Lewis v. LeGrow

Citation670 N.W.2d 675,258 Mich. App. 175
Decision Date16 October 2003
Docket NumberDocket No. 234727.,Docket No. 234723,Docket No. 234726
PartiesJessica LEWIS, Plaintiff-Appellee, v. James Frances LeGROW, Defendant-Appellant. Bethany L. Dennis, Plaintiff-Appellee, v. James Frances LeGrow, Defendant-Appellant. Amy Shemanski, Plaintiff-Appellee, v. James Frances LeGrow, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Michael J. Kelly, Flint, for Jessica Lewis.

Chapman Hardin, P.L.L.C. (by Kenneth J. Hardin), Bloomfield Hills, for Bethany L. Dennis.

Leonard B. Shulman and Ted E. Bean, Flint, Grand Blanc, for Amy Shemanski.

O'Neill, Wallace & Doyle, P.C. (by Charles F. Filipiak), Flint, for James F. LeGrow.

Before: MARKEY, P.J., and CAVANAGH, and HOEKSTRA, JJ.

MARKEY, P.J.

This case involves the surreptitious, nonconsensual videotaping of intimate acts of sexual relations in defendant James F. Le-Grow's bedroom. After a joint trial, a jury found that defendant violated M.C.L. § 750.539d, invaded plaintiffs Jessica Lewis, Bethany L. Dennis, and Amy Shemanski's common-law right to privacy, and intentionally or recklessly inflicted emotional distress. Defendant argues on appeal that because plaintiffs willingly exposed themselves while having sex with him, his bedroom was not a "private place" under § 539d, nor could he intrude on their privacy. Further, defendant argues that secretly videotaping himself having sex with plaintiffs was not sufficiently outrageous, nor was his conduct intentional or reckless, to warrant submitting plaintiffs' claims of intentional infliction of emotional distress to the jury. Finally, defendant argues that the trial court denied him a fair trial by erroneously admitting certain evidence and by failing to give a requested jury instruction. We conclude, in this case of first impression, that defendant's bedroom is a "private place" within the plain meaning of § 539d, and that plaintiffs presented sufficient evidence to survive dismissal on all theories of liability. Finally, we conclude there was no error committed during trial warranting reversal.

I. Material Facts and Proceedings

Each plaintiff dated defendant at various times. Shemanski met defendant when she bought the house next to his in May 1996. She and defendant dated periodically for about three years starting in August 1996. In April 1999, Shemanski found a plastic bag on her side door. Inside was an unlabeled videotape, which Shemanski soon discovered showed each plaintiff having sex with defendant in his bedroom. Shemanski remembered the day defendant videotaped them having sex and recalled seeing a video camera on defendant's dresser that was partially covered with clothes. Shemanski testified that she did not know the video camera was on and she did not consent to defendant's videotaping them having sex.

Lewis began dating defendant in August 1996, and their relationship became serious in October 1996. Lewis ended her relationship with defendant in June 1997 when she became suspicious that he was seeing another woman. On August 7, 1999, Lewis received a telephone call from defendant, who asked her whether Shemanski had called her. Defendant told Lewis that Shemanski had a videotape of Lewis and defendant having sex, which defendant told her he had made while they were dating. The next day, Lewis called Shemanski to get the videotape. Lewis ultimately took the videotape to the Burton Police Department. Lewis testified that she never consented to being videotaped having sex with defendant.

Dennis began dating defendant in October 1992. They had a sporadic relationship for 5-1/2 years, which finally ended in July 1998. After their relationship ended, Dennis had occasional contact with defendant until September 1999, when she received a telephone call from the police advising her that they had a videotape that depicted three people having sexual relations with defendant. The officer told Dennis that the police knew who two of the people were, and they thought that the third person was Dennis. Dennis confirmed she was the third person and testified that she was unaware that defendant videotaped her.

All plaintiffs testified to experiencing emotional distress after they learned about the videotape. For example, Dennis testified:

I was very hurt. I think that was what was [sic] my initial reactions ... that somebody that loved me could do this kind of thing to me ... and I had a lot of anxiety ... because this had happened. It was something that I couldn't fix.... I was scared about what was going on with this tape.... I didn't know how many people had seen it, how many tapes there were ... if there were other copies, if he had shown it to anybody, whether people had a tape, anything... it could have been out on the Internet, you know, I was just very ... humiliated.

