Rel: 10/18/02 Johnson v Stewart
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2002-2003
_________________________
_________________________
Donald L. Johnson and Florence Radiology Associates, P.C.
v.
Janet Stewart and Donald Stewart
Appeal from Jefferson Circuit Court
WOODALL, Justice.
A jury found in favor of Donald Stewart ("Dr. Stewart") and his wife Janet Stewart on their invasion-of-privacy claims, awarding each nominal damages of $1.00 and punitive damages of $1 million against the defendants Donald L. Johnson and Florence Radiology Associates, P.C. (hereinafter referred to collectively as "Dr. Johnson"). Dr. Johnson filed a post-judgment motion seeking, alternatively, a judgment as a matter of law, a new trial, or a remittitur of the punitive-damages awards. The trial court denied the motion insofar as it sought a judgment as a matter of law or a new trial. However, the trial court ordered Dr. Stewart to accept a remittitur of the punitive damages from $1 million to $500,000, and ordered Janet Stewart to accept a remittitur of the punitive damages from $1 million to $350,000, or else it would order a new trial. The Stewarts accepted the remittiturs.
Dr. Johnson appeals, contending that he was entitled to a judgment as a matter of law on the Stewarts' invasion-of-privacy claims. We reverse and remand.
I.
Dr. Johnson argues that the trial court erred in denying his motion for a judgment as a matter of law ("JML") on the Stewarts' invasion-of-privacy claims. Well-established principles govern our review of a motion for a JML:
"[T]he Court uses the same standard the trial court used initially in granting or denying a JML. Palm Harbor Homes, Inc. v Crawford, 689 So. 2d 3 (Ala. 1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So. 2d 1350 (Ala. 1992). For actions filed after June 11, 1987, the nonmovant must present 'substantial evidence' in order to withstand a motion for a JML. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So. 2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Motion Industries, Inc. v. Pate, 678 So. 2d 724 (Ala. 1996). Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court's ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So. 2d 1126 (Ala. 1992)."
Delchamps, Inc. v. Bryant, 738 So. 2d 824, 830-31 (Ala. 1999). We must apply these principles in reviewing the trial court's ruling on Dr. Johnson's motion for a JML.
II.
Dr. Stewart and Dr. Johnson are radiologists, who became partners in 1991. In January 1995, Dr. Johnson hired Surveillance Technologies, Inc. ("STI"), to investigate Dr. Stewart after Dr. Johnson became concerned about Dr. Stewart's behavior.
The investigation continued for approximately two and one-half years. The Stewarts did not learn of STI's investigation until August 1997, when an employee of STI sold Dr. Stewart what purported to be a copy of STI's investigative file in exchange for a $10,000 loan. On October 28, 1997, the Stewarts sued Dr. Johnson, stating invasion-of-privacy claims, as well as other claims, against him.
The case was tried before a jury. Dr. Stewart's copy of what was purported to be STI's investigative file was not received into evidence. However, Charles Frederick, the owner of STI and one of its investigators, did testify concerning the scope and manner of the investigation. Dr. Johnson moved for a JML on the invasion-of-privacy claims, both at the close of the Stewarts' case and at the close of all the evidence, and the trial court denied the motions. As previously mentioned, the jury returned verdicts on the Stewarts' invasion-of-privacy claims, awarding nominal and punitive damages, but it awarded no compensatory damages to either plaintiff. Dr. Johnson appeals, contending that he was entitled to a JML on the invasion-of-privacy claims.
III.
The parties agree that the threshold issue on appeal is whether the Stewarts presented substantial evidence indicating that Dr. Johnson violated the wrongful-intrusion branch of the invasion-of-privacy tort. This Court has defined the scope of that tort:
"In Phillips v. Smalley Maintenance Services, Inc. 435 So. 2d 705 (Ala. 1983), this Court adopted the Restatement (Second) of Torts definition of the wrongful-intrusion branch of the invasion-of-privacy tort:
"'One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.'
"Restatement (Second) of Torts, § 652B (1977). Comment c to § 652B states in part: 'The defendant is subject to liability under the rule stated in this Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs.' The wrongful intrusion may be by physical intrusion into a place where the plaintiff has secluded himself, by discovering the plaintiff's private affairs through wiretapping or eavesdropping, or by some investigation into the plaintiff's private concerns, such as opening private mail or examining a private bank account. Restatement (Second) of Torts § 652B cmt. b; see Vernars v. Young, 539 F.2d 966 (3d Cir. 1976) (holding that invasion of privacy occurred when mail addressed to plaintiff was opened by defendant without plaintiff's consent); see generally, W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 117, at 854-55 (5th ed. 1984); 62 Am. Jur. 2d Privacy §§ 51-57 (1990). Further, if the means of gathering the information are excessively objectionable and improper, a wrongful intrusion may occur. See Hogin v. Cottingham, 533 So. 2d 525 (Ala. 1988) (wrongful intrusion occurs when there has been abrupt, offensive, and objectionable prying into information that is entitled to be private)."
