Van Norman v. Nations Credit ( 1997 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-60649
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DARLENE M. VAN NORMAN;
DONALD L. VAN NORMAN;
MELBA McCLAIN,
Plaintiffs-Appellants,
versus
NATIONS CREDIT, A Foreign
Corporation,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Mississippi
USDC No. 3:95-CV-699-WS
_________________________________________________________________
April 11, 1997
Before KING, JOLLY, and DENNIS, Circuit Judges.
PER CURIAM:*
Donald and Darlene Van Norman obtained a loan from C & S
Family Credit, Inc. in 1990. Sometime later, C & S Family Credit,
Inc. was merged into NationsCredit, which then became the holder of
the promissory note evidencing the Van Norman loan. The Van
Normans defaulted on the loan, and NationsCredit began collection
efforts. In 1995, the Van Normans, along with Mrs. Van Norman’s
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
mother, Melba McClain, filed a complaint in state court alleging
that the collection efforts of NationsCredit--consisting solely of
telephone calls to the Van Normans’ home, to Mrs. Van Norman at her
place of employment, and to Mrs. McClain’s home--constituted
intentional infliction of emotional distress, defamation and
invasion of privacy. The complaint also sought a declaratory
judgment that the finance charges under the note were excessive
under Mississippi law. NationsCredit removed the action to the
District Court for the Southern District of Mississippi and
thereafter sought summary judgment, which the district judge
granted. The Van Normans and Mrs. McClain appeal.
On appeal, the Van Normans and Mrs. McClain only pursue their
claims of intentional infliction of emotional distress and invasion
of privacy. The other claims raised in, and dismissed by the
district court therefore are deemed abandoned. See Gann v.
Fruehauf Corp., 52 F.3d 1320, 1328 (5th Cir. 1995).
We review the district court’s grant of summary judgment de
novo and affirm only if the record, when viewed in the light most
favorable to the non-moving party, is devoid of evidence that could
lead a rational trier of fact to find for the non-movant. See
Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
The complaint alleged that the telephone calls to Mrs. McClain
constituted an invasion of her right to privacy. Specifically, the
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plaintiffs sought to recover because the “persistent and
unwarranted telephone collection attempts by agents of the
Defendant directed to Plaintiff, Melba McClain, are an invasion of
the Plaintiff’s right of privacy.” The record demonstrates that,
on several occasions, an employee of NationsCredit called Mrs.
McClain at her residence and sought to speak with Mrs. Van Norman.
These calls are said to have occurred two to three times weekly for
an uncertain period of time.1 It is undisputed that the employee
never discussed the past due loan with Mrs. McClain and never
sought to obtain payment of the loan from Mrs. McClain--who was not
a party to the loan--but instead, the NationsCredit employee only
requested that Mrs. McClain have Mrs. Van Norman return her call.
Mississippi law recognizes a cause of action for invasion of
privacy, including an action for “[t]he intentional intrusion upon
the solitude or seclusion of another.” Deaton v. Delta Democrat
Pub. Co., 326 So. 2d 471, 473 (Miss. 1976). To state a claim for
this sub-category of invasion of privacy, however, a plaintiff must
show a substantial interference with her seclusion “that would be
highly offensive to the ordinary reasonable man, as the result of
conduct to which the reasonable man would strongly object.”
1
The testimony regarding the length of time varies from five
months to one year.
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Candebat v. Flanagan, 487 So. 2d 207, 209 (Miss. 1986) (quoting
Restatement (Second) of Torts, § 652(b), cmt. D (1977)).
We find no evidence in the record to support a finding that
the phone calls to Mrs. McClain reached such a level. Mrs. McClain
testified that NationsCredit never requested that she pay the debt
and, in fact, never identified the purpose of the phone calls.2
Despite the plaintiff’s contentions that Mrs. McClain was in poor
health and suffered mental and physical distress as the result of
the calls, the standard to be considered is whether a reasonable
person would find the actions “highly offensive.” The evidence
does not demonstrate that the collection efforts of NationsCredit
could constitute actions “highly offensive” to a reasonable person.
The plaintiffs also alleged intentional infliction of
emotional distress based upon the telephone calls. Although, in
the complaint all three plaintiffs appear to seek recovery under
this theory, on appeal only the claim of Mrs. McClain is mentioned;
therefore, this claim of the Van Normans is forfeited. See Gann,
52 F.3d at 1328. The facts set out above also form the basis of
this claim. In order to state a claim for intentional infliction
of emotional distress, a plaintiff must present evidence of conduct
that was “so outrageous in character, and so extreme in degree, as
2
Mrs. McClain’s phone number was apparently listed on the loan
application as the Van Normans’ nearest relative.
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to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.”
White v. Walker, 950 F.2d 972, 978 (5th Cir. 1991). For the
reasons stated above, we find no evidence that would allow a jury
to find that NationsCredit’s phone calls to Mrs. McClain were
“extreme and outrageous.” See Burroughs v. FFP Operating Partners,
L.P., 28 F.3d 543, 546 (5th Cir. 1994).
The judgment of the district court is therefore
A F F I R M E D.
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