Van Norman v. Nations Credit

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-60649 _____________________

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* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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

-2- 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.

-3- 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.

-4- 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.

-5-