This post examines an opinion recently issued by the
Fourteenth Court of Appeals of Texas – Houston:
Patel v. Hussain, 2016 WL
270014 (2016). The Court of Appeals
Justice who wrote the court’s opinion begins by explaining that
This appeal follows a plaintiff's jury
verdict in a `revenge porn’ case. Specifically, appellee Nadia
Hussain sued appellant Akhil Patel, alleging that after the couple broke up,
Patel hounded her with a slew of offensive and threatening communications,
hacked or attempted to hack her accounts, and posted secretly recorded sexual videos
of Nadia on the Internet. The jury found in Nadia's favor on her claims for
intentional infliction of emotional distress (IIED), intrusion on seclusion,
public disclosure of private facts, and defamation.
The jury awarded her damages totaling
$500,000, including past and future mental anguish damages, past and future
reputation damages, and exemplary damages. The trial court signed a final
judgment for $500,000 in damages and a permanent injunction.
Patel v. Hussain,
supra. You can, if you are interested,
read more about the facts and legal issues in the case in the article you can
find here.
The Court of Appeals goes on to explain that
[o]n appeal, Patel does not challenge
the evidence supporting the liability allegations. Instead, in six issues,
Patel contends the trial court erred by (1) denying his motion for JNOV on the
defamation claim because the jury found the publication was substantially true;
(2) denying his motion for JNOV because the trial court's judgment violated the
one-satisfaction rule; (3) awarding damages attributable to Nadia's claim for
IIED because this `gap filler’ tort was unavailable in the context of this
case; (4) awarding mental anguish damages in the judgment because Nadia's
stipulation concerning her social media posts established that Nadia did not
have a substantial disruption to her daily routine; (5) awarding mental anguish
damages because the evidence is legally and factually insufficient; and (6)
awarding exemplary damages when the evidence is legally and factually
insufficient to support mental anguish damages.
We sustain Patel's first and third
issues and overrule the others. Thus, we modify the trial court's judgment to
remove the damages associated with the defamation and IIED claims and affirm
the judgment as modified, resulting in a judgment of $345,000.
Patel v. Hussain,
supra.
I am going to proceed in this post in a fashion that differs
in one respect from how I usually translate a court’s opinion into a blog
post: I usually go through the entire opinion,
explaining what the court did and why. I
cannot do that with this opinion, which I think can make a good post, because
the Court of Appeals quotes extensively from texts and emails exchanged between
Patel and Hussein. If I were to quote
all of them, the post would be much longer than my posts usually are.
So, instead, I am going to use the opinion to outline the
arguments in the case and the essential facts that provided the basis for
Hussain’s lawsuit. Patel v. Hussain,
supra. If you would like to read all
of the texts and emails quoted in the opinion, you can find the full opinion
here.
The Court of Appeals begins the initial part of its opinion,
in which it outlines the relevant facts and legal issues, by explaining that
Nadia and Patel began a relationship in
high school and had an `on-and-off’ dating relationship for about seven years.
Nadia is Muslim and Patel is Hindu, which caused difficulties during the
relationship. They broke up in late 2010. During the relationship, Nadia
emailed several pictures of herself to Patel that showed her topless and
wearing only underwear. Nadia asked Patel to delete the pictures after she sent
them. He didn't. Also during the relationship, Patel recorded videos of Skype
(video chat) conversations during which Nadia undressed herself and
masturbated. Nadia did not consent to being recorded.
Patel v. Hussain,
supra. In a footnote, the court says
“[t]he parties disputed whether Nadia was aware she was being recorded.” Patel v. Hussain, supra.
This excerpt from the next section of the court’s opinion
should give you an idea of how things stood between the two of them at the
time:
Patel continued to contact Nadia after they broke up
despite Nadia and her mother, Sakina, telling him to stop in December 2010. At
first, Nadia engaged Patel. Patel's father emailed Nadia in April 2011, asking
her to `Please send him a message telling him he has to move on with his life
and to leave you alone otherwise you will have to call the authorities for
st[al]king you.’ Patel sent Nadia text messages in July 2011 because he
wanted to talk with her. She did not respond to most of his text messages. The
trial court admitted screenshots of the text messages into evidence, including
the following from early July:
Patel: Retaliation ...... you think this is retaliation?
