law, Clayton had no duty to meet any putative no-evidence claim. The no-evidence point was not preserved.
Judge Cardozo, while still on the Supreme Court of New York, wrote in Schloendorff v. Society of New York Hospital, 105 N.E. 92, 93 (N.Y. 1914), that a surgeon who performs an operation without his patient’s consent commits a trespass, and stated that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body.” Treatises of that era echo this understanding and refer to the tort of battery as protecting a right of self-ownership. “The plainest and simplest legal rights are those of the person. A man owns his body and limbs more unquestionably and unqualifiedly than his stock in trade or his farm . . . . [One’s body] belongs absolutely to the individual; and to him alone.” Francis Hilliard, 1 The Law of Torts 197 (2d Ed. 1861).
As discussed above in the Cruzan case, 497 U.S. at pg. 278, the court acknowledged the existence of a “liberty interest” in refusing unwanted medical treatment and connecting that interest with the notion of privacy. Under Richards’ scenario and arguments in this case, a heart surgeon in Texas would only have to get the wife to sign the consent forms for open-heart surgery on the husband. The husband’s consent would not be necessary! Assuming that the husband was of sound mind, no case within Texas jurisprudence has ever suggested that a physician would not have to bother to get his consent to perform surgery on the husband’s body.
Coming down to judges, lawyers and litigants from the earliest beginnings of the common-law system is that Latin phrase “Ubi jus, ibi remedium.” Where it is declared that “for every right there shall be a remedy, and every court having jurisdiction of the one may, if necessary, frame the other.” Clayton has a cause of action against Richards for the invasion of his privacy. Richards cannot appeal to antiquated common-law rules, which were not adopted in Texas as to marriages, to immunize himself from liability. Permission to videotape the activities of Clayton in his bedroom had to come from him and not from the wife that was contemplating filing for divorce.
This Court must recognize this cause of action against Richards and send it back to the trial court for a trial on the merits. Professor Laurence H. Tribe in his magisterial work on American Constitutional Law (Second Ed.) § 18-2, pg. 1692, has noted that “if the conception of liberty is sufficiently developed to define a sphere of private autonomy free from both governmental and private infringement, a government decision not to protect individuals from private infringements will plainly be a species of unconstitutional state action.” In 1886, Justice Bradley warned that any beginning encroachment on a citizen’s privacy rights can be but the beginning of even more dangerous encroachments. Boyd v. United States, 116 U.S. 616, 635 (1986):
It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. (emphasis added)
This Court has a duty to exercise great vigilance in the protection of the privacy rights of citizens of Texas. All of us are inundated on a daily basis with information on the increasing ability of the government and private citizens to spy upon one another’s activities. Kyllo v. United States, 533 U.S. 27 (2001) (the court refused to allow the government to use thermal imaging devices, from vehicles outside a home, to gather information from inside the marital home. Such covert activity was a violation of the Fourth Amendment to the United States Constitution.
WHEREFORE, PREMISES CONSIDERED, the respondent, Clayton, prays that this Court will decline to grant the Petition for Review in this case. Clayton further prays for all that he is entitled to in either law or in equity.
Respectfully
submitted,
REAUD,
MORGAN & QUINN, INC.
801
Laurel Street
P.
O. Box 26005
Beaumont,
Texas 77720-6005
(409)
838-1000
FAX
(409) 833-8236
By
______________________________
J.
Trenton Bond
State
Bar No. 00785707
By
______________________________
Richard
J. Clarkson
State
Bar No. 04323000
Glen
W. Morgan
State
Bar No. 14438900
Attorneys
for Respondents
CERTIFICATE OF SERVICE
I hereby certify that on the _____ day of December, 2001, I have served a true copy of the above and foregoing on the adverse parties by forwarding a copy of same to all opposing counsel herein.
Richard J. Clarkson