IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-CA-00791-SCT

RITA PLAXICO

v.

GLENN MICHAEL

DATE OF JUDGMENT: 06/25/96

TRIAL JUDGE: HON. HENRY LAFAYETTE LACKEY

COURT FROM WHICH

APPEALED:

TIPPAH COUNTY CIRCUIT COURT

ATTORNEY FOR

APPELLANT:

D. REID WAMBLE

ATTORNEY FOR APPELLEE: WILLIAM R. FORTIER

NATURE OF THE CASE: CIVIL - TORTS - OTHER THAN PERSONAL INJURY AND

PROPERTY DAMAGE

DISPOSITION: AFFIRMED - 3/31/1999

MOTION FOR REHEARING

FILED:

MANDATE ISSUED: 4/21/99

EN BANC.

SMITH, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. This is an appeal from a judgment of the Circuit Court of Tippah County, Mississippi, dismissing with

prejudice, Rita Plaxico's invasion of privacy claim which is based upon the sub-tort of intentional intrusion

upon seclusion or solitude.

¶2. Glenn Michael learned of a homosexual relationship between his former wife and Plaxico. He

subsequently filed for modification of child custody in November of 1993, against his former wife, to have

their minor daughter placed in his custody. He alleged in this modification of child custody case, Michael v.

Michael, that his former wife was engaged in a lesbian relationship with her roommate, Plaxico. During

discovery of the child custody case, semi-nude pictures that had been obtained by Michael were produced

by his attorney. These pictures show Plaxico in her bed nude from the waist up. Michael was subsequently

awarded custody of his minor daughter.

¶3. Plaxico filed suit in the Circuit Court of Tippah County against Michael for invasion of her privacy,

specifically alleging in her pleadings, the sub-tort of "intentional intrusion upon the solitude or seclusion of
another." The parties, by mutual agreement, agreed to a trial without a jury.

¶4. Circuit Judge Henry L. Lackey heard the case on May 14, 1996. Michael stated that he watched his

former wife and Plaxico engage in sexual conduct. It was at this time that Michael went to his truck to get a

camera. He returned to the window and took pictures in order to obtain proof of their lesbian relationship.

¶5. The trial court, after hearing all of the evidence, ruled on June 25, 1996, that Michael had a qualified

privilege when he obtained the evidence of the relationship between Plaxico and his former wife in order to

protect his child. The trial court then dismissed the complaint with prejudice and ordered that Plaxico pay

the costs of the proceeding, and that both parties were responsible for their own attorney's fees. From that

judgment, Plaxico brings this matter before this Court on appeal raising the following issues:

I. WHETHER MICHAEL COMMITTED AN INTENTIONAL INTRUSION UPON

SOLITUDE OR SECLUSION OF PLAXICO?

II. WHETHER PLAXICO IS ENTITLED TO DAMAGES AS A RESULT OF MICHAEL'S

ALLEGED INVASION OF PLAXICO'S PRIVACY?

III. WHETHER THE CIRCUIT COURT OF TIPPAH COUNTY, MISSISSIPPI

CORRECTLY DISMISSED PLAXICO'S COMPLAINT AGAINST MICHAEL FOR AN

ALLEGED INTRUSION UPON THE SECLUSION OR SOLITUDE OF PLAXICO?

STATEMENT OF THE FACTS

¶6. Glenn Michael and his wife were divorced. They had one female child who was about six (6) years old

at the time of trial. The Chancellor gave custody of the child to Michael's wife in the Divorce Decree.

Michael's former wife and child lived in a cabin that had been rented by Michael as the family home prior to

their divorce. Plaxico moved into the cabin with Michael's former wife and his child sometime after the

divorce.

¶7. Michael was later informed that his ex-wife was having a relationship with the Plaintiff, Rita Plaxico.

Michael wanted to modify the child custody based on the fact that his former wife and Plaxico were

romantically involved with each other.

¶8. On night in June, 1993, Michael slipped up to a window in the cabin through which witnessed Plaxico

and his former wife having sexual relations. He left to retrieve a camera from his vehicle. After doing so, he

returned and took three (3) photographs of Plaxico, who was sitting in bed naked. However, the bed

covers covered her from the waist down.

¶9. Michael had the photographs developed and delivered the pictures to his attorney. He then, on

November 16, 1993, filed for modification of child custody. Michael testified that he did not show the

photographs to anyone other than his lawyer. His lawyer produced the photographs to Michael's former

wife's attorney in response to discovery requests in the child custody matter pending between Michael and

his former wife in which the Chancellor granted Michael the custody of his child. Plaxico became aware of

the photographs through Michael's former wife's attorney, who represented both Plaxico and Mrs. Michael.