? ? ? ? ? ? ? Haha retaliation woulda been something totally diff nadia but,
THINK back you fuckin genius did I? ? ?
Patel: I'm going to give you until 6pm to come up with a
better response nadia.
Nadia: OR WHAT AKHIL
Patel: Hahha look how quick u respond when you FEEL like
ur gonna get hurt ... do you care about huring me hahahha NOPE.!
Patel: Or what ? ? ? ? Hahah nadia think about it like I
said 6pm to give a better response.
Patel: Do you hold back from anything when you talk to
me or the way you act with me NO, why do you EXPECT ME TO DO THE SAME NADIA? ?
? ? HUH WHY? ? ? ?
Patel: Times up!
Patel: I hope you are happy now!
Patel: You have never given me a chance ..... and I have
given you numerous, times up for you ..... like I said in the car rmr those
words.
Patel: [Link to a YouTube video]
Patel: Em going to give you until 630pm to come up with
a better response nadia.
Patel: It's privatized nadia.
Patel: What now u amt gonna respond or what? ? ?
Patel: You know what fuck it .......
Patel: If officially lost you right ....what do I have
to lose ....
Patel: I'm tired of being ur bitch all the time ....haha
all I wanted was to be fine ....this is gonna help you cause this is ur health,
thank me later.
Patel: [Link to a YouTube video]
Patel: That's the legit link....I gave u a chance and u
decided to treat me like a dog
Patel: And if that didn't work ....check ur email ....0
wait u prolly have all my emails blocked hahah even tho I barely email you
hahahahhahahahah
Patel: Hahahhahaah you don't have to be like this
anymore. Your done.
Patel: And we both know what's gonna happen now ......
right? ? ? ? ? ?
Patel: Family will be very ashamed .......
Patel: You could have prevented this, that's what's
FUCKING FUNNY. You didn't fuckin get what I asked for and u acted in an
inappropriate way.
Patel: Stop crying in ur room nadia you had to think at
one point you treating me like this was gonna back fire hahha and yet still ur
video is private you want me to send it to your mom? ? ? ? ? FUCKING ANSWER ME
NADIA?
Patel: Don't worry like I said only people with the link
can view it!! Hahah
Patel: [Link to a YouTube video]
Patel: [Link to a YouTube video]
Patel: That's the least of your worries
Patel: U need to learn how to respect people and stop
hanging up on people.
Patel: You still have a chance nadia just FYI.
Patel: Unlike you, regardless of how you treat me....I
still wanna give you a chance and not say anything to your mom
Patel: [Link to YouTube video]
Patel: Ya and those pics u sent me too gotta see if the
google techs can rwcover those too so you can post those too!! So than again
more guys! For you that's what you wanted right to go thru a bunch of guys!!
You warm up to them easily hahah but can't talk to a guy that uve known for 7
years ... and were in a relationship and wanted to marry and start a family
with ....again u said the above text that's why I'm say in this to you ....jus
hurts that u ignore.
Patel: YES! According to a guy I know from UT who works
at google, they can recover it ... it'll take a couple of days, but then I can
give it to you so whenever u go on ur date you can give it to him
Patel: Look how much fun I can have with your family ...
esp since I know all of them, and ur couz like me and think I'm good for you
[link to YouTube video]
Patel: You have until Saturday.
Patel v. Hussain, supra.
The opinion explains that the text messages continued a few weeks later:
The opinion explains that the text messages continued a few weeks later:
Patel: No nadia its done ...... I'm sick and tired of how you treat me.
Patel: I knew you would do this to me which is why I went and got my
laptop fixed ....my gut told me that once you know that my laptop was fucked up
and that I deleted those pics ... ud disrespect me.
