This is an action for abuse of process, invasion of privacy, and negligence. The trial judge granted the respondents’ motion for involuntary non-suit with prejudice. We affirm.
The instant case arose out of an earlier lawsuit between the appellant-Rycroft and the respondent-Tanguay. Rycroft and Tanguay were equal shareholders in a corporation when Tycroft sued for dissolution of the corporation. Tanguay retained the respondent-Gaddy as counsel and counter-claimed alleging that Rycroft had defrauded the corporation.
The Master issued his written report to the Circuit Court on June 29, 1979. Even though neither party excepted to the Master’s report, the action was not dismissed until Circuit Judge Eppes issued his order, dated September 6,1979, confirming and adopting the Master’s report.
Rycroft complied with the Master’s report by sending two certified checks to Tanguay. After these checks had been received, Gaddy had two subpoenae duces tecum issued by the Greenville County Clerk of Court, one dated July 23,1979, and the other August 1,1979. Both subpoenae directed G & S Bank to produce the records of Rycroft’s checking account. C & S complied with the subpoenae and turned the records over to Gaddy who gave them to Tanguay.
In February of 1980, Gaddy served Rycroft with notice of motion to reopen the judgment. The motion was granted by Special Circuit Judge Sparks who found that Rycroft had committed an extrinsic fraud upon the court. This order was later reversed on appeal.
See Rycroft v. Tanguay,
279 S. C. 76,
In deciding on a motion for a nonsuit, the trial judge must consider the evidence in the light most favorable to the party resisting the motion. If more than one reasonable inference can be drawn from the evidence, the judge must submit the case to the jury.
Dunsil v. Jones Chevrolet,
268 S. C. 291,
Rycroft next claims that the production of his bank records constituted an invasion of his right to privacy. This tort, recognized as actionable in South Carolina, has been defined as
The unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern, or the wrongful intrusion into one’s private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibilities. Meetze v. Associated Press, 230 S. C. 330,95 S. E. (2d) 606 (1956); Todd v. S. C. Farm Bureau Mut. Ins., 276 S. C. 284,278 S. E. (2d) 607 (1981).
As we read this definition, three different causes of action can arise under the tort of invasion of the right of privacy: (1) wrongful appropriation of personality; (2) publicizing of private affairs of no legitimate public concern; and (3) wrongful intrusion into private affairs. A necessary element of each different claim is damages. Under the facts of this case, the wrongful appropriation of personality is clearly not at issue.
With regard to C & S, there can be no wrongful intrusion as the bank already had Rycroft’s records. Rycroft is claiming that the bank had no right to reveal his private records to a member of the public. However, the subpoenae were proper on their face and the bank had no choice but to comply. Further, the subpoenae were issued to
With regard to Tanguay and Gaddy, Rycroft claims both wrongful intrusion and publicizing of private affairs. We will deal with the publicity charge first.
Rycroft claims that his bank records were obtained by Gaddy and given to Tanguay who then showed the records to a Mr. Charles Rollins. The testimony at the trial revealed that while Rollins saw the stack of checks and knew that they were Rycroft’s checks from C & S Bank, that was the extent of Rollins’ knowledge.
Under a cause of action for the “publicizing of one’s private affairs with which the public has no legitimate concern” (emphasis added), an essential element of
recovery is a showing of a
public dislosure
of private facts.
Beard v. Akzona, Inc.,
That leaves only the wrongful intrusion charge. When a plaintiff bases an action for invasion of privacy on “intrusion” alone, bringing forth no evidence of public disclosure, it is incumbent upon him to show a blatant and shocking disregard of his rights, and serious mental or phys
Here, Gaddy obtained the bank records in connection with pending litigation. His sole motives were to properly represent his client and to prevent the perpetration of a fraud upon the court. Gaddy accomplished his goals without the use of rudeness, coercion, or extortion. There was no fraud or deception practiced on Rycroft. The fact that the bank did not give notice of the subpoenae to Rycroft is a matter between him and the bank. Regardless, the circumstances fail to show a “blatant and shocking disregard” of Rycroft’s rights. This is especially true when Rycroft admitted at the trial that he would have been willing to allow Tanguay to have the records and that Tanguay had a record of every deposit they made in C & S. No wrongful intrusion cause of action has been stated against Tanguay and Gaddy.
Finally, Rycroft sets forth a claim based on abuse of process against all three respondents. The essential elements of abuse of process are: first, an ulterior purpose and second, a wilful act in the use of process not proper in the regular conduct of the proceeding. Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of process is required.
Huggins v. Winn-Dixie,
249 S. C. 206,
No cause of action for abuse of process lies against C & S as the bank caused no process to issue against Rycroft; rather, it merely responded to the subpoenae caused to be issued by Gaddy on behalf of Tanguay. Rycroft has also failed to make out a valid abuse of process claim against Gaddy and Tanguay. Lacking is the first and essential element of an ulterior purpose. Rycroft’s bank records were subpoenaed for an entirely legitimate purpose — to be used as evidence by Gaddy in the prosecution of his client’s action. The subpoenae were not used as a form of coercion to obtain a collateral advantage or as a form of extortion. There is no liability under this tort when the process has been carried to its authorized conclusion, even though with bad intentions.
Huggins, supra; Scott v. McCain, supra; see also Cisson v.
Accordingly, the judgment below is
Affirmed.