                         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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