Patel: Best buy fixed my laptop in fact and restored everything. Nadia.
It took you 5 days to respond to me asking if you needed space. Nadia I'm not a
dumbass, your mom told me you were busy so you might not have texted for that
reason. Nadia you prolly text and call people on the norm, but no not akhil for
what? ? ? ? You don't know nadia. I'm tired of you disrespecting me.
Patel: Stuff I say, yes nadia everyone says stuff out of frustration even
you. I just miss you and miss talking about random stuff and having fun! Ill
give you space
Nadia: I don't go to the extent of retrieving life threatening
information just to threaten.
Patel: I didn't.
Patel: I didn't even threaten you that's the funny thing.
Patel continued a few days later:
Patel: I'm fucking done. Treat me like shit. Continue it.
Patel: U don't tell ur mom shit on how u treat me, but ur mom thinks I'm
some horrible person.
Patel: Go watch ur video and know that I have it all 30 min of it
Patel: And now I'm gonna mess with you just like you messed with me, and
rmr this, your friends say a lot
Patel: And now I have found the website, xvideos.com. I
will send the link later tonight.
Patel: [Link to YouTube video]
Patel: Already on youtube ... and it has 2 views!
Patel: Congrats uve fucked ur own life up and best believe imma email ph
tomorrow with the email along with those other videos of you.
Patel: Hahahahhahahahahha you FUCKED UP NADIA BIG TIME.
Patel: You ignoring me like I just told your mom is the worst thing you
can do.
Patel: Aight imma see you on Sunday that's cool!
Patel: And I know where ph is that's cool! Call the cops I haven't done
anything
Patel: [email address for Nadia's grandfather]. don't worry I got you.
Patel: I haven't done anything! Hahhahah trust me keep messin with me
Patel: Hahha I'm with ronak and rajiv ....and they said u deleted them!?
? ?7
Patel: On facebook hahahhaa ur soo wack I jus showed them ur
video
Patel v. Hussain,
supra.
I am going to include one more excerpt from the
communications between the two:
Patel texted Nadia again over the course of several days in
late October 2011:
Patel: [....] I do have your nana n nani's number, you
really don't know how bad I just want to text them those pics and stuff, WHY
THE FUCK CANT YOU JUST REPLY SO WE CAN END THIS!!!!!? ? ! ? ! ? ! ? ! ?
Patel: YOU HAVE HURT ME SOO MUCH NADIA. DO I want to RUIN
YOUR REP!!!! yes i do very much so, prolly because im frustrated, but will i do
Patel: All I want is some kind of response, if I don't get
that at least, even a single “A”, imma act like you IMMATURE and send stuff to
spite/hurt you cause you love to hurt me soo much so I guess I will return the
favor, im tired of being hurt by you
Patel: thanks for nana n nanis number, they will get
involved now too since you cant MAN UP to your decisions, they get pic msgs
nadia
Patel: Go and hide behind ur phone, you will see me one day
either I will come to ph or at talhas wedding and don't make any faces to me
then cause ill get on the dj's comp and play ur video.
Patel: You tell your mom about the videos? ? What about nana
or uncle or co workers like Rachel? ? ? ?
Patel: Oh ya nadia I have something far more valuable of
yours than those stupid pics
Patel: I sent that to chris and amanda, I'm sorry it had to
come to this. Hope you don't get fired.
Patel: Ahh yes and your father, I have his contact info as
well nadia, I know you don't really care for him too much but still.
Patel: [....] I'm going to make sure each one of your family
members knows about those pics n vids and when I say family I mean nana nani
mom uncle bhabi dad
Patel: [ ....] wisen up, or learn a lesson the hard way. I
have nanas email and his cell phone. Along with nanis phone. I could jus mail
the pics to the house if that's what you want!?
Patel: Just sent you and your mom that pic
Patel: I'm glad you don't worry about your nana or nani
Patel: I'm going to call your work again until you realize
you cant treat people like this!