Dennis also claimed that she thinks about the videotaping several times a day and that her preoccupation with the ordeal has sparked numerous physical injuries. Dennis testified:

I wake up in the middle of the night, you know, I wake up probably two, three o'clock in the morning ... just wide awake like, "Oh, my God, something's wrong," and just like, "What's going on?".... Just before the tape came out I—I started a new job and ... I know that I haven't been a hundred percent [at this new job] `cause it's a distraction, but when you sit down at your computer and I start thinking about it and I have—have a hard time concentrating.... I find myself not being able to remember things.... I've been very stressed about it.... I think this part of the reason why, you know, I don't sleep good at night.

Lewis presented the testimony of her gynecologist, Dr. Sheryl Hinton, who noted that Lewis was suffering from posttraumatic stress syndrome because of the videotaping.

Defendant testified that each plaintiff consented to being videotaped. He claimed that he put all the videotapes depicting him having sex with plaintiffs in a shoebox in his closet. Defendant testified that he never showed the videotapes to anyone or told anyone about them. Indeed, he believed that he either destroyed or recorded over each of them. However, defendant testified that his house was broken into and ransacked in September of 1998. Because clothes and other gifts that defendant's then girlfriend had given him were missing, defendant believed that it was she who had broken into his house. Defendant also believed that whoever broke into his house stole the videotapes and placed one of them on Shemanski's door. Defendant claimed he did not notice that the videotapes were missing because he thought that he had destroyed them.

The jury found in favor of each plaintiff against defendant on all theories of liability: violating § 539d, invasion of privacy, and intentional infliction of emotional distress. The jury awarded Dennis $100,000 for past and present emotional distress, mental anguish, fright, shock, denial of social pleasure, embarrassment, or mortification; $1,120 for medical expenses; $50,000 for future emotional distress, mental anguish, fright, shock, denial of social pleasure, embarrassment, or mortification; and, $4,000 for future medical expenses. The jury awarded Lewis $75,000 for past and present emotional distress, mental anguish, fright, shock, denial of social pleasure, embarrassment, or mortification, and $25,000 in future damages. The jury awarded Shemanski $50,000 for past and present emotional distress, mental anguish, fright, shock, denial of social pleasure, embarrassment, or mortification, and $50,000 in future damages. The trial court entered final judgments for plaintiffs, adding taxable costs and interest, and adjusting the awards of future damage by five percent to reflect present value.

Defendant appeals by right. This Court denied defendant's motion for peremptory reversal on April 11, 2002.

II. MCL 750.539d

Defendant first argues that secretly videotaping consensual sexual activity that includes oneself in one's own bedroom does not violate § 539d because a bedroom is not a "private place" within the meaning of the statute. We disagree.

A. Standard of Review

The interpretation and application of a statute is a question of law we review de novo. Eggleston v. Bio-Medical Applications of Detroit, Inc., 468 Mich. 29, 32, 658 N.W.2d 139 (2003). We apply the following rules in construing the statute. Our primary goal is to ascertain and effectuate the intent of the Legislature. In re MCI Telecom. Complaint, 460 Mich. 396, 411, 596 N.W.2d 164 (1999). In doing so, we first review the specific wording of the statute itself. Id. If the plain and ordinary meaning of the language of the statute is clear and unambiguous, judicial construction is neither required nor permitted. Id. Further, unless defined in the statute, every word or phrase of a statute should be accorded its plain and ordinary meaning, considering the context in which the words are used. Robertson v. DaimlerChrysler Corp., 465 Mich. 732, 748, 641 N.W.2d 567 (2002). A dictionary may be consulted to determine the meaning of undefined words, People v. Stone, 463 Mich. 558, 563, 621 N.W.2d 702 (2001), but otherwise the statutory definition controls, Robertson, supra.

Section 539d, together with M.C.L. § 750. 539i, creates a criminal and civil cause of action for invasion of privacy, which Michigan has long recognized as a common-law tort. Beaumont v. Brown, 401 Mich. 80, 93-95, 257 N.W.2d 522 (1977), overruled on other grounds, Bradley v. Saranac Community Schools Bd. of Ed., 455 Mich. 285, 565 N.W.2d 650 (1997); DeMay v. Roberts, 46 Mich. 160, 9 N.W. 146 (1881). We presume that the Legislature is aware of the common law that legislation will affect; therefore, if the express language of legislation conflicts with the common law, the unambiguous language of the statute must control. Bennett v. Weitz, 220 Mich.App. 295, 299, 559 N.W.2d 354 (1996); ...

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