Moore v. Big Picture Co.
| Decision Date | 29 September 1987 |
| Docket Number | No. 86-2600,86-2600 |
| Citation | 828 F.2d 270 |
| Parties | 14 Media L. Rep. 1865 Gary MOORE, Plaintiff-Appellee, v. The BIG PICTURE COMPANY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Dawn Bruner Finlayson, J. Tullos Wells, San Antonio, Tex., for defendant-appellant.
Marvin G. Pipkin, Richard G. Tate, San Antonio, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before WILLIAMS and HILL, Circuit Judges, and MENTZ *, District Judge.
This appeal presents several issues regarding the interpretation and application of the elements of an invasion of the right of privacy cause of action. The original dispute arose when appellee Gary Moore accused appellant The Big Picture Company (Big Picture) of having invaded his right of privacy through defamation, business disparagement, tortious interference with a contract, public portrayal in a false light, and misappropriation of name in its efforts to secure an audio-visual contract at Kelly Air Force Base near San Antonio, Texas. Moore, an employee of Southwest Films (Southwest), the previous holder of the audio-visual contract, claimed that, among other things, Big Picture had made false statements about him and had placed his name on a proposed staffing chart without his permission. At trial, the district court upheld the jury's finding of liability on the issues of public portrayal in a false light and misappropriation of name. Of the five original claims, only these two are before us. We reverse on the false light cause of action, but affirm the jury's determination as to Big Picture's liability to Moore for the misappropriation of his name.
Kelly Air Force Base, acting in accordance with standard procedures, requested that bids be made for the base's audio-visual contract. 1 Big Picture, which had held a number of other government contracts, submitted the lowest of five bids. Then, as the next step in the contract award process, certain government compliance officers (the Bid Examining Panel) conducted an on-site review of Big Picture at its New Jersey offices. The purpose of the visit was to gather information and to assure the government that Big Picture had the ability to perform the contract.
As part of its presentation to the Bid Examining Panel, Big Picture distributed a proposed staffing chart illustrating the number of people who would be working for Big Picture and the functions they would be performing. Appellee, Gary Moore, was included on the chart as Big Picture's media coordinator. There is some testimony that representatives from Big Picture may also have told the Bid Examining Panel that Moore had already accepted a position with the company, even though he had never spoken to anyone at Big Picture about the possibility of future employment. It was customary in the audio-visual industry, however, for the new contractor to hire at least some of the employees of the outgoing contractor in order to insure a smooth transition.
Also during the meeting with the Bid Examining Panel, Big Picture indicated that it had received certain "inside" information about the operation of Kelly Air Force Base from an employee of Southwest, the then current contractor. Moore may have been named by someone at that meeting as Big Picture's source of information. In any event, one of the members of the Bid Examining Panel, Barton Neal, notified Moore's supervisor at Southwest that Moore had been providing Big Picture with information. Moore testified that this false implication produced a strained relationship between himself and his co-workers.
Moore continued to work for Southwest until the termination of its contract with Kelly Air Force Base in February 1984. He was unable, however, to obtain other employment in the audio-visual industry after his job with Southwest was completed. He claims that this was the result of the statements made about him by Big Picture.
On October 19, 1984, Moore filed suit against Big Picture in state court alleging five separate causes of action for invasion of privacy: defamation, business disparagement, tortious interference with a contract, public portrayal in a false light, and misappropriation of name. Big Picture timely removed the action to the United States District Court for the Western District of Texas.
Upon completion of discovery, Big Picture filed a motion for summary judgment as to all of Moore's claims. The district court granted partial summary judgment, dismissing Moore's defamation action as a matter of law. The case then was tried to a jury on the four remaining causes of action. At the close of appellee's case, Big Picture moved for a directed verdict on all counts. The court granted a partial directed verdict, dismissing Moore's claim of tortious interference with a contract. At the close of Big Picture's case, both sides rested. The jury found Big Picture liable to Moore on the three remaining claims and awarded him $21,000 for lost wages, $10,000 for past mental anguish, and $25,000 for exemplary damages.
Big Picture filed two post-trial motions with the court. Its motion for judgment notwithstanding the verdict asserted that Moore had failed to introduce evidence establishing the requisite elements of his three remaining causes of action, and its motion to amend the judgment claimed that the statements about appellee were subject to either an absolute or a qualified privilege. The court granted appellant's motion for judgment notwithstanding the verdict as to the business disparagement claim, but affirmed the remainder of the judgment. Big Picture filed timely notice of appeal.
Big Picture contends that Moore failed to establish all the essential elements of his cause of action for invasion of privacy, and that, therefore, the district court erred in refusing to grant Big Picture's motion for judgment notwithstanding the verdict. The applicable standard for reviewing a motion for judgment n.o.v. is contained in Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir.1969).
[T]he Court should consider all of the evidence--not just that evidence which supports the non-mover's case--but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied....
Id. at 374. Therefore, we may reverse the decision of the district court only if the jury could not reasonably have reached its decision based upon the evidence presented.
Before addressing the merits of appellant's claims, a brief discussion of the complicated nature of an invasion of the right of privacy cause of action is needed. "The right of privacy has been defined as the right of an individual to be left alone, to live a life of seclusion, to be free from unwarranted publicity." Billings v. Atkinson, 489 S.W.2d 858, 859 (Tex.1973). Texas courts have looked to the Restatement (Second) of Torts as the definitive source of guidance in cases involving invasion of the right of privacy. Id. at 860. See also Gill v. Snow, 644 S.W.2d 222 (Tex.App.--Fort Worth 1982); Moore v. Charles B. Pierce Film Enterprises, Inc., 589 S.W.2d 489 (Tex.Civ.App.--Texarkana 1979, writ ref'd n.r.e.). The Restatement provides that:
(1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.
(2) The right of privacy is invaded by
(a) unreasonable intrusion upon the seclusion of another ... or
(b) appropriation of the other's name or likeness ... or
(c) unreasonable publicity given to the other's private life ... or
(d) publicity that unreasonably places the other in a false light before the public....
Restatement (Second) of Torts, Sec. 652A (1977). The district court determined that Big Picture was liable to Moore for invasion of the right of privacy only under the second and fourth factors, misappropriation of name and public portrayal in a false light. Because the analysis is different for each cause of action, we will consider them separately.
The Restatement describes the false light cause of action as follows:
One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
Restatement (Second) of Torts, Sec. 652E (1977). Big Picture claims that since there was no evidence that it gave any "publicity" to the statements allegedly made about Moore during the meeting with the Bid Examining Panel, it may not be held liable for placing Moore before the "public" in a false light. After reviewing all the relevant authorities, we hold in accordance with appellant's contentions.
We focus upon the amount of publicity required to support a false light cause of action. The Restatement does not contain a definition of "publicity" for use in false light claims. Section 652E, Comment a indicates only that Sec. 652C, Comment a, regarding appropriation of a name or likeness, is applicable as to "what constitutes publicity and the publicity of application to a simple disclosure." That reference, however, is particularly unhelpful. 2 Appellant contends that, for false light...
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