Valenzuela v. Aquino

• Decision Date: 05 May 1993
• Docket Number: No. D-0740,D-0740
• Parties: Eliseo VALENZUELA, Jr. et al., Petitioners, v. Eduardo AQUINO et al., Respondents.
• Court: Texas Supreme Court

Page 512

853 S.W.2d 512

Eliseo VALENZUELA, Jr. et al., Petitioners, v. Eduardo AQUINO et al., Respondents.

No. D-0740.

Supreme Court of Texas.

May 5, 1993.

Clifford L. Zarsky, Corpus Christi, William Charles Bundren, Dallas, for petitioners.

Frank E. Weathered, Corpus Christi, for respondents.

OPINION

HECHT, Justice.

Dr. Eduardo Aquino and his family ("Aquino") sued Eliseo 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. ¹ 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. ²

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.

GONZALEZ, Justice, dissenting.

This case squarely presents the issue of whether an otherwise lawful picketing operation may be directed toward a private home. When a residence is used exclusively for residential purposes, I would hold that the persons living in that home have a right to enjoy the home without intrusion of their privacy by the sights and sounds that they might have to endure at the office. Under the facts of this case, I would hold that as a matter of law, the Aquinos showed invasion of privacy with evidence that petitioners intentionally intruded into respondents' solitude in a manner that is highly offensive to a reasonable person. In short, under this record, the state has a compelling interest in protecting the common law right of privacy of an individual, ¹ and can therefore place reasonable restrictions on the picketers' constitutional right of free expression. The injunction at issue was sufficient to accomplish this end. I would thus affirm the judgment of the court of appeals.

I.

Dr. Eduardo Aquino is an obstetrician and gynecologist in Corpus Christi, Texas. Part of his practice includes performing abortions. Mercedes Aquino, Dr. Aquino's wife, is the office manager of his practice.

Since 1982, petitioners have picketed the two clinics where Dr. Aquino performs abortions. In March 1988, the petitioners began to also picket his residence which faces a cul-de-sac. On four consecutive Tuesdays, between 4:30-6:00 p.m., a group of picketers (the size of the group varied from 11 to 25), walked up and down the sidewalk and street where Dr. Aquino's residence stands. The picketers walked in front of the Aquinos' residence, two houses over and two houses back carrying signs which, among other things, read "Abortion is Murder" and "God Gives Life, Aquino Takes Away." The picketers did not block the driveway or interfere with access to the property. Law enforcement officers who observed the activity testified that the picketers breached no state law or city ordinance. Nonetheless, as one can imagine, the effect the picketers had on the family was devastating. It severely disrupted the tranquility of the home and some of the family members became ill.

After the fourth protest, Dr. and Mrs. Aquino, individually and on behalf of their minor children, filed suit against nine individuals and a pro-life organization seeking injunctive relief and damages for negligent infliction of emotional distress that the picketing allegedly caused them and their family. They obtained a temporary restraining order denying the petitioners the right to picket closer than one-half mile from the Aquinos' house. The court of appeals invalidated this order as overly broad. Valenzuela v. Aquino, 763 S.W.2d 43 (Tex.App.--Corpus Christi 1989, no writ).

The Aquinos subsequently proceeded to trial on their suit for a permanent injunction and damages. After a jury trial, the case was submitted to the jury on the theories of negligent and grossly negligent infliction of mental distress. The jury answered the questions favorably for the Aquinos and also found that the picketing was focused or directed upon the Aquino residence. In conformity with the jury verdict, the trial court rendered an $810,000 judgment against the petitioners as well as a permanent injunction which prohibited the petitioners from engaging in any type of picketing within 400 feet of the centerline of Dr. Aquino's property.

The petitioners perfected an appeal to the court of appeals asserting that the judgment infringed upon their rights of freedom of speech under both the federal and Texas constitutions. The court of appeals reversed the damage award but affirmed the injunction. I would affirm the judgment of the court of appeals.

II.

The petitioners assert that the permanent injunction is invalid under both the United States and the Texas Constitutions' guarantees of freedom of speech. In Davenport v. Garcia, 834 S.W.2d 4 (Tex.1992), we held that article I, section 8 of the Texas Constitution provides greater rights of free expression than its federal equivalent, and that we could benefit from the insights of well-reasoned and developed federal and state jurisprudence concerning corresponding constitutional guarantees.

The First Amendment to the United States Constitution provides, among other things, that "Congress shall make no law ... abridging the freedom of speech." U.S. CONST. amend. I. In 1925, the Supreme Court decided that the First Amendment applied to all state action through the Fourteenth Amendment, thus prohibiting any governmental body, including the courts, from unwarrantedly restricting a citizen's speech. See Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 630, 69 L.Ed. 1138 (1925). The Supreme Court subsequently recognized that the First Amendment's speech clause protects certain expressive conduct, such as burning the United States flag at a political convention, wearing black arm-bands to protest a war, conducting a silent sit-in against segregationist policies, picketing a supermarket's unfair labor practices, and flying a red flag as a political statement. See, e.g., Texas v. Johnson, 491 U.S. 397, 404-05, 109 S.Ct. 2533, 2539-40, 105 L.Ed.2d 342 (1989); Tinker v. Des Moines Ind. Community Schools, 393 U.S. 503, 505, 89 S.Ct. 733, 735, 21 L.Ed.2d 731 (1968); Amalgamated Food...