Johnston v. Fuller, 706 So. 2d 700, 702 (Ala. 1999). "This Court [has been] unwilling 'to create a broad privacy action, with no metes and bounds, that would extend beyond [one's] dwelling, papers, and private records, creating unknown dangers to unsuspecting routine inquirers.'" Myrick v. Barron, 820 So. 2d 81, 87 (Ala. 2001), quoting Johnston v. Fuller, 706 So. 2d at 703.
"[A] wrongful intrusion may be by physical intrusion into a place where the plaintiff has secluded himself," including, of course, the plaintiff's home. Johnston v. Fuller, 706 So. 2d at 702. Here, the Stewarts allege that the investigation instigated by Dr. Johnson "invaded the privacy and emotional sanctity of the Stewarts by trespassing on their property." Stewarts' Brief, at 1. However, they do not cite any part of the record in support of that contention. Our independent review of the record reveals that Charles Frederick testified that "it was impossible to set up a surveillance on their residence."
The Stewarts also contend that the investigators "invaded [their] privacy and emotional sanctity ... by ... calling them on the telephone repeatedly using false pretenses." Stewarts' Brief, at 1. More particularly, they accuse the investigators of "calling them using false pretenses at all hours of the night and day." Stewarts' Brief, at 32. However, again, the Stewarts fail to cite any part of the record that supports their contention. Instead, the only citation to a part of the record dealing with telephone calls is a citation to Charles Frederick's testimony. When he was asked whether he ever telephoned the Stewart residence, he answered: "I don't recall. It's possible. Doing what's called a pretex[t] ... [j]ust to determine if they are at home." Obviously, Frederick's testimony does not provide substantial evidence of any wrongful intrusion.
Next, the Stewarts contend that the investigators "invaded [their] privacy and emotional sanctity ... by ... following them everywhere they went." Stewarts' Brief, at 1. In their words, "[t]hey were tailed and surveilled." Stewarts' Brief, at 41. However, once again, the Stewarts cite no part of the record that supports their contention that any surveillance was improperly intrusive upon their "solitude or seclusion" or upon their "private affairs or concerns." Indeed, their citations to the record take us only to testimony indicating that surveillance began at the entrance to the subdivision where they lived. However, generally, the observation of another person's activities, when that other person is exposed to the public view, is not actionable under the wrongful-intrusion branch of the invasion-of-privacy tort. See I.C.U. Investigations, Inc. v. Jones, 780 So. 2d 685 (Ala. 2000). It is true "that the 'wrongful intrusion' privacy violation can occur in a public place, when the matter intruded upon is of a sufficiently personal nature." Phillips v. Smalley Maint. Servs., Inc., 435 So. 2d 705, 711 (Ala. 1983). However, the Stewarts offered no evidence indicating that the investigation by STI intruded upon any such personal matter. (1)
The Stewarts argue that Dr. Johnson committed an actionable tort when he "provided private and personal information about [them] to a private investigator." Stewarts' Brief, at 8. Specifically, the Stewarts allege that "Johnson gave the investigators [their] names, addresses, telephone numbers, [S]ocial [S]ecurity numbers, vehicles and tag numbers, [and] copies of [their] checks." Stewarts' Brief, at 4. However, the Stewarts did not offer substantial evidence in support of those contentions.
Obviously, there can be "'no privacy in that which is already public.'" Abernathy v. Thornton, 263 Ala. 496, 498, 83 So. 2d 235, 237 (1955) (quoting Hepburn, Cases on Torts, p. 504). Therefore, public information, such as a person's name, address, and telephone number, or the make and model of the vehicle he drives and its license plate number, cannot form the basis for an invasion-of-privacy claim. While it can be argued that a person has a privacy interest in his or her credit-card account numbers, the Stewarts cite no parts of the record supporting their contention that Dr. Johnson gave the investigators any credit-card account number belonging to the Stewarts. In fact, Dr. Johnson denied giving any credit-card account number to STI, and Charles Frederick simply did not recall whether Dr. Johnson had given him any credit-card account number.
While the Stewarts allege that Dr. Johnson gave the investigator copies of their personal checks, Charles Frederick testified only that "[i]t seems like" he was given copies of their checks. That testimony is indicative of nothing more than a mere possibility, which does not constitute substantial evidence that copies of the Stewarts' personal checks were provided to him by Dr. Johnson. Also, we note that the Stewarts do not argue that the information printed on the checks is private.
