Lovejoy v. Linehan

• Decision Date: 23 February 2011
• Docket Number: No. 2010–343.,2010–343.
• Court: New Hampshire Supreme Court
• Parties: David J. LOVEJOYv.James Daniel LINEHAN and another.

161 N.H. 483
20 A.3d 274
39 Media L. Rep. 1477

David J. LOVEJOY
v.
James Daniel LINEHAN and another.

No. 2010–343.

Supreme Court of New Hampshire.

Argued: Nov. 17, 2010.Opinion Issued: Feb. 23, 2011.

[20 A.3d 275]

Douglas, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III and Jason R.L. Major on the brief, and Mr. Douglas orally), for the plaintiff.Orr & Reno, P.A., of Concord (Michael D. Ramsdell on the brief and orally), for defendant James Daniel Linehan.McNeill, Taylor & Gallo, P.A., of Dover (R. Peter Taylor on the brief and orally), for defendant Mark Peirce.Sheehan Phinney Bass + Green, P.A., of Manchester (Christopher Cole and Elizabeth A. Bailey on the memorandum of law), for defendant Rockingham County.Malloy & Sullivan, of Manchester, for defendant Karen Dandurant, filed no brief.HICKS, J.

[161 N.H. 484] The plaintiff, David J. Lovejoy, appeals an order of the Superior Court ( Nicolosi, J.) dismissing his claim for invasion of privacy by public disclosure of private facts against defendants James Daniel Linehan and Mark Peirce. We affirm.

The following facts are recited in the trial court's order or are supported by the record. This case arises out of the 2009 election for Rockingham County Sheriff in which the plaintiff challenged Linehan, the incumbent. Peirce was a deputy sheriff and Linehan's second-in-command.

On October 27, 2008, the Portsmouth Herald published an article written by defendant Karen Dandurant that contained the following: “A record [161 N.H. 485] provided to the Herald said Lovejoy was involved in a case of simple assault and was convicted in 1989. Lovejoy said the case was annulled and was thrown out of court by the judge.”

The plaintiff brought suit against Linehan, Peirce, Dandurant and Rockingham County, which was alleged to be responsible for the actions of Linehan and Peirce, its employees, under the doctrine of respondeat superior. The amended complaint alleges that Linehan and Peirce, assisted by other county employees, prepared “documents containing information about the plaintiff's annulled conviction.” Linehan and Peirce then allegedly provided the “annulled criminal record to Ms.

[20 A.3d 276]

Dandurant for a story they knew she was writing for the Portsmouth Herald.”

The complaint alleged a number of counts against the various defendants, only one of which is relevant here: Count II alleged a claim against all defendants for invasion of privacy by public disclosure of private facts. It alleged that such disclosure “put the plaintiff in a position of having to publicly discuss a matter that the legislature has declared private, confidential, and prohibited from publicity under RSA 651:5.”

Linehan, Peirce and Dandurant moved to dismiss count II for failure to plead sufficient facts on which to obtain relief, which the trial court granted. On appeal, the plaintiff moved to nonsuit Dandurant with prejudice. We denied the motion without prejudice to the plaintiff seeking relief in the trial court and remanded for that limited purpose. We now review the plaintiff's claims against Linehan and Peirce under the following standard: “We must, as the trial court was required to, determine whether the allegations in the plaintiff's pleadings are reasonably susceptible of a construction that would permit recovery.” Provencal v. Vermont Mut. Ins. Co., 132 N.H. 742, 744–45, 571 A.2d 276 (1990) (quotation and brackets omitted).

We assume the [plaintiff's] pleadings to be true and construe all reasonable inferences in the light most favorable to [him]. We then engage in a threshold inquiry that tests the facts in [his] petition against the applicable law, and if the allegations constitute a basis for legal relief, we must hold that it was improper to grant the motion to dismiss.

McNamara v. Hersh, 157 N.H. 72, 73, 945 A.2d 18 (2008) (citation omitted).

In Hamberger v. Eastman, 106 N.H. 107, 206 A.2d 239 (1964), we recognized that “invasion of the right of privacy is not a single tort but consists of four distinct torts,” including: “(1) intrusion upon the plaintiff's physical and mental solitude or seclusion; (2) public disclosure of private facts; (3) publicity which places the plaintiff in a false light in the public eye; (4) appropriation, for the defendant's benefit or advantage, of the plaintiff's [161 N.H. 486] name or likeness.” Hamberger, 106 N.H. at 109, 110, 206 A.2d 239. We deal here with the public disclosure form of the tort, which “involves the invasion of something secret, secluded or private pertaining to the plaintiff.” Karch v. BayBank FSB, 147 N.H. 525, 535, 794 A.2d 763 (2002) (quotation omitted).

As set forth in the Restatement (Second) of Torts:

One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that

(a) would be highly offensive to a reasonable person, and

(b) is not of legitimate concern to the public.

Restatement (Second) of Torts § 652D (1977). The trial court ruled that the plaintiff's claim failed as a matter of law because “the disclosures concerning the annulled conviction addressed a matter of legitimate public concern.”

On appeal, the plaintiff contends that the trial court erred in concluding that his annulled conviction was not private and was a matter of legitimate public concern. He argues: “[G]iven the legislative and judicial policy determinations inherent in the annulment of a criminal record, and the existence of a criminal sanction for disclosure of an annulled record, a more serious and meaningful definition of a ‘private fact’ would be hard to

[20 A.3d 277]

imagine.” The plaintiff's argument relies upon the statutory provision regarding annulment of criminal records, RSA 651:5 (2007 & Supp.2010). Therefore, we examine the relevant portions of that statute.

RSA 651:5 provides, in part, that upon the entry of an annulment order, “[t]he person whose record is annulled shall be treated in all respects as if he had never been arrested, convicted or sentenced, except” in certain circumstances not relevant to this appeal. RSA 651:5,...