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Hovanec v. Miller - Civil Action No. SA-17-CV-766-XR, 2019 U.S. Dist. LEXIS 121411 (W.D. Tex. July 22, 2019)


Summary judgment is proper when the evidence shows "that there is no genuine dispute as to any material fact and the movant is entitled to judgement as a matter of law."


Hovanec and Miller and their daughters attended a movie in the park event. During the event, Hovanec and Miller had a confrontation over the fact that Miller's daughter did not want to spend the night with Hovanec's daughter at Hovanec's house. Atfer this, Miller disabled all of her connections with Hovanec on all social media. Hovanec then received an email from "Alison Hovanec" from a fake email address that incorporated her name titled "Joel's so Called Divorce" that referred to her as "such as sucker." Hovanec's mother also received an email from that address entitled, "Your Daughter is dating a married man!" and making disparaging remarks about her, including that she was a loser who was in a "downward spiral" and was not competent or able "to keep a job for more than a few months." Hovanec was able to capture the IP address being used by the fake email. Suspecting it was Miller, Hovanec created a fake email as well and sent it to Miller with a link. Clinking the link would show the IP address Miller was using and true enough, the IP address was identical. After collecting data and evidence, Hovanec filed suit against Miller for violations of the Federal Wiretap Act, the Texas Criminal Wiretap Act, the Computer Fraud and Abuse Act ("CFAA"), civil conspiracy, intrusion on seclusion, and intentional infliction of emotional distress. Miller filed a motion for summary judgment. Miller raised three primary arguments in her motion for summary judgment: First, that she is entitled to summary judgment on all claims because there is no evidence of damages or loss for any claim. Second, she is entitled to summary judgment because Hovanec has failed to produce evidence that Miller had access to her iCloud account. And third, she is entitled to summary judgment because there is no evidence that Miller created or used the fake email account. In response, Hovanec submitted her own affidavit as evidence of damages and contended that she has provided sufficient evidence to raise a fact issue.


Should the court grant summary judgment?




The court denied Miller's motion for summary judgment. It held that Hovanec's own affidavit alone was sufficient to deny summary judgment. The court also noted that the motion for summary judgment based on an alleged lack of evidence that Miller was behind the alleged fake email and a lack of evidence of access to the iCloud account was denied because there was some evidence (the IP address and other information captured by statcounter) that Miller was the creator and user of the fake email account.

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