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holding that plaintiff failed to state a claim under 4-21-701 because she alleged harassment on the basis of a disability, which is not enumerated in either 39-17-313 or 39-17-309
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Appeal No. M1999-01442-COA-R3-CV.
December 3, 1999.
Appeal from the Circuit Court of Rutherford County at Murfreesboro, Tennessee, the Honorable James L. Weatherford, Judge, Rutherford Circuit, No. 39762.
AFFIRMED AND REMANDEDLORI PARR, pro se
PAUL G. SUMMERS, Attorney General Reporter, MARY M. COLLIER, Assistant Attorney General, S. ELIZABETH MARTIN, Senior Counsel, Attorney for Appellee, Middle Tennessee State University, MICHAEL A. MYERS, Attorney for Appellee, Treyton Williams.
Lori Ann Parr, proceeding pro se, has appealed the trial court's dismissal of this invasion of privacy, breach of confidentiality, and civil rights intimidation via malicious harassment action that was brought against Middle Tennessee State University (MTSU), Treyton Williams (Williams) and other unnamed individuals. Based upon the following, we affirm the trial court's dismissal.
Throughout her pleadings, Parr alternatively states this claim as civil rights intimidation via malicious harassment or malicious harassment via civil rights intimidation.
Facts and Procedural History
This action, which was originally commenced by Lori Ann Parr (Parr) in March 1998, pertains to the alleged invasion of privacy, breach of confidentiality, and civil rights intimidation via malicious harassment claims asserted against MTSU, Williams, and unnamed defendants. Parr asserts her claim for relief in reliance upon (1) Tennessee Code Annotated sections 39-17-309 and 39-17-313 [repealed]; (2) Tennessee Code Annotated section 4-21-701, (3) United States Constitution and the Tennessee Constitution, and (4) Tennessee common law. Claims for monetary damages are asserted against all defendants. In addition, a claim for the award of Parr's master's degree is asserted against MTSU.
Williams and each unnamed defendant is alleged to be either an employee or an agent of MTSU.
Both Williams and MTSU filed separate Motions to Dismiss based upon sovereign immunity, failure to state a claim upon which relief can be granted, and application of the statute of limitations. Pursuant to Rule 12.02(6) of the Tennessee Rules of Civil Procedure, the trial court sustained both motions on the ground that Parr failed to state a claim upon which relief could be granted. Thereafter, Parr appealed. The facts alleged by Parr to support her claim for relief are set forth below.
In 1993, Parr enrolled as a graduate student in the Accounting and Computer Information Systems Department (the "Department") at MTSU. Parr was registered and documented as a disabled student at the MTSU Disability Office and was granted certain accommodations for her disability. These accommodations included longer periods to take exams and the option of answering test questions orally rather than in writing. In the fall of 1994, Parr was refused the accommodations by a professor in the Department, Dr. William Jeffrey Clark. Following the refusal of accommodation, Parr sent a letter of complaint to the President of MTSU and the campus Disability Office.
Parr suffers from a disability known as Conversion Disorder (a non-epileptic seizure disorder which causes major muscles of the body to contract and remain contracted up to an hour and a half, and may eventually cause the sufferer to pass out.) Conversion Disorder seizures may be triggered by excessive stress. Parr also has carpal and cubital tunnel syndromes that result in wrist and elbow pain if Parr is forced to write or type for protracted periods of time.
Although Parr claims that Clark subjected her to both verbal and physical abuse, Clark was not a named defendant in Parr's complaint.
After submission of the complaint letter, Parr alleges that she and her husband were repeatedly subjected to willful, malicious, and harassing acts by various members of the Department. For example, Parr was refused the use of equipment needed for a presentation even though she had previously reserved the equipment. Parr also claims that she was excluded from consideration for a research-assistant job despite her qualifications. Finally, Parr claims she was physically assaulted by Clark while taking an exam. Parr claims these acts and other similar acts were in retaliation for her letter of complaint regarding the lack of accommodations.
Parr's husband was also a graduate student in the Department at MTSU. Parr claims he was graded unfairly by Department faculty members and was singled out by Clark in the classroom.
