Jennings v. Jennings

• Decision Date: 14 July 2010
• Docket Number: No. 4711.,4711.
• Court: South Carolina Court of Appeals
• Parties: M. Lee JENNINGS, Appellant,v.Gail M. JENNINGS, Holly Broome, Brenda Cooke, Individually, and BJR International Detective Agency, Inc., Respondents.

389 S.C. 190

697 S.E.2d 671

M. Lee JENNINGS, Appellant,v.Gail M. JENNINGS, Holly Broome, Brenda Cooke, Individually, and BJR International Detective Agency, Inc., Respondents.

No. 4711.

Court of Appeals of South Carolina.

Heard April 15, 2010.

Decided July 14, 2010.

Rehearing Denied Aug. 27, 2010.

Max N. Pickelsimer and Carrie A. Warner, both of Columbia, for Appellant.

Deborah Harrison Sheffield, Richard Giles Whiting, Gary W. Popwell, Jr. and John K. Koon, all of Columbia, for Respondents.

GEATHERS, J.

In this appeal, M. Lee Jennings (Husband) contends that the circuit court erred by granting Respondents' motions for summary judgment as to his cause of action for a violation of the Stored Communications Act, 18 U.S.C. §§ 2701-2712 (2006). Husband also argues that the circuit court erred by denying his motion to amend his complaint to add Thomas Neal (Neal) as a party defendant. We affirm in part, reverse in part, and remand for further proceedings.

FACTS/PROCEDURAL HISTORY

On June 21, 2006, Husband's wife, Gail Jennings (Wife), discovered a card for flowers in her car. Suspecting the flowers were not for her, Wife questioned Husband, who had recently borrowed her car, about the card. To Wife's dismay, Husband informed Wife that he had bought the flowers for another woman, with whom he had fallen in love. Although Husband refused to tell Wife the woman's full name, he mentioned that he had been corresponding with her via email at his office. That same day, the couple separated.

A few days later, Wife's daughter-in-law, Holly Broome (Broome), visited Wife at her home. Wife, who was extremely upset, told Broome about the separation and the conversation she had had with Husband. The next day, Broome, who had previously worked for Husband, logged onto Husband's Yahoo account from her personal computer by changing Husband's password. Broome proceeded to read emails that had been sent between Husband and his girlfriend. After reading a few of the emails, Broome called Wife, who came over to Broome's home. Broome printed the emails, and she and Wife made copies of them. They then gave one set of the emails to Neal, Wife's divorce attorney, and another set to Brenda Cooke (Cooke), a private investigator from the BJR International Detective Agency, Inc. (BJR) whom Wife had hired.

Broome subsequently logged onto Husband's Yahoo account on five or six additional occasions. Information she obtained about Husband's girlfriend as a result was communicated to Neal and Cooke. According to Broome, she never accessed any of Husband's unopened emails.

On June 29, 2006, Wife initiated an action in family court for divorce and separate support and maintenance. During the course of that litigation, which is still pending, Husband learned that Broome had accessed emails from his Yahoo account and that copies of those emails had been disseminated to Cooke and BJR.

In February 2007, Husband commenced this action against Wife, Broome, Cooke, and BJR, alleging causes of action for invasion of privacy (publicizing of private affairs and wrongful intrusion), conspiracy to intercept and disseminate private electronic communications, and violation of the South Carolina Homeland Security Act, S.C.Code Ann. §§ 17-30-10 to -145 (Supp.2009) (HSA). The parties filed cross-motions for summary judgment in May 2007.

In June 2007, Husband filed a motion to amend his complaint, which was granted pursuant to a Consent Order to Amend issued July 13, 2007. Later that July, Husband filed his amended complaint, adding allegations of violations of the following statutes: (i) the South Carolina Computer Crime Act (CCA), S.C.Code Ann. §§ 16-16-10 to -40 (2003 & Supp.2009); (ii) Title I of the Federal Electronic Communications Privacy Act (ECPA), 18 U.S.C. §§ 2510-2522 (2006); and (iii) Title II of the ECPA, 18 U.S.C. §§ 2701-2712 (2006), which is separately known as the Stored Communications Act (SCA).

In February 2008, Wife and Broome each moved again for summary judgment. Thereafter, Husband filed a motion to amend his complaint a second time. Among other things, Husband sought to add Neal as a party defendant.

A hearing regarding the parties' summary judgment motions and Husband's motion to amend his complaint was held in June 2008. At that hearing, Husband voluntarily withdrew his causes of action arising under the HSA, the CCA and Title I of the ECPA, as well as his cause of action for conspiracy.

