Cox Texas Newspapers, L.P. v. Wootten
59 S.W.3d 717
Tex. App.
2001
Check Treatment
BEA ANN SMITH, Justice.

On consideration of appellant’s motion for rehearing, we withdraw our opinion and judgment rendered on January 11, 2001, and substitute the following opinion.

Edward Wootten brought suit against Cox Texas Newspapers, L.P., doing business as the Austin American Statesman (the Statesman) for damages arising out of an article published by the Statesman that allegedly included photographs of his deceased wife. The Statesman moved for summary judgment, in part on free-speech grounds, and the trial court denied the motion. The Statesman now brings this interlocutory appeal from the denial of its motion for summary judgment. See Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(6) (West Supp.2001). We reverse the trial court’s denial of the Statesman’s motion for summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Wootten’s wife, Barbara, died in November of 1998. He engaged the services of Robert Falcon, owner of All Faith’s Funeral Service, to prepare his wife’s body for burial and for transfer from Austin to Arlington National Cemetery in Virginia for a military funeral. Wootten instructed Falcon that his wife wished to be buried in her own white gown with a crucifix on her chest and her hands folded over her prayer book. Wootten also told Falcon not to apply any makeup to her face and not to open the casket for anyone, as his wife did not want her body to be viewed. Falcon was to drape the closed casket in an American flag and have it flown to Virginia for burial. Barbara Wootten’s casket was shipped to Virginia two days after her death, and she was subsequently buried at Arlington National Cemetery.

On Sunday, March 14, 1999, the Statesman published an article entitled “Robert Falcon and the Cheap Way Out.” The article was sparked by one reporter’s curiosity about the practices and prices of the modern funeral business. That reporter approached Falcon in hopes of learning how and why Falcon offers funeral services at substantially lower prices than his competitors. Falcon agreed to allow the reporter and his photographer access to every aspect of the funeral home. The article that ultimately appeared in the newspaper described the many unique features of Falcon’s funeral business and detailed the reporter’s experience following Falcon on death calls and watching him prepare bodies and conduct funerals over the course of more than 200 hours during the fall and winter of 1998. The front-page article included a picture of a casket draped with an American flag on an airfreight pallet. On another page of the article, there was a small picture of an open casket with a woman lying inside dressed in a white gown with a crucifix on her chest and her hands folded over a prayer book. Her face was not shown.

Wootten was reading his Sunday newspaper when he noticed the front-page article about Falcon. An he read on, he discovered that the reporter and photographer had been following Falcon during the time that his wife’s body had been in Falcon’s care. He then recognized his wife as the person lying in the open casket. The article included this disclaimer: “Families who did not wish themselves or their deceased to be named or pictured in this story aren’t; others volunteered to share their experiences. In a few cases, identifiable details were omitted.” Woot-ten had never been informed that an article was being published, was never asked for permission to publish the image of his wife, and insists that he would have refused any such request. Wootten felt the use of his deceased wife’s photograph in an article entitled “The Cheap Way Out” sullied the dignity and solemnity he had hoped to provide her and violated her wish not to be viewed after her death.

Wootten subsequently filed suit against the Statesman, Falcon, and the funeral home. The Statesman moved for summary judgment claiming that Wootten could not succeed on any of the causes of action that he pleaded, that Wootten actually pled nothing more than invasion of privacy, and that the Statesman’s actions were privileged under the First Amendment and article 1, section 8 of the Texas Constitution. See U.S. Const, amend. I; Tex. Const, art. 1, § 8. The trial court denied the Statesman’s motion without stating any grounds, and the Statesman now appeals the interlocutory order of the trial court. Falcon and the funeral home are not parties to this appeal.

DISCUSSION

In general, the denial of a motion for summary judgment is an interlocutory order not reviewable on appeal. Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980); Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 428 (Tex.App.—Waco 1997, writ denied). However, section 51.014(a)(6) of the Texas Civil Practice and Remedies Code gives members of the electronic and print media, and those whose statements have been published in the media, the right to appeal from a denial of a motion for summary judgment that is based in whole or in part on a free-speech or free-press claim or defense. Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(6); see Delta Air Lines, 949 S.W.2d at 428. Moreover, in the interest of judicial economy, we may consider on appeal any claim raised in the media defendant’s motion and denied by the trial court, so long as the motion was based at least in part on free-speech grounds. Delta Air Lines, 949 S.W.2d at 429. Because the Statesman asserts in part that its actions are protected as conduct of a free press, the trial court’s denial of the Statesman’s motion for summary judgment is reviewable in its entirety. We review the trial court’s summary-judgment decision de novo. See Texas Dep’t of Ins. v. American Home Assurance Co., 998 S.W.2d 344, 347 (Tex.App.—Austin 1999, no pet.).