As a result of the alleged acts of harassment, Parr complained to the MTSU administration, the campus Affirmative Action office, and other MTSU officials. On March 13, 1997, Parr sent a letter, clearly marked CONFIDENTIAL, to the Vice President of Academic Affairs, with a copy to the President of MTSU. The letter concerned some of Parr's complaints regarding her treatment by the Department. Parr later learned that the letter had been viewed by Williams, a fellow graduate student in the Department. Williams also worked as a part-time faculty member in the Department.
Parr contends that Williams was shown a copy of the letter by an unknown employee of MTSU.
Parr contends that Williams, motivated by and acting on behalf of MTSU, called Parr and verbally abused her with threats and intimidation aimed at her career and reputation. Parr claims that the purpose of Williams' call was to dissuade her from taking any legal action against MTSU for the alleged abuse she received in the Department. In response to Williams' phone call, Parr withdrew her plans to file for protection with the courts.
In the months following Williams' phone call, Parr unsuccessfully attempted to complete the remaining course she needed to acquire her master's degree. Parr contends that she has been deprived of her master's degree since the summer of 1996 because of Williams and MTSU.
In March 1998, Parr filed a complaint in the Rutherford County Circuit Court against MTSU, Williams, and other unnamed individuals. Parr's complaint alleged invasion of privacy, breach of confidentiality, and civil rights intimidation via malicious harassment resulting from her administrative complaints at MTSU. The trial court granted the Motions to Dismiss submitted by MTSU and Williams on the ground that Parr failed to state a claim for which relief could be granted. See TENN. R. CIV. P. 12.02(6).
All circuit judges in Rutherford County recused themselves from hearing this cause. An order was entered assigning Senior Judge James L. Weatherford to hear the cause by designation of the Tennessee Supreme Court.
On appeal, Parr argues that the trial court erred in granting Defendants' Motions to Dismiss. In addition, Defendant Williams asserts that both Parr's complaint and appeal are frivolous and asks that he be awarded attorney's fees.
Parr also attempts to assert an additional claim on appeal pursuant to 24 U.S.C. § 1983. This claim will not be considered because arguments not asserted at trial are deemed waived on appeal. Devorak v. Patterson, 907 S.W.2d 815, 818 (Tenn. Ct. App. 1995).
Analysis
Before reviewing the trial court's grant of the Defendants' Motions to Dismiss, we find it appropriate to note that Defendants alleged three separate grounds for dismissal. These grounds were sovereign immunity, application of the statute of limitations, and failure to state a claim upon which relief can be granted. The trial court addressed only Parr's failure to state a claim upon which relief can be granted. As a result, our review is limited to this issue.
Under Rule 12.02(6) of the Tennessee Rule of Civil Procedure, a motion to dismiss for failure to state a claim upon which relief can be granted tests only the sufficiency of the complaint, not the strength of plaintiff's proof. Merriman v. Smith, 599 S.W.2d 548, 560 (Tenn.Ct.App. 1979). The basis for the motion is that the allegations contained in the complaint, considered alone and taken as true, are insufficient to state a claim as a matter of law. Shipley v. Knoxville Journal Corp., 670 S.W.2d 222, 223 (Tenn.Ct.App. 1984). The motion to dismiss should be denied unless it appears that the plaintiff can prove no set of facts in support of her claim that would entitle her to relief. Fuerst v. Methodist Hosp. South, 566 S.W.2d 847, 848 (Tenn. 1978).
I. Invasion of Privacy
Parr asserts invasion of privacy claims against both Defendant MTSU and Defendant Williams. Parr bases these claims on the Constitution of the United States, the Tennessee Constitution, and Tennessee case law. Parr's constitutional claims are without merit because the constitutional right to privacy only protects against governmental intrusions into a citizen's private life.See Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992), cert. denied 113 S.Ct. 1259 (1993); Olmstead v. United States, 277 U.S. 438, 478 (1928). However, Tennessee courts do recognize a cause of action for invasion of one's privacy by another citizen. Martin v. Senators, Inc., 418 S.W.2d 660, 662 (Tenn. 1967). Parr's complaint failed to specify what form of invasion of privacy she alleges but she appears to be relying on public disclosure of private facts.