By an order filed September 24, 2008, the circuit court granted Respondents' motions for summary judgment as to Husband's remaining causes of action, and it denied Husband's motion to amend his complaint. With regard to Husband's claim under section 2701 of the SCA, the circuit court held that Husband had failed to allege all of the elements necessary for a cause of action. Additionally, the circuit court found that Husband was not entitled to relief under section 2701 because the emails at issue were not in “electronic storage” as that term is defined in 18 U.S.C. § 2510(17) (2006). Furthermore, the circuit court ruled that, even if the emails were in electronic storage, Husband could not recover against Wife or Cooke because their actions did not constitute a violation of section 2701.

Husband subsequently filed a motion to reconsider, which was denied by the circuit court. This appeal followed.

ISSUES ON APPEAL

1. Did the circuit court err in granting Respondents' motions for summary judgment on Husband's cause of action for a violation of the SCA on the ground that Husband failed to allege all of the elements necessary to successfully plead a cause of action under 18 U.S.C. § 2701 (2006)?

2. Did the circuit court err in granting Respondents' motions for summary judgment on Husband's cause of action for a violation of the SCA on the ground that the emails were not in “electronic storage” as defined in 18 U.S.C. § 2510(17) (2006)?

3. Did the circuit court err by not allowing Husband to amend his complaint to add Neal as a party defendant?

STANDARD OF REVIEW

This court reviews the grant of a summary judgment motion under the same standard applied by the trial court under Rule 56(c), SCRCP. Jackson v. Bermuda Sands, Inc., 383 S.C. 11, 14 n. 2, 677 S.E.2d 612, 614 n. 2 (Ct.App.2009). Rule 56(c), SCRCP, provides that summary judgment shall be granted where “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.” In ascertaining whether any triable issue of fact exists, the evidence and all inferences which can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Belton v. Cincinnati Ins. Co., 360 S.C. 575, 578, 602 S.E.2d 389, 391 (2004).

A motion to amend a pleading is normally addressed to the sound discretion of the trial court. Porter Bros., Inc. v. Specialty Welding Co., 286 S.C. 39, 41, 331 S.E.2d 783, 784 (Ct.App.1985). The trial court's decision will not be overturned “without an abuse of discretion or unless manifest injustice has occurred.” Berry v. McLeod, 328 S.C. 435, 450, 492 S.E.2d 794, 802 (Ct.App.1997). The discretion afforded to the trial court in granting or denying an amendment “is so broad that it will rarely be disturbed on appeal.” Porter Bros., 286 S.C. at 41, 331 S.E.2d at 784.

DISCUSSION

I. Did the circuit court err in determining that Husband failed to allege all of the elements of a cause of action under section 2701 of the SCA?

Section 2701(a) of the SCA provides:

Except as provided in subsection (c) of this section whoever-

(1) intentionally accesses without authorization a facility through which an electronic communication service is provided; or

(2) intentionally exceeds an authorization to access that facility;

and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system shall be punished as provided in subsection (b) of this section.

18 U.S.C. § 2701(a) (2006) (emphasis added).

Husband contends that the circuit court erred by determining that he failed to allege all of the elements of a cause of action under Section 2701. We agree.

Here, the circuit court held that the allegations in Appellant's complaint were “fatally incomplete” because Appellant failed to specifically contend that Respondents “obtain[ed], alter[ed], or prevent[ed] authorized access to a wire or electronic communication while it [was] in electronic storage.” Because the circuit court's ruling focused upon Appellant's complaint, it appears that the circuit court treated Respondents' motions for summary judgment as motions to dismiss under Rule 12(b)(6), SCRCP.¹ However, the requirements for granting summary judgment are obviously different than the requirements for granting a Rule 12(b)(6) motion to dismiss. For instance, in ruling on a Rule 12(b)(6) motion, the court is confined to the complaint. See Berry, 328 S.C. at 441, 492 S.E.2d at 797 (“A Rule 12(b)(6) motion to dismiss for failure to state a cause of action must be resolved by the trial judge based solely on the allegations established in the complaint.”) (emphasis added). In contrast, in ruling on a summary judgment motion, “a court must consider everything in the record-pleadings, depositions, interrogatories, admissions on file, affidavits, etc.” Gilmore v. Ivey, 290 S.C. 53, 58, 348 S.E.2d 180, 183 (Ct.App.1986).

In the present case, Husband introduced evidence showing that Broome logged onto Husband's Yahoo email account without authorization by changing Husband's password. He also presented evidence that Broome, without Husband's consent, read and printed emails that were stored in Husband's Yahoo email account. Importantly, at least one court has held that comparable proof was sufficient to withstand a summary judgment motion in a section 2701 action. See Fischer v. Mt....