Summary judgment is proper if the movant establishes that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993). A defendant who conclusively negates at least one of the essential elements of each of the plaintiffs causes of action is therefore entitled to summary judgment. Id. In reviewing a summary judgment, we must accept all evidence favorable to the non-movant as true, indulging every reasonable inference and resolving all doubts in favor of the non-movant. Id.

I. Joint Tortfeasor Liability

A. Breach of Fiduciary Duty

Wootten contends that Falcon had a fiduciary duty to preserve the dignity of his wife’s dead body, which was breached when he allowed the Statesman access to the corpse. Wootten claims that the Statesman knew that Falcon was breaching this duty and that the Statesman participated in the breach by failing to get Wootten’s permission to take and publish photographs of his wife. Wootten’s first cause of action asserts that the Statesman should be held hable as a joint tortfeasor because the Statesman knowingly participated in the alleged breach of Falcon’s fiduciary duty to Wootten. This claim arises from the rule set forth in Kinzbach Tool Co. v. Corbett-Wallace Carp., 138 Tex. 565,160 S.W.2d 509, 514 (1942).

The Kinzbach case involved a suit for damages between two historicahy fierce competitors in the oil field tool business, Corbett-Wallace Corporation and Kinz-bach Tool Company. Id. at 510. The dispute involved Kinzbach’s negotiated purchase of Corbett’s sales-right contract on a patented tool. Because Corbett and Kinzbach were on unfriendly terms, Cor-bett contacted G.E. Turner, one of Kinz-bach’s employees, to broker the sale. Cor-bett told Turner that he would agree to sell the contract for no less than $20,000 and would pay Turner a commission out of the sale price if the sale was completed. Turner then approached Kinzbach about purchasing the contract but never disclosed that Corbett was willing to take as little as $20,000, or that Turner himself was expecting a commission from the sale. In the end, Kinzbach agreed to pay $25,000 for the contract, and Corbett promised Turner a commission of $5000. When Kinzbach found out about the inside deal, he sued both Turner and Corbett to have the $5000 commission credited toward the price of the contract.

The supreme court found as a matter of law that Turner abused his fiduciary relationship with his employer, Kinzbach, by failing to fully disclose the nature of his dealings with Corbett. Id. at 513-14. The court then went on to find Corbett hable as a joint tortfeasor.

It is settled as the law of this State that where a third party knowingly participates in the breach of duty of a fiduciary, such third party becomes a joint tort-feasor with the fiduciary and is ha-ble as such. It follows that when Cor-bett employed Turner, who it knew was Kinzbach’s fiduciary, under the circum stances and conditions we have already detailed, it became a party to the breach of duty committed by Turner, and therefore became a joint tort-feasor with Turner with regard to the rights of Kinz-bach.

Id. at 514 (citations omitted).

In the instant case, Wootten’s allegations parallel the elements of the Kinz-bach rule. He first asserts that he and Falcon had a fiduciary relationship. Woot-ten also alleges that the Statesman knew of Falcon’s fiduciary duty to Wootten to preserve the dignity of his wife’s body 1 and was aware that it was participating in Falcon’s breach of that duty. Wootten did not allege that the Statesman owed him a fiduciary duty independent of Falcon’s duty to preserve the dignity of his wife’s corpse.

The duties stemming from the relationship between Wootten and Falcon are two-fold: first, Falcon had a general duty to preserve the dignity of Barbara Woot-ten’s body as any funeral director has to preserve the dignity of any body entrusted to him; second, Falcon had a special duty to Wootten not to allow Barbara Wootten’s body to be viewed. This special duty was unique between Wootten and Falcon and there is no evidence that the Statesman knew or had reason to know of the special duty. A cause of action premised on contribution to a breach of a fiduciary duty under Kinzbach must involve the knowing participation in such a breach. See id. In this case, Wootten has presented no evidence that the Statesman knew about the contractual duty to prevent Barbara Woot-ten’s body from being viewed. Because Wootten has failed to assert that element of the claim, no cause of action exists against the Statesman under Kinzbach for the breach of the special duty. See id.

The next question is whether the Statesman’s publication of the photos of Barbara Wootten’s casket and body breached Falcon’s general duty to Wootten to preserve the dignity of his wife’s body. Photographs of deceased persons are not undignified per se, and generally cannot be said to violate the deceased’s dignity by mere publication. In this case, there was nothing about the photographs of Barbara Wootten’s body and casket that a reasonable finder of fact could find undignified. The image of a closed coffin draped with an American flag suggests to most viewers that the deceased is worthy of honor and respect. Nothing about this photograph offends the dignity of Wootten’s wife, who is not identified. Likewise, the photograph of a deceased woman in repose in a coffin, wearing a long white dress and a crucifix, with her face concealed and her hands solemnly enfolding a prayer book, is an image that accords both solemnity and dignity to the subject. No name or identifying characteristics are revealed. As a matter of law, the publication of these two photographs does not violate the general duty that Falcon owed to maintain Barbara Wootten’s dignity, and thus no cause of action will lie against the Statesman as a joint tortfeasor under the Kinzbach theory. 2 See id.