Patel texted Nadia again, during the middle of the night,
over the course of several days in January 2012:
Patel: Like I told you earlier and just now. I asked for
something simple. You are asking me to come to PH you know that ? ? ? ?
Patel: You fucked up and now, not me, you will pay the price
because I've been nice
Patel: Tomorrow your mom is going to find out what you did.
Patel: And so is your nana nani and uncle
Patel: I would say a lot to you ... but imma wait ....and
let your mom nana nani uncle and bhabi know what you have done.
Patel: You think you are sooo smart ... wait until tomorrow.
Confess to ur nana then nadia. Tired of ur shit
Patel: Your mom nana etc need to realize how rude of a
person you are.
Patel: Your action or lack thereof will cause/determine my
reaction.
Patel v. Hussain,
supra. In a footnote, the court
notes that, later, “Patel testified that `nana and nani’ were Nadia's
grandparents” and that “`bhabi’ is Nadia's aunt.” Patel v. Hussain, supra.
I am going to include one more excerpt from the
communications quoted in the opinion and, as I noted above, you can find the
full opinion by using the link supplied above:
In January and February 2012, Nadia
started receiving text messages from unknown and unverified numbers. Nadia
believed the texts were from Patel and that Patel had been discovering
information about her whereabouts, purchases, and activities based on texts
such as these:
Patel: Hurd u like bangin texmex guys!
Lmfao
Patel: juz cuz u got caught wit the
texmex
Patel: i c u! sittin near da door ill
come say hi in a bit.
Patel: stp rackin up shi on the credit
gurl! debt getting hi:=(
Patel: howz da new spot gurl!?
Patel: howz da new i4!?!?!?! ? gud
recep with vzn? Lmfao
In February 2012, Nadia began receiving
emails from her email service provider stating that she had been trying to
recover her account password, although she had not been doing so. The emails
came almost every other week. Nadia filed a police report on March 8, 2012, to
report Patel's harassing conduct and possible breach of computer security. She
reported that she received upwards of 20 to 30 text messages and phone calls
per day.
Nadia lived with her grandparents and
mother, Sakina, at the time. Sakina testified that Patel would prank call the
house multiple times per day at all hours, including 1:00 a.m. and 2:00 a.m. He
did this for several years. They would have to leave the phone off the hook at
night and block his calls. Nadia testified that she changed her phone number
multiple times, but Patel kept discovering it and contacting her. She put an
application on her phone that would only allow certain contacts to reach her,
but she believed Patel was impersonating her contacts, calling her, and hanging
up.
Police officers spoke with Patel in
March 2012 and told him to stop contacting Nadia. He didn't. Shortly after the
police spoke with him, he emailed Sakina:
`[ ... ] This week coming up its nadias
birthday. Since you and her think its funny that calling the cops on someone
for your own problems when they have nothing to do with it, will somehow solve
them, I will let you two go ahead and think like that. You seem to be a very
smart woman, so you should be able to anticipate what my gift to nadia will be
this year! You can relay the information to her as well that before
she laughs at the fact that she called the cops on an innocent person she may
want to remember what she has put out there. [ ... ] Similar to what both of
y'all did, getting my family and friends as well as me involved into your own
lifes problems, she should anticipate hers getting involved to, all thanks to
y'alls decision to try and ruin my life.’
Patel v. Hussain,
supra.
In the next section of the opinion, the
court explained that
[t]hen, Patel uploaded Nadia's videos
to the Internet. The trial court admitted print-outs from a
pornographic website showing Nadia's videos on the Internet with the title `Pakistani
Nadia Houston.’ The text messages continued from March 2012 through August
2012:
Patel: Your vid is up online. Congrats
to you and your family ....over 2000 ppl have viewed what you do in your bed.
Patel: You seem to be very popular
amongst the guys, they can't stop watching you! 5000 views with your name on
it!
