Hoover v. Tuttle

• Decision Date: 25 November 1992
• Citation: 611 So.2d 290
• Parties: Harry P. HOOVER v. Craig TUTTLE, et al. 1910690.
• Court: Alabama Supreme Court

Page 290

611 So.2d 290

Harry P. HOOVER v. Craig TUTTLE, et al.

1910690.

Supreme Court of Alabama.

Nov. 25, 1992.

Robert M. Shipman, Huntsville, for appellant.

D. Edward Starnes III and Kelly M. McDonald of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellees.

HOUSTON, Justice.

Harry P. Hoover sued Craig Tuttle; James Mullens; ¹ Albert Wright; and American Legion Buford D. Byrom Post 176, Inc. ("the Post"); alleging, in pertinent part, that the defendants had defamed him and had invaded his privacy, and that the defendants had conspired to defame him and to invade his privacy. The trial court entered a summary judgment for the defendants. Hoover appealed. We affirm in part, reverse in part, and remand.

The summary judgment was proper in this case if there was no genuine issue of material fact and the defendants were entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on the defendants to make a prima facie showing that no genuine issue of material fact existed and that they were entitled to a judgment as a matter of law. If that showing was made, then the burden shifted to Hoover to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against him. In determining whether there was a genuine issue of material fact, we must view the evidence in a light most favorable to Hoover and must resolve all reasonable doubts against the defendants. Stafford v. Mississippi Valley Title Ins. Co., 569 So.2d 720 (Ala.1990). Because this case was not pending on June 11, 1987, the applicable standard of review is the "substantial evidence" rule. Ala.Code 1975, § 12-21-12.

The evidence in this case, viewed in a light most favorable to Hoover, shows that Tuttle, Mullens, and Wright were members of the Post's executive committee, which was responsible for, among other things, evaluating and voting on applications for the Post's vacant club manager position. Hoover applied for that position and submitted a resume. His application was rejected, however, during a committee meeting at which Wright's wife, a less qualified applicant, was hired. Hoover submitted the following affidavit of another member of the executive committee, Frank Harris, as evidence of what occurred during that meeting:

"On 5 June 1990, at the regular executive meeting, we were discussing resumes for the manager position within the Post. Mr. James Daily, Chairman of the Resume Review Committee, discussed the abilities of those who were the most qualified to fill the manager's position. One by one they were turned down for one reason or another. Of all the resumes received, one was outstanding and Mr. James Daily went over his qualifications and recommended he be considered by the Board. The candidate was Harry P. Hoover, who is a retired military person with 28 years in food and beverage management, 18 years in military clubs, and 10 years in country clubs.

"When Mr. Daily finished with his qualifications, Mr. Craig Tuttle, past Post Commander (now Adjutant) stated that Hoover had received a dishonorable discharge from the service. Then James I. Mullens, Service Officer, said yes, that he had guarded him and escorted him around the base. Immediately, Mr. Albert Wright, 3 year trustee, spoke up and stated, yes, he [Hoover] was involved with MSGT Higgnuts. (The NCO who was under congressional investigation for stealing millions of dollars from the Army NCO clubs in the 1960s (thereabout)).

"I stated [that] if this was true we could not consider him for the position. His application was set aside. With this action, there was only one application left to review. The applicant was Elizabeth Wright, who is the wife of Albert Wright (3 year trustee), and of course, was voted in as manager. She had no outstanding qualifications and occupied the position of Assistant Manager for several years.

"I had also been appointed a member on the Review Committee and after the meetings, I began thinking about everything that had been said during the meeting. I had read Mr. Hoover's resume and I remembered he had retired from the Air Force and could not have been involved with this Army scandal. I called Mr. Daily for his copy of Hoover's resume, which he delivered the next day.

"After re-reading Hoover's resume, I was convinced that they had deliberately lied about Mr. Hoover to get Albert Wright's wife in as manager....

"On or about 11 June 1990, I called Mr. Hoover but received no answer. I called again on the 15th of June and was told he was out and to call again tomorrow. I never had a chance to call him until the 19th or 20th of June, 1990. I told Mr. Hoover who I was and told him of the incident regarding his resume and what three of the officers had to say about him receiving a dishonorable discharge when his name was recommended for consideration for Post Manager. Mr. Hoover stated these accusations were false and that he would take legal action if necessary...."

Tuttle, Mullens, and Wright denied making any defamatory comments concerning Hoover's military service record.

In Phillips v. Smalley Maintenance Services, Inc., 435 So.2d 705, 708 (Ala.1983), this Court noted:

"It is generally accepted that the invasion of privacy tort consists of four distinct wrongs: (1) The intrusion upon the plaintiff's physical solitude or seclusion; (2) publicity which violates the ordinary decencies; (3) putting the plaintiff in a false, but not necessarily defamatory, position in the public eye; and (4) the appropriation of some element of the plaintiff's personality for a commercial use. Norris v. Moskin Stores, Inc., 272 Ala. 174, 132 So.2d 321 (Ala.1961), citing W. Prosser, Law of Torts, pp. 637-39 (2d ed. 1955)."

The evidence in the present case, even when viewed most favorably toward Hoover, was insufficient to support Hoover's claim of an invasion of his privacy. Hoover submitted a job application and a resume to the Post's executive committee. The comments of Tuttle, Mullens, and Wright, if made at all, were made in a private meeting of the Post's executive committee. There was no evidence that the actions of Tuttle, Mullens, and Wright constituted an intrusion into Hoover's private concerns, either by physical intrusion or through some other form of investigation or examination. See Phillips, at 710-11. Likewise, there was no evidence that the comments allegedly made by Tuttle, Mullens, and Wright were made outside of the meeting of the executive committee; therefore, Hoover could not have been subjected to publicity that would violate ordinary decencies or that would create a false image of Hoover in the public's eye. Finally, there was no evidence that Tuttle, Mullens, and Wright appropriated some element of Hoover's personality for a commercial purpose. The evidence tends to show only that Tuttle, Mullens, and Wright made false statements to other members of the committee about Hoover's military service for the purpose of discrediting him and, thus, clearing the way for Wright's wife to be hired for the position of club manager. Therefore, if Hoover has actionable claims against these defendants, th...