Dr. Johnson admits that he provided the Stewarts' Social Security numbers to the investigator. As stated by the Stewarts, "Johnson obtained their [S]ocial [S]ecurity numbers somehow and did give them to the investigator." Stewarts' Brief, at 33 (emphasis added). However, for all that appears in the record, the Stewarts voluntarily furnished their Social Security numbers to Dr. Johnson, or voluntarily furnished the information to other persons, who then provided Dr. Johnson with the numbers. A wrongful-intrusion claim cannot be based upon information voluntarily given to the defendant by the plaintiffs or upon the defendant's receipt of information already known to others. See Myrick v. Barron, supra, and Johnston v. Fuller, supra.
Finally, the Stewarts contend that Dr. Johnson invaded their privacy when he had STI perform "asset checks [on them], includ[ing] private, personal banking information, stock information and property information." Stewarts' Brief, at 5. Specifically, they contend that "[i]t is totally undisputed that the investigators did procure and produce to Johnson the personal and private banking account information on Donald Stewart and Janet Stewart. This is the private information that is actionable." Stewarts' Brief, at 32. It is clear that "[a] wrongful intrusion may be by ... some investigation into the plaintiff's private concerns, such as ... examining a private bank account." Johnston v. Fuller, 706 So. 2d at 702. Therefore, we must determine whether the Stewarts offered substantial evidence of an examination of their "private, personal banking information, stock information [or] property information."
As previously discussed, STI's investigative reports were not received into evidence. The only testimony concerning the scope of the investigation into the Stewarts' assets was the testimony of Charles Frederick, who testified: "A basic asset check could just be property, vehicles, things like that. A full-blown asset check ... can involve everything, bank accounts, stocks, bonds, offshore accounts." Contrary to the Stewarts' allegations, Frederick never testified that he obtained any information concerning any stock or other property owned by the Stewarts. While he did admit that STI had obtained some information concerning the Stewarts' checking accounts, Frederick did not provide any description of that information or the manner in which it was obtained. It would be purely speculative to conclude that STI had examined any private bank account or that it otherwise had obtained any private financial information. For all that appears in the record, STI obtained, and provided to Dr. Johnson, only general information already known to others. Such information would not be protected by the limited scope of the wrongful-intrusion branch of the invasion-of-privacy tort. See Johnston v. Fuller, 706 So. 2d at 702-03.
IV.
For the foregoing reasons, we conclude that the Stewarts did not offer substantial evidence in support of their invasion-of-privacy claims against Dr. Johnson. Therefore, the trial court erred in denying Dr. Johnson's motion for a JML. The judgment of the trial court is reversed, and the case is remanded for the entry of an order consistent with this opinion.
REVERSED AND REMANDED.
Houston, See, Lyons, Brown, Harwood, and Stuart, JJ., concur.
Moore, C.J., and Johnstone, J., dissent.
JOHNSTONE, Justice (dissenting).
I respectfully dissent. In my opinion the record contains substantial evidence that Dr. Johnson invaded the Stewarts' privacy at least by wrongfully obtaining and disclosing their checks. While the evidence is not clear and convincing, it is sufficient to support the nominal damage award of one dollar.
Although Dr. Johnson denies providing the checks to the investigator, Dr. Johnson admits providing the investigator the rest of the information to start the investigation. In addition, the investigator testified:
"Q. Were you at any time given copies of checks, personal checks out of the checking accounts that belonged to Janet Stewart or Donald Stewart?
"A. It seems like it. I'm not sure.
"Q. Do you know -- same question. Do you know if you were given similar-type checks on M.B. or S.B.?
"A. It seems like it. I'd have to go back and look.
"Q. If you were given those checks who would have given those checks to you?
"A. It would have been Dr. Johnson."
Substantial evidence is defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assur. Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989) (citation omitted). This evidence meets this test.
The account number of the drawer of a check, the name of the payee, and the amount of the check are private information for knowledge by or disclosure to only the drawer, any co-owner of the account, the drawee, any holders of the check, and persons authorized by them to assist in the delivery and negotiation of the check -- certainly not for disclosure to people like the investigator in this case who are hostile to the drawer. Cf. Johnston v. Fuller, 706 So. 2d 700, 702 (Ala. 1999); Phillips v. Smalley Maint. Servs., Inc., 435 So. 2d 705 (Ala. 1983)(adopting Restatement (Second) of Torts § 652B (1977) defining and explaining invasion of privacy); and Comment b to Restatement § 652B (the wrongful invasion "may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents"). Dr. Johnson does not claim any status that would have authorized him to have obtained or to have possessed the Stewarts' checks or to have provided such checks to the investigator, and the law does not supply any presumption or inference of any such status.
1. "Even in a public place, however, there may be some matters about the plaintiff, such as his underwear or lack of it, that are not exhibited to the public gaze; and there may still be invasion of privacy when there is intrusion upon these matters." Restatement (Second) of Torts § 652B cmt. c (1977).