Gignilliat v. Gsb
| Decision Date | 12 October 2009 |
| Docket Number | No. 26735.,26735. |
| Citation | 684 S.E.2d 756,385 S.C. 452 |
| Court | South Carolina Supreme Court |
| Parties | Joanne Levesque GIGNILLIAT, Appellant, v. GIGNILLIAT, SAVITZ & BETTIS, L.L.P., Respondent. |
Thomas L. Moses and Timothy J. Monahan, both of Monahan & Moses, of Greenville, for Appellant.
John Thomas Lay and Jenkins M. Mann, both of Ellis Lawhorne & Sims, of Columbia, and W. Duvall Spruill, of Turner, Padget, Graham & Laney, of Columbia, for Respondent.
Joanne Levesque Gignilliat (Mrs. Gignilliat) appeals from an order granting summary judgment to Gignilliat, Savitz & Bettis, L.L.P. (GSB) on her claims arising from GSB's continued use of her husband's name in the law firm name after his death. We affirm.
Julian Gignilliat (Gignilliat) was a founding partner in 1968 of what became the GSB law firm. The firm did not have a written partnership agreement. Gignilliat was diagnosed with a serious illness in 2001. Gignilliat died on June 22, 2002. It is undisputed that Gignilliat, cognizant of his terminal illness, requested that GSB continue to use his name after his death and that GSB not be sued.1
The Personal Representative (PR) of the Estate of Julian Gignilliat filed an action against GSB and six partners in the firm at Mrs. Gignilliat's request. The PR alleged GSB continued to use and profit from the Gignilliat name without the consent of Gignilliat's estate and without making compensation for its use.
A Consent Order was filed wherein the PR of the estate assigned Mrs. Gignilliat the sole right to any of the estate's claims arising out of the complaint. Subsequently, Mrs. Gignilliat filed an amended complaint naming herself as the plaintiff in which she sought a declaratory judgment regarding the defendants' right to continue using the Gignilliat name without consent, and she asserted claims for (1) infringement on the right of publicity, (2) conversion, (3) unjust enrichment, and (4) quantum meruit. She sought damages and an injunction preventing further use of the Gignilliat name without compensation.
The circuit court granted GSB's motion for summary judgment, finding no genuine issues of material fact existed as to any of these claims. The circuit court noted, "No South Carolina case has ever directly addressed whether a law firm may continue to use a deceased partner's name." Mrs. Gignilliat appeals, arguing the circuit court erred in granting summary judgment to GSB on all of her claims.2
Rule 56(c) of the South Carolina Rules of Civil Procedure provides that a trial court may grant a motion for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), SCRCP.
"In determining whether any triable issues of fact exist, the court must view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the non-moving party." Brockbank v. Best Capital Corp., 341 S.C. 372, 378-79, 534 S.E.2d 688, 692 (2000). An appellate court reviews the granting of summary judgment under the same standard applied by the trial court under Rule 56(c), SCRCP. Id. at 379, 534 S.E.2d at 692. "Summary judgment should not be granted even when there is no dispute as to evidentiary facts if there is dispute as to the conclusion to be drawn from those facts." Id. at 378, 534 S.E.2d at 692.
Mrs. Gignilliat first contends the circuit court erred in granting summary judgment to GSB on her claim for infringement on the right of publicity. We disagree.
In her amended complaint, Mrs. Gignilliat asserted a claim entitled "Infringement on the Right of Publicity," in which she alleged (1) she owns an enforceable right in the Gignilliat identity, (2) GSB is using some aspect of Gignilliat's identity or persona (his surname) without permission and in a manner that makes Julian Gignilliat identifiable by GSB's use, and (3) GSB's use of the Gignilliat name is likely to cause damage to the commercial value of that persona. Mrs. Gignilliat maintained she was entitled to compensation for the use of Gignilliat's name by GSB and an injunction prohibiting its further use without just compensation.