Patel: Who knew your pictures an videos
would draw such a big audience? Not only did 5000 men and women watch you, 300
downloaded your videos!
Patel v. Hussain,
supra.
The Court of Appeals then took up Patel’s argument that “the
trial court erred by awarding damages to Nadia on her defamation claim because
the jury found that the published material was substantially true.” Patel
v. Hussain, supra. It went on to
point out that
[t]he affirmative defense of
substantial truth is a complete defense to defamation. Knox v. Taylor, 992
S.W.2d 40 Tex.App.--Houston 1999); see also Texas Civil Practice & Remedies Code Ann. § 73.005. A jury's finding of substantial
truth precludes liability for a defamation claim. See Turner v.
KTRK Television, Inc., 38 S.W.3d 103 (Supreme Court of Texas 2000).
And, in the absence of liability, the question of damages becomes immaterial. See Hancock
v. City of San Antonio, 800 S.W.2d 881 (Texas Court of Appeals San
Antonio 1991). The same rationale applies to a finding of actual malice and
exemplary damages. See Tex. Beef Cattle Co. v. Green, 921
S.W.2d 203 (Texas Supreme Court 1996) (actual malice finding and exemplary
damages rendered immaterial by jury's answers establishing an affirmative
defense; `the trial court should have disregarded the actual malice finding as
immaterial’).
Thus, the trial court erred by denying
Patel's motion for JNOV on this basis. The trial court should have disregarded
the jury's award of $50,000 in damages for the defamation claim. Patel's first
issue is sustained.
Patel v. Hussain,
supra.
The Court of Appeals then took up the third issue Patel
raised in his appeal:
Patel contends the trial court erred by
not granting his motion for JNOV on the IIED [intentional infliction of
emotional distress] claim because this `gap-filler’ tort is unavailable under
the facts of this case. In particular, Patel claims that his conduct invaded
Nadia's legally protected privacy interest under her claims for intrusion
on seclusion and
public disclosure of private facts. We agree.
Patel v. Hussain,
supra.
The court went on to explain that
IIED is a `gap-filler tort, judicially
created for the limited purpose of allowing recovery in those rare instances in
which a defendant intentionally inflicts severe emotional distress in a manner
so unusual that the victim has no other recognized theory of redress.’ Hoffman–La
Roche Inc. v. Zeltwanger, 144 S.W.3d 438 (Supreme Court of Texas 2004).
IIED `simply has no application when the actor intends to invade some other
legally protected interest, even if emotional distress results.’ Hoffman–La
Roche Inc. v. Zeltwanger, supra (quotations omitted). `Where the gravamen
of a plaintiff's complaint is really another tort, intentional infliction of
emotional distress should not be available.’ Hoffman–La Roche Inc. v.
Zeltwanger, supra.
Patel v. Hussain,
supra.
The Court of Appeals then outlined its analysis of Patel’s
“gap-filler tort” argument:
Nadia contends that IIED applied here
because Patel intended to invade a right that was not legally protected. She
argues, `Patel engaged in numerous extreme and outrageous acts that are not
actionable under any other theory of recovery.’ Nadia cites a single example:
when Patel sent Nadia a text message threatening to play Nadia's video during a
mutual friend's wedding. Specifically, Nadia contends the `wedding threat’ did
not lie within the umbra of Nadia's claim for intrusion on seclusion.
Nadia contends that Patel's threat
involved a “public place,” and she cites Floyd v. Park Cities People,
Inc., for the proposition that “it is well-established in Texas law
that if an intrusion involves a public place or public matters, the defendant
is not liable.” See Floyd v. Park, supra. We disagree with Nadia's broad interpretation
of Floyd. Floyd concerned more than mere `involvement’ with a
public place or concern. In Floyd, a newspaper published a
picture of the plaintiff's front yard, which included the plaintiff standing on
his front porch. Floyd v. Park, supra. The yard and plaintiff had
been in full view of the public at the time, and the topic of the plaintiff's
front yard `had become the subject of a controversy which was publicly debated
before the Highland Park Town Council.’ Floyd v. Park, supra. The
Dallas Court of Appeals affirmed summary judgment on the invasion of privacy
claim because there was no intrusion on the plaintiff's solitude, seclusion, or private affairs as a
matter of law. See Floyd v. Park, supra.