¶10. Plaxico subsequently filed suit for invasion of privacy. She claimed that Michael intentionally intruded

upon her seclusion and solitude, and she suffered damages as a result of this tort. She further testified and
acknowledged that she and Michael's former wife were lovers and had engaged in sexual relations.

Plaxico's complaint and action were dismissed by the Circuit Court of Tippah County, Mississippi, and

appealed to this Court.

DISCUSSION OF THE ISSUES

I. WHETHER MICHAEL COMMITTED AN INTENTIONAL INTRUSION UPON

SOLITUDE OR SECLUSION OF PLAXICO?

¶11. The present case was dismissed by the Circuit Court of Tippah County with prejudice. This Court has

held that such dismissals by the trial court are reviewed under an abuse of discretion standard. Pierce v.

Heritage Properties, Inc., 688 So. 2d 1385, 1388 (Miss. 1997). When the Court reviews such decisions

of the trial court, it should first ask whether the court below applied the correct legal standard. Burkett v.

Burkett, 537 So. 2d 443, 446 (Miss. 1989). "If so, we then consider whether the decision was one of

those several reasonable ones which could have been made." Id. The trial court's decision will be affirmed

unless there is a "'definite and firm conviction that the court below committed a clear error of judgment in the

conclusion it reached upon weighing of relevant factors.'" Cooper v. State Farm Fire & Cas. Co., 568

So. 2d 687, 692 (Miss. 1990).

¶12. In order for Plaxico to prevail in this action, she must prove all elements of the sub-tort to invasion of

privacy, intentional intrusion upon seclusion or solitude. In Candebat v. Flanagan, the we stated that

actions for the invasion of privacy as a tort have received universal recognition in the United States.

Candebat v. Flanagan, 487 So. 2d 207, 209 (Miss. 1986). In fact, every state except Rhode Island

provides either statutory or common law relief for it. Candebat, 487 So. 2d at 209 (citing Prosser &

Keeton, The Law of Torts, § 118 (5th Ed. 1984)). Mississippi gave explicit recognition to the tort of

invasion of privacy in Deaton v. Delta Democratic Publishing Co., 326 So. 2d 471, 473 (Miss. 1976).

The tort of invasion of privacy is comprised of four distinct and separate sub-torts which are as follows:

1. The intentional intrusion upon the solitude or seclusion of another;

2. The appropriation of another's identity for an unpermitted use;

3. The public disclosure of private facts; and

4. Holding another to the public eye in a false light.

Candebat, 487 So. 2d at 209. In the case at bar, it is the first of the sub-torts which is at issue, the

intentional intrusion upon the solitude or seclusion of another.

¶13. Candebat is our only case that deals specifically with the sub-tort of intentional intrusion upon the

solitude or seclusion of another. There we stated that to recover for an invasion of privacy, a plaintiff must

meet a heavy burden of showing a substantial interference with his seclusion of a kind that "'would be highly

offensive to the ordinary, reasonable man, as the result of conduct to which the reasonable man would

strongly object.'" Id. (quoting Restatement Second of Torts, § 652B, comt. d (1977)). Further, the plaintiff

must show some bad faith or utterly reckless prying to recover on an invasion of privacy cause of action.

487 So. 2d at 209 (citing Wilson v. Retail Credit Co., 325 F.Supp. 460, 467 (S.D. Miss. 1971), aff'd,

457 F.2d 1406 (5th Cir. 1972)). However, the general rule is that there is no requirement of publication or
communication to a third party in cases of intrusion upon a plaintiff's seclusion or solitude. Fowler v.

Southern Bell Tel. & Tel. Co., 343 F.2d 150, 156 (5th Cir. 1965).

¶14. In the present case, Plaxico did not prove each element of intentional intrusion upon solitude or

seclusion of another. Plaxico was in a state of solitude or seclusion in the privacy of her bedroom where she

had an expectation of privacy. However, we conclude that a reasonable person would not feel Michael's

interference with Plaxico's seclusion was a substantial one that would rise to the level of gross offensiveness

as required to prove the sub-tort of intentional intrusion upon seclusion or solitude.

¶15. No one would dispute that parents have a predominant and primary interest in the nurture and care of

their children. Ethredge v. Yawn, 605 So. 2d 761, 764 (Miss. 1992). In child custody matters the best

interest of the child is the polestar consideration. Mercier v. Mercier, 717 So. 2d 304, 306 (Miss. 1998).

Here, Michael became concerned about the welfare of his daughter, who was in the custody of his former

wife. Michael's former wife subleased a cabin from him, and invited Plaxico to be her roommate. His

concern was based on numerous rumors of an illicit lesbian sexual relationship between Plaxico and his

former wife. Michael decided that it was not in the best interests of his daughter to allow her to remain in the

custody of her mother, and he wanted to obtain custody of the child. It is of no consequence that the

mother was having an affair with another woman. She could have been carrying on an illicit affair with a man

in the home where the child was, and any father would feel that this too was inappropriate behavior to be

carried on in the presence of the child. A modification would still be desired by the parent.