The circuit court granted GSB's motion for summary judgment, finding South Carolina has not recognized the tort of infringement on the right of publicity. The court noted South Carolina does recognize the tort of wrongful appropriation of personality, but stated Mrs. Gignilliat did not label her cause of action as wrongful appropriation and she would not be entitled to recovery under this theory, in any event.
The court further ruled Mrs. Gignilliat was not entitled to any recovery for use of the Gignilliat name because her claims for damages concerned only the value of professional goodwill, which has no value apart from the individual professional. The court also found the South Carolina Rules of Professional Conduct prevent payment to Mrs. Gignilliat because they prohibit lawyers from sharing fees with nonlawyers. Finally, the court ruled any claim for publicity or wrongful appropriation does not survive the death of the named individual.
(1) Classification of Tort
Initially, we note that the character of a complaint is determined by its factual allegations, not the label assigned to it.
"The right of publicity is best defined as the `inherent right of every human being to control the commercial use of his or her identity.'" Thomas Phillip Boggess V, Cause of Action for an Infringement of the Right of Publicity, 31 Causes of Action 2d 121, 144 (2006) (quoting McCarthy, The Rights of Publicity and Privacy 2d § 1:3). "The focus is on commercial use and the right to control that use and to be compensated monetarily for that use; whereas, the right to privacy addresses damages of a person's mental psyche." Id. at 141.
Professor William Prosser identified four basic torts under the right to privacy: (1) intrusion, (2) disclosure, (3) false light, and (4) appropriation. Id. at 139. The first three torts are based upon the idea that a person has the right to be left alone, whereas the fourth is based on the theory that a person has the right to control his or her identity. Id. The term "right of publicity" was coined to break away from the theory of the right to privacy. Id. at 138. Most states now recognize some form of the right of publicity, either under the common law or by statute. Id. at 140.
Jurisdictions have recognized a right of publicity either by expressly acknowledging a separate tort for the right of publicity or by finding it is encompassed within the four classic privacy torts, specifically, wrongful appropriation. See Pooley v. Nat'l Hole-In-One Ass'n, 89 F.Supp.2d 1108, 1111 (D.Ariz. 2000) (); Winterland Concessions Co. v. Sileo, 528 F.Supp. 1201, 1213 (D.Ill.1981) ( ).
We have previously stated that South Carolina recognizes three distinct causes of action under the rubric of invasion of privacy:
In South Carolina, there are three separate and distinct causes of action for invasion of privacy: 1) wrongful appropriation of personality; 2) wrongful publicizing of private affairs; and 3) wrongful intrusion into private affairs. Swinton Creek Nursery v. Edisto Farm Credit, 334 S.C. 469, 514 S.E.2d 126 (1999). Wrongful appropriation of personality involves the intentional, unconsented use of the plaintiff's name, likeness, or identity by the defendant for his own benefit. The gist of the action is the violation of the plaintiff's exclusive right at common law to publicize and profit from his name, likeness, and other aspects of personal identity. Snakenberg v. Hartford Cas. Ins. Co., 299 S.C. 164, 383 S.E.2d 2 (Ct.App.1989).
Sloan v. South Carolina Dep't. of Pub. Safety, 355 S.C. 321, 325-26, 586 S.E.2d 108, 110 (2003).
Encompassed in these three recognized torts is the infringement on the right of publicity; it is denominated wrongful appropriation of personality. It addresses the plaintiff's right to the commercial protection of his name, likeness, or identity. See id. at 326, 586 S.E.2d at 110 ().
In fact, we have recognized this cause of action in some form since at least 1940. In Holloman v. Life Insurance Co. of Virginia, 192 S.C. 454, 458, 7 S.E.2d 169, 171 (1940), we considered the following question: "Does the invasion of privacy by a commercial use of plaintiff's name against her consent entitle plaintiff to damages?" We answered in the affirmative:
The right of privacy is one which was not definitely recognized by the law until comparatively recent times. But we find ourselves in agreement with a number of authorities to the effect that the violation of such a right is under certain circumstances a tort which would entitle the injured person to recover damages. But the right of privacy is correctly defined in ...
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