Patel v. Hussain,
supra.
The Court of
Appeals went on to explain that,
[h]ere, according to the charge, the
jury found that Patel `intentionally intrude[d] into Nadia Hussain's
solitude, seclusion, or
private affairs or concerns in a manner that would be highly offensive to a
reasonable person.’ At trial, Nadia presented the `wedding threat’ as one of
hundreds of offensive and threatening text messages Patel sent to her, along
with the phone calls and hacking attempts, to establish an intentional
intrusion on Nadia's solitude, seclusion,
or private affairs. Household
Credit Services, Inc. v. Driscol, supra (sufficient evidence
for invasion of privacy when the defendant made frequent offensive telephone
calls to the plaintiff). The wedding threat involved a “public place or public
matter” only in the tangential sense that Patel was threatening another theory
of invasion of privacy upon which Nadia successfully recovered at trial—public
disclosure of private facts. Unlike the picture in Floyd, the
secretly recorded video depicted Nadia in a private place engaged in private
conduct that was not publicly debated or a matter of public concern. A
privately communicated threat to reveal such private content at a wedding does
not involve a public place or public matter as in Floyd.
Nadia also relies on Durban v.
Guajardo, wherein the Dallas Court of Appeals held that a plaintiff
could recover under a theory of IIED and assault even though the two claims
`involve[d] the same acts by’ the defendant—the defendant physically attacked
the plaintiff. 79 S.W.3d 198 (Tex.App.—Dallas 2002). The court of appeals
reasoned that the plaintiff could maintain an action for IIED even though
emotional distress was `the essence’ of an assault and battery claim. Durban
v. Guajardo, supra. We decline to
follow Durban; its reasoning is inconsistent with Texas Supreme
Court's pronouncements in Hoffman–La Roche Inc. v. Zeltwanger, supra (citing Rice
v. Janovich, 742 P.2d 1230 (Supreme Court of Washington 1987) (trial
court erred to instruct the jury on IIED in addition to assault because a
plaintiff can recover emotional distress damages for an assault claim)).
From reviewing the entire record, we
conclude that the gravamen of Nadia's complaint was fully encompassed by her
invasion of privacy claims for intrusion on seclusion and public disclosure of private facts. Nadia
complained globally about Patel's frequent threatening and offensive
communications, hacking into her accounts, and uploading the secretly recorded
videos to the Internet. Neither on appeal nor at trial has Nadia identified
evidence that would enable recovery under a theory of IIED independent of her
other claims. . . .
Accordingly, IIED was unavailable as a
matter of law. The trial court erred by not granting Patel's motion for JNOV on
this ground and thereby incorporating the jury's award of damages for IIED in
the final judgment. Hoffman–La Roche Inc. v. Zeltwanger, supra (court
of appeals should render judgment for the appropriate amount of damages when
the judgment awards relief on an unavailable claim such as IIED).
Patel's third issue is sustained.
Patel v. Hussain,
supra.
Otherwise, the Court of Appeals affirmed the decision by the
trial judge:
We have sustained Patel's first and
third issues and concluded that the trial court erred by including in the
judgment damages associated with the defamation and IIED claims. Having
overruled the remainder of Patel's issues, we modify the trial court's judgment
to reduce the amount of damages from $500,000 to $345,000. See Hoffman–La
Roche Inc. v. Zeltwanger, supra (remanding to court of appeal for rendition of
the appropriate amount of damages).
The judgment is affirmed as modified.
Patel v. Hussain,
supra. As I noted at the beginning
of this post, the full opinion includes a number of excerpts from the social
media traffic between Patel and Hussain, all of which help put the litigation,
and this decision, in perspective.
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