Opinion
No. C-8529.
October 4, 1989.
Appeal from Dallas County, Fifth District.
In this action for fraud, breach of contract, breach of fiduciary duties, and alienation of affections, the trial court admitted evidence obtained by petitioner, R.W. Forsythe, by a wiretapping device which Forsythe hooked up to his residential telephone. He recorded several conversations between his wife, Barbara Forsythe, and respondent, Malcolm Turner. The court of appeals held that the tape recorded telephone conversations between Barbara Forsythe and Malcolm Turner constituted an illegal wiretap under 18 U.S.C. § 2515 and that admission of these tapes into evidence was reversible error. Accordingly, the court of appeals reversed and remanded to the trial court for a new trial. 765 S.W.2d 455.
The court of appeals declined to follow Simpson v. Simpson, 490 F.2d 803 (5th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974), which is factually analogous to the instant case. The court in Simpson held that § 2515 is "not sufficiently definite and specific to create a federal cause of action" for a former husband's use of a wiretapping device to intercept wife's conversations in their marital home. Id. at 810.
In denying the application for writ of error, we are not to be construed as approving or disapproving the holding of the court of appeals on the admissibility of the tape recorded telephone conversations.
The application for writ of error is denied.