B. Breach of Contract and Tortious Interference with Contract

Wootten also contends that under Kinz-bach, the Statesman is liable for Falcon’s breach of contract. Wootten states that “the Statesman is liable as a joint tortfea-sor with Falcon for breaching the duty ‘to protect the dignity of the deceased and the deceased’s family’ and for violating the ‘specific instructions given to Falcon that there was to be no viewing of Mrs. Woot-ten’s body.’ ” We hold that Wootten cannot recover contract damages from the Statesman.

The Statesman was not a party to the contract between Wootten and Falcon. As a general rule, contract damages may not be obtained from a person who was not a party to the contract. Bernard Johnson, Inc. v. Continental Constructors, Inc., 630 S.W.2d 365, 369 (Tex.App.—Austin 1982, writ ref'd n.r.e.). Alternatively, however, damages may be sought from a third party for tortious interference with a contract. In order to succeed on such a claim, however, the plaintiff must show, among other things, that the third party intentionally interfered with the contract. See Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 664 (Tex.1990). Because Wootten does not maintain that the Statesman knew of his specific instructions to Falcon, Wootten cannot successfully allege intentional interference with that agreement. Further, we find no authority for the proposition that Kinz-bach allows for recovery for any breach of contract. We sustain the Statesman’s fourth point of error to the extent that Wootten is seeking contract damages from the Statesman for Falcon’s breach of promise to Wootten.

II. Emotional Distress

In its sixth point of error, the Statesman asserts that the trial court erred in failing to grant summary judgment on Wootten’s claim for intentional infliction of emotional distress. Wootten’s pleadings do not make any explicit claim for intentional infliction of emotional distress, and he does not seem to support any such cause of action on appeal. Wootten does, however, maintain that he is entitled to damages for the Statesman’s negligent infliction of emotional distress, and the Statesman has attacked this claim as well. Wootten has not set forth facts sufficient to support either of these causes of action.

A Negligent Inñiction

Texas does not generally recognize a cause of action for negligent infliction of emotional distress. Boyles v. Kerr, 855 S.W.2d 593, 597 (Tex.1993). A claimant may recover damages for mental anguish only in connection with the defendant’s breach of some other legal duty. Id. There must be some specific duty of care that arises from the relationship between the parties. Id. at 600. An exception to this rule is allowed for a bystander who witnesses a serious or fatal accident. Id. at 597-98. In this case, there is no special relationship between Wootten and the Statesman, and Wootten does not claim to be a bystander. Thus, Wootten cannot recover damages from the Statesman for mental anguish under a negligent infliction cause of action. See id. at 600.

B. Intentional Inñiction

Wootten does not specifically allege that he is entitled to intentional infliction damages, but his pleadings do contain a description of the Statesman’s actions as outrageous conduct that should not be tolerated. Because this issue was raised in the trial court, in the interest of judicial economy we will address the Statesman’s concerns about this possible cause of action.

Intentional infliction of emotional distress arises when (1) the defen dant acts intentionally or recklessly, (2) the defendant’s conduct is extreme and outrageous, (3) the defendant’s actions cause the plaintiff emotional distress, and (4) that emotional distress is severe. Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex.1993). Intentional infliction does not include mere insults, indignities, threats, annoyances, or other trivialities. Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 681 (Tex.App.—El Paso 1997, writ denied). Whether conduct is extreme and outrageous enough to qualify for the tort of intentional infliction is a question of law. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994).

Wootten has failed to state a cause of action against the Statesman for intentional infliction of emotional distress. He contends that the damages he sustained were the direct and proximate result of the Statesman’s negligent actions. Negligent conduct is neither intentional nor reckless. Such allegations cannot support a cause of action for intentional infliction.

Even if we construe the plaintiffs pleadings liberally so as to include intentional conduct, Wootten’s allegations still fail as a matter of law because the Statesman’s conduct cannot be said to be so outrageous as to be totally intolerable in a civilized society. See Twyman, 855 S.W.2d at 621. Taking pictures of a dead body is not intolerable; in fact, such pictures are frequently taken in a variety of situations. Publication of the rather dignified, albeit unauthorized, pictures of Barbara Wootten’s body was not extreme and outrageous conduct by the Statesman. 3

It has not been enough that the defendant has acted with an intent that is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct ... would entitle the plaintiff to punitive damages for another tort. The conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”

Brewerton v. Dalrymple, 997 S.W.2d 212, 215-16 (Tex.1999) (citations omitted). We sustain the Statesman’s sixth point of error.