In order to prevail on a claim for public disclosure of private facts, plaintiff must show that another person gave publicity to a matter concerning plaintiff's private life. See Beard v. Akzona, Inc., 517 F.Supp. 128, 132 (E.D. Tenn. 1981). The general standard for public disclosure requires that the disclosure be made to more than one person. See Beard at 132. Disclosure to a single individual or to a small group of people, absent breach of contract, trust, or other confidential relationship, will not give rise to liability. In addition, plaintiff must show that the matter disclosed is both highly offensive to a reasonable person and not of legitimate concern to the public.
Parr's claim against MTSU fails to allege facts that support a finding for invasion of privacy by public disclosure of private facts. Parr merely contends that an unknown employee of MTSU showed Parr's letter of March 13, 1997, to Williams. Disclosure to an individual does not meet the general standard we restated inRobinson, and Parr has failed to allege facts indicating a breach of trust, breach of contract, or confidential relationship between herself and the unknown employee of MTSU. In addition, even if Parr can meet the general disclosure standard, the content of the letter did not contain private matters that would be highly offensive to a reasonable person or not of legitimate concern to the public. Parr herself contends that her complaints as specified in the letter were already widely known both within the Department at MTSU and among the general graduate student population.
Parr fails to state an actionable claim for public disclosure of private facts against Defendant Williams. Parr alleges that Williams was shown the letter, not that Williams himself made any disclosures. There is no allegation that Williams revealed any private information to a third party, only that Williams revealed the information to Parr herself. Parr fails to allege any conduct by Williams that would constitute invasion of privacy by public disclosure of private facts. For these reasons, Williams cannot be liable.
II. Breach of Confidentiality
Parr also asserts claims for breach of confidentiality against MTSU and Williams. Parr asserts these claims based on Tennessee Code Annotated § 10-7-504 which deals with records of students in public educational institutions. Specifically, this section requires that "[i]nformation in such records . . . shall not be made available to unauthorized personnel of the institution or to the public." Tenn. Code Ann. § 10-7-504 (1996).
The records of students in public educational institutions shall be treated as confidential. Information in such records relating to academic performance, financial status of a student or the student's parent or guardian, medical or psychological treatment or testing shall not be made available to unauthorized personnel of the institution or to the public or any agency, except those agencies authorized by the educational institution to conduct specific research or otherwise authorized by the governing board of the institution, without the consent of the student involved or the parent or guardian of a minor student attending any institution of elementary of secondary education, except as otherwise provided by law or regulation pursuant thereto and except in consequence of due legal process or in cases when the safety of persons or property is involved . . . Tenn. Code Ann. § 10-7-504(4) (1996) (emphasis added).
Parr alleges that because her letter of March 17, 1997, was marked CONFIDENTIAL, it should be considered a record pursuant to this section and that as such it should not have been revealed to Williams. We are unpersuaded that the letter qualifies as a student record under this section. Even if the letter is considered a student record, Parr does not specifically allege who showed Williams the letter, only that an "unnamed employee" was responsible. Parr does not allege a confidential relationship existed between herself and the unnamed employee. No further facts implicating MTSU for breach of confidentiality are presented. Accordingly, Parr's allegations do not present a viable claim for breach of confidentiality against MTSU.
Parr's breach of confidentiality claim against Williams is not actionable. Parr fails to allege any duty of confidentiality existed between herself and Williams. In addition, none of Parr's allegations against Williams implicate a breach as defined under Tenn. Code Ann. § 10-7-504. Williams is not accused of sharing any confidential information with unauthorized personnel or the general public. Therefore, Parr cannot prevail against Williams on her breach of confidentiality claim.
III. Civil Rights Intimidation via Malicious Harassment
Parr asserts a claim for civil rights intimidation via malicious harassment against MTSU and Williams. Parr bases this claim on Tenn. Code Ann. § 4-21-701, which creates a civil cause of action for malicious harassment. Because of the nature of this claim, it is unnecessary to evaluate MTSU and Williams separately. Therefore, the following analysis applies to both Defendants.
Tenn. Code Ann. § 4-21-701(1996) provides:
(a) There is hereby created a civil cause of action for malicious harassment.
(b) A person may be liable to the victim of malicious harassment for both special and general damages, including, but not limited to, damages for emotional distress, reasonable attorney's fees and costs, and punitive damages.
