Benedict v. State Farm Bank

• Decision Date: 06 April 2011
• Docket Number: No. A10A2289.,A10A2289.
• Citation: 11 FCDR 1008,309 Ga.App. 133,709 S.E.2d 314
• Parties: BENEDICTv.STATE FARM BANK, FSB.
• Court: Georgia Court of Appeals

309 Ga.App. 133

709 S.E.2d 314

11 FCDR 1008

BENEDICT

v.STATE FARM BANK, FSB.

No. A10A2289.

Court of Appeals of Georgia.

March 22, 2011.Reconsideration Denied April 6, 2011.

C.M. Benedict, pro se.Bryan, Cave, Powell & Goldstein, Adwoa Ghartey–Tagoe Seymour, Atlanta, Lewis, Brisbois, Bisgaard & Smith, John Christopher Patton, for appellee.BLACKWELL, Judge.

C.M. Benedict sued State Farm Bank, FSB, alleging in his complaint that State Farm representatives placed more than a hundred harassing calls to his telephone number and asserting that this conduct amounts to a tort. State Farm moved to dismiss the complaint pursuant to OCGA § 9–11–12(b)(6) because it failed, State Farm said, to state a claim upon which relief can be granted. State Farm also counterclaimed for the amount of an overdue credit card debt that Benedict owed to State Farm, as well as its attorney fees and costs of litigation, and State Farm moved to compel Benedict to arbitrate the counterclaim. The trial court granted both the motion to dismiss and the motion to compel arbitration, and after an arbitrator rendered an award in favor of State Farm on its counterclaim, the trial court confirmed the arbitration award and entered final judgment against Benedict. Benedict now appeals from this final judgment, and seeing no error, we affirm.

1. Benedict contends that the trial court erred when it dismissed his complaint against State Farm. We review de novo the dismissal of a complaint for failure to state a claim. Southstar Energy Svcs. v. Ellison, 286 Ga. 709, 710(1), 691 S.E.2d 203 (2010). At a minimum, a complaint must contain “[a] short and plain statement of the claims showing that the pleader is entitled to relief,” OCGA § 9–11–8(a)(2)(A), and this short and plain statement must include enough detail to afford the defendant fair notice of the nature of the claim and a fair opportunity to frame a responsive pleading. See Dillingham v. Doctors Clinic, 236 Ga. 302, 303, 223 S.E.2d 625 (1976); see also Patrick v. Verizon Directories Corp., 284 Ga.App. 123, 124, 643 S.E.2d 251 (2007). If a complaint gives the defendant fair notice of the nature of the claim, it should be dismissed for failure to state a claim only if, as our Supreme Court has explained, its allegations “disclose with certainty” that no set of facts consistent with the allegations could be proved that would entitle the plaintiff to the relief he seeks. See id. Put another way, “[i]f, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.” Bourn v. Herring, 225 Ga. 67, 70(3), 166 S.E.2d 89 (1969). In assessing the sufficiency of the complaint, we view its allegations of fact in the light most favorable to the plaintiff. See Southstar, 286 Ga. at 710(1), 691 S.E.2d 203.

So viewed, Benedict alleges that State Farm issued a credit card to him sometime in 2003 and that he used the credit card until July 2006, when he learned that State Farm intended to increase the rate of interest. Benedict failed to make a payment that was due to State Farm on July 20, 2006. On August 13, a representative of State Farm telephoned Benedict about the past due payment, and Benedict told this representative that he planned to pay off the outstanding balance of the credit card account in September. On August 20, a second State Farm representative telephoned Benedict, who again said that he planned to pay off the outstanding balance soon. Benedict also told this representative not to call him again. According to Benedict, the representative responded that State Farm would not honor his request and would, in fact, telephone him as often as it liked.

Benedict claims that, between August 20 and September 6, State Farm representatives telephoned him from a “blocked number” on 168 occasions. Benedict says that these representatives “hung up the telephone” without speaking whenever he answered and did not leave any message whenever his answering service picked up the calls. Benedict does not say how many calls he answered, how many were picked up by his answering service, and how many went unanswered, and he does not allege the times at which the calls were placed. Benedict alleges that, as a result of these calls, he suffered $60,000 in “actual damages,” but he does not say how exactly the making of these calls injured him.¹

On State Farm's motion, the trial court concluded that these allegations fail to state a claim upon which relief can be granted and dismissed the complaint pursuant to OCGA § 9–11–12(b)(6). On appeal, Benedict contends that his allegations are sufficient to state a claim for invasion of privacy or, in the alternative, for intentional infliction of emotional distress.² We disagree.