III. Common-Law Negligence

Wootten asserts, outside of the pleadings, an independent cause of action against the Statesman for common-law negligence. Wootten’s petition only alleges the Statesman’s negligence in terms of its liability as a joint tortfeasor under Kinzbach. The pleadings state that the “Statesman’s participation as a joint-tort-feasor in breaching the contract was the result of the Statesman’s negligence” and describe the Statesman’s “negligence in breaching the fiduciary duty owed to plaintiff.” From the record, then, it is evident that Wootten did not raise an independent negligence claim in his pleadings despite Wootten’s attempts in his response to the Statesman’s motion for summary judgment and briefs to recast his pleadings as asserting a separate negligence cause of action. Further, when asked at oral argument to clarify the causes of action he was alleging, Wootten answered that his claims against the Statesman were limited to joint-tortfeasor liability and negligent infliction of emotional distress. Wootten did not amend his pleadings to reflect any additional negligence cause of action. The trial court could not have reached an independent negligence claim against the Statesman that was not before it. See Grant v. Southwestern Elec. Power Co., 20 S.W.3d 764, 776 (Tex.App.—Texarkana 2000, pet. granted). We, likewise, may not address this issue. See Tex.R. Civ. P. 166a(c); Tex.R.App. P. 33.1(a)(1)(A). The Statesman’s fifth point of error is overruled.

IV. Invasion of Privacy

In point of error two, the Statesman contends that the trial court erred in failing to grant its motion for summary judgment on all claims because Wootten essentially alleged invasion of privacy causes of action that fail as a matter of law. The Statesman insists that Wootten, “having no viable claim for invasion of privacy, rechar-acterized his claims ... under the theories of negligence, breach of contract, tortious interference with contract, and breach of fiduciary duty.” The Statesman explains that Wootten cannot prevail on an invasion of privacy claim for the publication of information about the dead because the right of privacy terminates upon the death of the person whose privacy is invaded. See Moore v. Charles B. Pierce Film Enters., Inc., 589 S.W.2d 489, 491 (Tex.Civ.App.— Texarkana 1979, writ ref'd n.r.e.). The Statesman also maintains that Wootten failed to satisfy the elements of an invasion of privacy claim that the Statesman violated Wootten’s own privacy. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473-74 (Tex.1995).

The Statesman asserts that Wootten is using artful pleading to circumvent the law of invasion of privacy to avoid the constitutional restraints imposed on those claims. See, e.g., Brueggemeyer v. Associated Press, 609 F.2d 825, 826 (5th Cir.1980) (holding that accurate reporting of newsworthy events does not fall within the tort of invasion of privacy); cf. KTRK Television, Inc. v. Fowkes, 981 S.W.2d 779, 790-91 (Tex.App.—Houston [1st Dist.] 1998, pet. denied) (“When a nonlibel claim is based on the same speech giving rise to a libel claim, a plaintiff must prove the falsity of the alleged libelous speech. To hold otherwise would permit litigants to circumvent constitutional defenses against the tort of libel by pleading torts that do not require falsity or actual malice.” (citations omitted)), overruled on other grounds by Turner v. KTRK Television, Inc., 38 S.W.3d 103, 116 (Tex.2000). The issue, however, is not whether Wootten has artfully pleaded a cause of action for invasion of privacy. See Bernard Johnson, 630 S.W.2d at 367. Rather, the issue is whether Wootten’s allegations, when taken as true, invoke a rule of substantive law that will afford him relief based on the wrong he attributes to the Statesman. See id. Because we have held that Wootten’s allegations state no viable cause of action against the Statesman, we need not address the Statesman’s second point of error.

CONCLUSION

We hold that Wootten does not have any viable cause of action against the Statesman for participation in Falcon’s alleged breach of fiduciary duty, intentional infliction of emotional distress, negligent infliction of emotional distress, or breach of contract, and we hold that the Statesman is entitled to summary judgment on these claims. Because Wootten did not properly plead a common-law negligence claim or amend his pleadings when he had the opportunity, we hold that the trial court correctly refused to address summary judgment on a claim not before it. We therefore reverse the trial court’s order denying the Statesman’s motion for summary judgment and render judgment that as to the Statesman, Wootten take nothing.

Notes

1

. The Statesman’s photographer acknowledged in his deposition that one of Falcon’s obligations is to preserve the dignity of the corpses in his care.

2

. Because of this holding, we leave for another day the Statesman’s argument that recognition of a Kinzbach cause of action against a member of the press as a joint tortfeasor for breach of a third party’s fiduciary duty while engaged in newsgathering or reporting activities, under any circumstances, would impose too onerous a burden on freedom of the press.

3

. We do not consider whether the Constitution would protect a publication that was extreme and outrageous.