In order to evaluate Parr's claim, we must consider the history of this code section. When first enacted in 1990, section 4-21-701 referenced Tenn. Code Ann. § 39-17-313 [repealed], which provided for a criminal cause of action for malicious harassment. In 1991, this reference was changed to another criminal statute, Tenn. Code Ann. § 39-17-309. In 1992, the reference returned to Tenn. Code Ann. § 39-17-313, even though that section had been repealed in 1990. A 1996 amendment to § 4-41-701 deleted the reference to the criminal statutes. This amendment did not change the elements of the civil cause of action for malicious harassment, but noted that a criminal cause of action for malicious harassment in no longer available in addition to the civil action.
The pertinent parts of Tenn. Code Ann. § 39-17-313(a) [repealed] provided: "The General Assembly finds and declares that it is the right of every person regardless of race, color, ancestry, religion or national origin, to be secure and protected from fear, intimidation, harassment, and physical harm caused by the activities of groups and individuals . . . (emphasis added). Tenn. Code Ann. § 39-17-313(b) provides the elements of a malicious harassment claim.
Tenn. Code Ann. § 39-17-309(a) provides: "The General Assembly finds and declares that it is the right of every person regardless of race, color, ancestry, religion or national origin, to be secure and protected from fear, intimidation, harassment and bodily injury caused by the activities of groups and individuals . . ." (emphasis added.) Tenn. Code Ann. § 39-17-309(b) provides the elements for a civil rights intimidation claim.
As a result of the multiple amendments to Tenn. Code Ann. § 4-21-701, there may be "a question as to what section of the Tennessee criminal code provides the underlying framework for a civil cause of action for malicious harassment." Young v. State Farm Mutual Auto Ins., 868 F.Supp. 937, 942 (W.D. Tenn. 1994) (dismissing malicious harassment claim for failure to state a claim under either criminal code provision referenced by Tenn. Code Ann. § 4-21-701). Similarly, in this case, Parr has failed to state a claim under either Tenn. Code Ann. § 39-17-313 [repealed] or Tenn. Code Ann. § 39-17-309.
Both Tenn. Code Ann. § 39-17-313 [repealed] and Tenn. Code Ann. § 39-17-309 share common language. This language makes the statutes applicable to harassment based on a person's "race, color, religion, ancestry, or national origin." See Tenn. Code Ann. § 39-17-313(a) [repealed]; Tenn. Code Ann. § 39-17-309(a). Parr contends that she was harrassed on the basis of her disability, the accommodation request regarding this disability, and the contents of her letter of March 17, 1997. Parr fails to make any allegations that she was knowingly harassed or intimidated based on her "race, color, religion, ancestry, or national origin." Accordingly, Parr cannot prevail on her claim for civil rights intimidation via malicious harassment against either Defendant.
IV. Frivolous Appeal
When an appeal has no basis in law or fact it is considered frivolous. See Industrial Dev. Bd. of City of Tullahoma v. Hancock, 901 S.W.2d 382, 385 (Tenn.Ct.App. 1995). Accordingly, Appellees "should not have to bear the expense and vexation" of a frivolous appeal. Davis v. Gulf Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977); see also Tenn. Code Ann. § 27-1-222.
Tenn. Code Ann. § 27-1-122 provides: "When it appears to any reviewing court that the appeal from any court of record was frivolous or taken solely for delay, the court may, either upon motion of a party or its own motion, award just damages against the appellant, which may include but need not be limited to, costs, interest on the judgment, and expenses incurred by the appellee as a result of the appeal."
Under the standard above, Defendant Williams alleges that Parr's appeal is frivolous and devoid of legal merit. Accordingly, Williams requests that we remand this case to the trial court with all costs taxed to Parr. In addition, Williams requests that the trial court determine and fix Williams' expenses, including attorney fees, and that the same be awarded to Williams. Since we agree that Parr's appeal is frivolous, we hereby grant Williams' requests.
Conclusion
Based upon the foregoing, the trial court's dismissal of Parr's action is hereby affirmed. Costs of this appeal are taxed to Parr, for which execution may issue if necessary. This case is remanded to the trial court for a determination of Defendant Williams' expenses, including attorney fees, incurred as a result of this appeal.
___________________________ HIGHERS, J.
CONCUR:
____________________________ CRAWFORD, P.J., W.S.
_____________________________ LILLARD, J.