COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00039-CV
ROBERT J. SUMIEN APPELLANT
V.
CAREFLITE APPELLEE
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FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In one issue, Appellant Robert J. Sumien appeals the trial court’s order
granting CareFlite’s summary judgment motion and dismissing his claim for
invasion of privacy. We affirm.
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See Tex. R. App. P. 47.4.
II. Factual and Procedural History
Sumien worked for CareFlite as an emergency medical technician. His
ambulance partner, Jan Roberts, posted a comment on the Facebook “wall” of
another CareFlite employee, Scott Schoenhardt, that referenced wanting to slap
a patient whom Roberts had recently transported. Delicia Haynes, CareFlite
Compliance Officer Sheila Calvert’s sister, saw Roberts’s comment, was
offended, and notified Calvert. Calvert, who was Facebook “friends” with
Schoenhardt and, thus, had access to his “wall,” read Roberts’s comments.
After an exchange between Roberts and Calvert, Roberts posted a
comment on her own Facebook “wall” stating,
Yes, I DO get upset on some calls when my patient goes off in the
house and I have to have a firefighter ride in with me because I fear
for MY own safety. I think that is a valid excuse for wanting to use
some sort of restraints. Just saying.
In response, Sumien posted a comment on Roberts’s “wall” stating, “Yeah
like a boot to the head . . . . Seriously yeah restraints or actual HELP from PD
instead of the norm.” Haynes saw this comment, was offended, notified Calvert,
and complained in writing to CareFlite management about both Roberts’s and
Sumien’s comments.
After CareFlite terminated both Roberts and Sumien, Sumien sued
CareFlite and brought causes of action for unlawful termination, intrusion upon
seclusion, and public disclosure of private facts. CareFlite filed a hybrid no-
evidence and traditional summary judgment motion relating to all three causes of
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action, and the trial court granted this motion without specifying the ground upon
which it relied and dismissed Sumien’s claims.
III. Intrusion upon Seclusion
In his sole issue, Sumien claims that the trial court improperly granted
CareFlite’s motion for summary judgment on his intrusion upon seclusion claim.
A. Standard of Review
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). When a party moves for summary judgment
under both rules 166a(c) and 166a(i), we will first review the trial court’s judgment
under the standards of rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d
598, 600 (Tex. 2004). If the appellant failed to satisfy that burden, then there is
no need to analyze whether the appellee’s summary judgment proof satisfied the
less stringent rule 166a(c) burden. Id.
After an adequate time for discovery, the party without the burden of proof
may, without presenting evidence, move for summary judgment on the ground
that there is no evidence to support an essential element of the nonmovant’s
claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the
elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286
S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the
nonmovant produces summary judgment evidence that raises a genuine issue of
material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d
425, 426 (Tex. 2008).
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When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199
S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for
evidence that would enable reasonable and fair-minded jurors to differ in their
conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168
S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if
reasonable jurors could, and we disregard evidence contrary to the nonmovant
unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the
nonmovant brings forward more than a scintilla of probative evidence that raises
a genuine issue of material fact, then a no-evidence summary judgment is not
proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc.
v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030
(2004).
B. Intrusion upon Seclusion Law and Analysis
An unwarranted intrusion upon seclusion is proved by showing (1) an
intentional intrusion, physical or otherwise, upon another’s solitude, seclusion, or
private affairs or concerns that (2) would be highly offensive to a reasonable
person. Valenzuela v. Aquino, 853 S.W.2d 512, 513 (Tex. 1993).
Sumien does not explain on appeal how the first element of this tort is
satisfied—how any act by a CareFlite employee was an invasion upon Sumien’s
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private affairs or concerns. See id. Instead, he first argues that his comment
was protected against disclosure because his right to discuss patient restraints
outweighed any issue of public concern. See Tex. Comptroller of Pub. Accounts
v. Att’y Gen. of Tex., 354 S.W.3d 336, 337, 341–48 (Tex. 2010) (balancing an
individual’s right of privacy against the public’s right to government information
and holding that disclosure of employee birth dates constituted a “clearly
unwarranted invasion of personal privacy” and that these dates were exempt
from the Texas Public Information Act’s disclosure requirements). However,
Sumien’s argument regarding public disclosure of private facts is not relevant to
whether CareFlite intruded upon his seclusion because disclosure is not an
element of the intrusion tort. See Clayton v. Richards, 47 S.W.3d 149, 153 (Tex.
App.—Texarkana 2001, pet. denied) (recognizing that liability for intrusion upon
seclusion does not turn on publication of any kind and that the core of the offense
is prying into the private domain of another, not the publicity that may result).
Next, Sumien argues that employers cannot fire employees for engaging in
concerted workplace-related discussions on Facebook. But this argument is also
irrelevant because our inquiry does not involve whether CareFlite could terminate
Sumien for posting his Facebook comment but, instead, involves whether
CareFlite intruded upon Sumien’s private affairs or concerns by viewing this
comment. See Valenzuela, 853 S.W.2d at 513.
Finally, Sumien contends that CareFlite intruded upon his seclusion
because he did not realize that Roberts’s Facebook “friends” could view the
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comment that he posted on Roberts’s “wall.” While Sumien presented evidence
showing that he misunderstood Roberts’s Facebook settings, did not know who
had access to Roberts’s “wall,” and did not know how CareFlite was able to view
his comment, he did not present any evidence to show that his misunderstanding
meant that CareFlite intentionally intruded upon his seclusion. See id.
Therefore, even viewing the record in the light most favorable to Sumien,
see Sudan, 199 S.W.3d at 292, Sumien did not produce more than a scintilla of
probative evidence raising a genuine issue of material fact regarding his intrusion
upon seclusion claim. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton, 249 S.W.3d
at 426; Valenzuela, 853 S.W.2d at 513. Accordingly, the trial court did not err by
granting CareFlite’s no-evidence motion for summary judgment, and we overrule
Sumien’s sole issue without reaching the traditional summary judgment standard.
See Smith, 288 S.W.3d at 424; Ford Motor Co., 135 S.W.3d at 600.
IV. Conclusion
Having overruled Sumien’s sole issue, we affirm the trial court’s judgment.
PER CURIAM
PANEL: MCCOY, DAUPHINOT, and WALKER, JJ.
DELIVERED: July 5, 2012
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