¶16. In the present case, Michael did want to file for modification of child custody. However, he had no

proof that there actually was lesbian sexual relationship which could be adversely affecting his minor child.

In order to obtain such proof, he went to the cabin, peered through the window and took pictures of the

two women engaged in sexual conduct. Three pictures were actually developed which were of Plaxico in a

naked state from her waist up in her bed. Michael believed that he took these pictures for the sole purpose

to protect his minor child. Although these actions were done without Plaxico's consent, this conduct is not

highly offensive to the ordinary person which would cause the reasonable person to object. In fact, most

reasonable people would feel Michael's actions were justified in order to protect the welfare of his minor

child. Therefore, the elements necessary to establish the tort of intentional intrusion upon solitude or

seclusion are not present.

¶17. Plaxico has failed to establish that there was an invasion of her privacy-- the sub-tort of intentional

intrusion upon seclusion or solitude. Consequently, the remaining two issues concerning damages and

qualified privilege are moot and will not be addressed.

¶18. Accordingly, we affirm the judgment of the Tippah County Circuit Court.

¶19. AFFIRMED.

MILLS AND WALLER, JJ., CONCUR. PITTMAN, P.J., CONCURS IN RESULT ONLY.

BANKS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY PRATHER,

C.J., SULLIVAN, P.J., AND McRAE, J. McRAE, J., DISSENTS WITH SEPARATE

WRITTEN OPINION JOINED BY BANKS, J.
BANKS, JUSTICE, DISSENTING:

¶20. Upon the apparent theory that no reasonable person could believe that the ends do not justify the

means in this case the majority opinion improperly concludes that Michael's unreasonably intrusive conduct

would not be highly offensive to a reasonable person. I disagree both with the premise and the conclusion.

Accordingly, I respectfully dissent.

¶21. In my view, peeping into the bedroom window of another is a gross invasion of privacy which may

subject one to liability for intentional intrusion upon the solitude or seclusion of that other. See Candebat v.

Flanagan, 487 So. 2d 207, 209-10 (Miss. 1986); RESTATEMENT (SECOND) OF TORTS § 652B

cmt. b, illus. 2 (1977) (invasion of privacy would occur if private investigator, seeking evidence for use in a

lawsuit, looks into plaintiff's bedroom window with telescope for two weeks and takes intimate

photographs).

¶22. The trial court found refuge in what it found to be a qualified privilege to see to the best interest of a

child. Neither rumors concerning an ex-wife's lifestyle nor a parent's justifiable concern over the best of

interests of his child, however, gave Michael license to spy on a person's bedroom, take photographs of her

in a semi-nude state and have those photographs developed by third parties and delivered to his attorney

thereby exposing them to others. While it is not my view that the publication to others is necessary for tort

liability here, I make reference to it to demonstrate the highly offensive nature of the behavior here involved.

See RESTATEMENT (SECOND) OF TORTS § 652B cmt. b (1977) (the intrusion itself makes the

defendant subject to liability, even though there is no publication or other use of any kind of the photograph

or information outlined.)

¶23. In another context, we have observed that "the end does not justify the means....Our society is one of

law, not expediency. This message must be repeated at every opportunity..." Mississippi Bar v. Robb,

684 So. 2d 615, 623 (Miss. 1996). I regret that today's majority here does not follow these worthy ideals.

PRATHER, C.J., SULLIVAN, P.J., AND McRAE, J., JOIN THIS OPINION.

McRAE, JUSTICE, DISSENTING:

¶24. I disagree with the majority's decision to affirm the dismissal of Rita Plaxico's suit against Glenn

Michael for intentional intrusion upon the solitude and seclusion of another, a sub-tort of the tort of invasion

of privacy. While the majority did not reach the issue, it impliedly affirms the lower court's finding that

Michael had a qualified privilege to take the semi-nude photographs of Plaxico to obtain information helpful

to him in his custody battle with his former wife. Ms. Plaxico, the paramour of Michael's ex-wife, however,

was not a party to the custody proceedings. As the majority points out, it matters not whether Michael's

former wife was involved in a lesbian or a heterosexual relationship. Michaels was not at liberty to peek in

the women's bedroom window, an act that can only be characterized as voyeuristic. Nor was he at liberty

to take photographs of Plaxico and share them with his attorney. At best, only pictures of his former wife

could possibly be characterized as helpful to Michael's case. As to Plaxico, any privilege allowed Michael is

misplaced. Accordingly, I dissent.

BANKS, J., JOINS THIS OPINION.