HOUSTON -- A Texas appeals court panel has reinstated claims against two defendants in a lawsuit by a woman who sued her ex-husband, his attorney and a forensic investigation firm in a case involving a nude picture on an iPad.
In 2013, Mark Broome filed a child-custody modification proceeding against his ex-wife, Vivian Robbins. Broome was represented by attorney Terisa Taylor.
Broome obtained an iPad that contained texts and emails from Robbins, including a nude photograph Robbins sent her boyfriend. Either Broome or Taylor provided the iPad to Pathway Forensics, which retrieved files from the computer. Taylor then disclosed contents from the iPad at the trial court in the child-custody proceeding, Robbins alleged.
A trial judge dismissed the lawsuit against Taylor, who claimed immunity as an attorney. It also dismissed the case against Pathway Forensics, which claimed that it was protected against lawsuits as an expert witness under judicial proceedings privilege.
Robbins appealed. She claimed that attorney immunity does not apply to alleged criminal activity, violations of Texas and federal wiretap statutes.
The Texas 14th Court of Appeals agreed.
A criminal violation of either statute would be "foreign to the duties of an attorney'’ and "thus precludes application of attorney-immunity,” the court ruled April 7. “We conclude the trial court erred in granting Taylor’s motion for summary judgment based on the affirmative defense of attorney-immunity.”
The appeals court also overruled the trial judge’s dismissal of Pathway, which claimed it was hired as an expert witness in a judicial proceeding and was acting under authority of a court order.
“At a minimum, there is a genuine issue of material fact as to whether Pathway, Broome and Taylor violated the state and federal laws on the illegal inception of (Robbins’) electronic communication,” the appeals court said. “ Hence, summary judgment was improper.”
The appeals court did, however, uphold the trial judge’s rulings dismissing Robbins' negligence, gross negligence and infliction of emotional distress pain claims, and her right to seek punitive damages against Pathway.
In a dissenting opinion, Chief Justice Kem Thompson Frost said Robbins’ arguments in her appeal “lacked merit” and “have not shown that the trial court erred” in granting Taylor’s summary-judgment motions by Taylor and Pathway.
“This court should affirm the trial court’s judgment,” Frost wrote.
Tolbert et al v. Taylor et al, Fourteenth Court of Appeals, 14-18-00001-CV