(a) We first examine whether Benedict has stated a claim for invasion of privacy upon which relief can be granted. More than 100 years ago, our Supreme Court recognized a private right of action for an invasion of privacy. See Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (1905). Since then, the Supreme Court and this Court have identified four kinds of invasion of privacy for which a right of action exists, and among these is an intrusion upon the seclusion or solitude of a plaintiff or into his private affairs. See, e.g., Yarbray v. Southern Bell Tel., etc. Co., 261 Ga. 703, 704–705(1), 409 S.E.2d 835 (1991); Udoinyion v. Re/Max of Atlanta, 289 Ga.App. 580, 583, 657 S.E.2d 644 (2008); Anderson v. Mergenhagen, 283 Ga.App. 546, 549(2), 642 S.E.2d 105 (2007); Johnson v. Allen, 272 Ga.App. 861, 863(1), 613 S.E.2d 657 (2005); Everett v. Goodloe, 268 Ga.App. 536, 544(2)(b), 602 S.E.2d 284 (2004); Assn. Svcs. v. Smith, 249 Ga.App. 629, 632(2), 549 S.E.2d 454 (2001); Johns v. Ridley, 245 Ga.App. 710, 712(2), 537 S.E.2d 746 (2000), reversed on other grounds, Ridley v. Johns, 274 Ga. 241, 552 S.E.2d 853 (2001); Davis v. Emmis Publishing Corp., 244 Ga.App. 795, 797(2), 536 S.E.2d 809 (2000); Troncalli v. Jones, 237 Ga.App. 10, 13(2), 514 S.E.2d 478 (1999); Jarrett v. Butts, 190 Ga.App. 703, 704(2), 379 S.E.2d 583 (1989); Cabaniss v. Hipsley, 114 Ga.App. 367, 370, 151 S.E.2d 496 (1966). To the extent that Benedict states any claim that is cognizable as an invasion of privacy, it is a claim for intrusion.³ We think, however, that the conduct Benedict attributes to State Farm in this case is not actionable as an intrusion, and for this reason, he fails to state a claim upon which relief can be granted.

The Supreme Court has instructed that conduct actionable as an intrusion “involves a prying or intrusion, which would be offensive or objectionable to a reasonable person, into a person's private concerns,” Yarbray, 261 Ga. at 705(1), 409 S.E.2d 835, but a more precise definition of such a prying or intrusion remains somewhat elusive. For several years, our Court said that, “to state a claim under the ‘unreasonable intrusion’ tort, the plaintiff must allege a physical intrusion which is analogous to trespass.” Anderson, 283 Ga.App. at 550(2), 642 S.E.2d 105 (punctuation omitted); see also Allen, 272 Ga.App. at 864(1), 613 S.E.2d 657; Assn. Svcs., 249 Ga.App. at 632(2), 549 S.E.2d 454; Davis, 244 Ga.App. at 797(2), 536 S.E.2d 809. In more recent cases, we have adhered to the requirement of a “physical intrusion,” but with the understanding “that this ‘physical’ requirement can be met by showing that the defendant conducted surveillance on the plaintiff or otherwise monitored her activities.” Anderson, 283 Ga.App. at 550(2), 642 S.E.2d 105. Benedict does not allege, however, that State Farm made any “physical intrusion which is analogous to trespass” or that State Farm “conducted surveillance on [Benedict] or otherwise monitored [his] activities.”

Benedict instead alleges only that State Farm representatives placed repeated calls to his telephone number, not for any legitimate business purpose, but merely to harass, bother, and annoy him.⁴ We do not doubt that such a pattern of conduct may be a substantial annoyance to the recipient of the calls and may disturb his peace and tranquility. But Benedict does not point us to any case—and we have not found any case—in which the Supreme Court or our Court has held that merely annoying someone or disturbing his peace or tranquility, without more, amounts to an actionable invasion of privacy. To the contrary, the cases in which we have found actionable intrusions involved visual surveillance of a plaintiff as she was engaged in her private affairs, Anderson, 283 Ga.App. at 552(2), 642 S.E.2d 105, electronic surveillance of a plaintiff while she was in private places, Allen, 272 Ga.App. at 864(1), 613 S.E.2d 657, physical trespasses upon private property, Assn. Svcs., 249 Ga.App. at 632(2), 549 S.E.2d 454, ⁵ or an unwanted, physical touching of the plaintiff, Troncalli, 237 Ga.App. at 14(2), 514 S.E.2d 478. Because Benedict does not allege any conduct that is akin to surveillance, a physical trespass upon his property, or a physical touching of his person, we must conclude that Benedict fails to state a claim upon which relief can be granted under any of our intrusion precedents.

In an effort to avoid this conclusion, Benedict cites our statement in Anderson that “a relatively harmless activity can become tortious with repetition, as when, for example, telephone calls ‘are repeated with such persistence and frequency as to amount to a course of hounding the plaintiff,’ and becoming ‘a substantial burden to his existence.’ ” 283 Ga.App. at 552(2), 642 S.E.2d 105 (quoting Restatement (Second) of Torts § 652B, comments c, d). We are not persuaded that Anderson requires a different result in this case. In the first place, Anderson involved visual surveillance—following the plaintiff about town and photographing her—and did not involve harassing telephone calls, so the statement on which Benedict relies is mere dicta. And in any event, even under the...