Vespa v. Safety Federal Sav. and Loan Ass'n
| Citation | 549 P.2d 878,219 Kan. 578 |
| Decision Date | 08 May 1976 |
| Docket Number | No. 47882,47882 |
| Parties | Marianne E. VESPA, Appellant, v. SAFETY FEDERAL SAVINGS & LOAN ASSOCIATION, Appellee. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the Court
In an action for damages based upon claims of invasion of privacy it is held that the facts, viewed in a light most favorable to the plaintiff, fail to disclose any actionable invasion of privacy, and that the trial court properly sustained defendant's motion for summary judgment.
William D. Hamblin, Overland Park, argued the cause, and Thomas W. Brooks, Overland Park, was with him on the brief for appellant.
Gerald E. Williams of Breyfogle, Gardner, Martin, Davis & Kreamer, Olathe, argued the cause and was on the brief for appellee.
This is an action for damages based upon claims of invasion of privacy. After discovery was completed, the trial court sustained defendant's motion for summary judgment, and plaintiff appeals.
Plaintiff bases her claim upon three incidents. The first is an unannounced visit to her home by John E. Wiggins, a vice president of the defendant, Safety Federal. The second is a demand by Safety Federal, corrected within a few days, for some twelve hundred dollars more than was due in payment of its loan. The third is the release of information by Wiggins to a realtor concerning the judgment and the redemption period fixed in a foreclosure action brought by Safety Federal against Mrs. Vespa.
The record discloses these facts. Plaintiff and her then husband, William Vespa, purchased a residence in the Oak Park subdivision in Johnson County, Kansas, from the J. C. Nichols Company in 1970. The Vespas gave a first mortgage on the property to J. C. Nichols who assigned the note and mortgage to Safety Federal. The loan became delinquent in July, 1971. Safety Federal commenced foreclosure proceedings on April 28, 1972, and on September 19, 1972, obtained a decree of foreclosure in the district court of Johnson County, Kansas. Shortly thereafter plaintiff and her husband were divorced. The decree of divorce awarded the realty to plaintiff. An order of sale issued out of the foreclosure proceedings, and on October 26, 1972, the sheriff sold the property to Safety Federal, and a certificate of purchase issued to it. Plaintiff was granted six months redemption, which period expired on April 26, 1973.
Plaintiff made written application for a loan to Plaza Savings and Loan Association on April 3, 1973. This application was approved April 10, 1973. Meanwhile, and on April 5, 1973, Mr. Wiggins called upon plaintiff at her residence. He identified himself, presented his business card, entered the home and sat down in the chair off of the hallway. Plaintiff states that she did not invite him to enter, but she did not ask him to leave because she was interested in finding out why he was there and what he had to say. Wiggins stated that he called at the home to find out if the property was going to be redeemed, and if not then whether repairs would be necessary to make the house marketable. According to plaintiff, Wiggins asked her what she was going to do as she had to be out of the house pretty soon. He inquired about her divorce and whether there was a chance of reconciliation. He told her that this was the first foreclosure in Oak Park, and that 'made her feel like dirt.' She told him of her application to Plaza Savings, and he commented that she was two years behind in her payments; that obtaining credit would be difficult after foreclosure; and that there was no way in which she could get a new loan or sell the house in such a short period of time. He said that he was looking for a home for his elderly parents, and she should consider selling the house to him. A realtor called Mrs. Vespa while Wiggins was there, and inquired about selling the home. Wiggins had previously had a conversation with the realtor, in which he had disclosed the mortgage foreclosure and the redemption period, and the realtor called to see if the home might be for sale. The phone call upset Mrs. Vespa.
Mr. Vespa arrived about midway though the Wiggins' visit. Mr. Vespa had an automobile stored in the attached garage. He showed this car to Wiggins and offered to sell it to him. Wiggins viewed the car in the garage and returned on a later date to give it a test drive. Mr. Wiggins was not, at any time, requested to leave the home. His visit on April 5 lasted approximately three hours.
Plaza Savings and Loan approved plaintiff's loan application on April 10, 1973. One of its officers then contacted Mathew Grant, Jr., an employee of Safety Federal, to ascertain the amount required to redeem the property. Mr. Grant, by letter April 12, 1973, advised Plaza Savings that the redemption amount would be $37,410.80. Mr. Grant erroneously included attorneys' fees in the amount, but upon discovering that they were not recoverable in a Kansas foreclosure, corrected the amount and wrote a second letter dated April 20, 1973, which fixed the amount at $36,202.91. The plaintiff redeemed the home for that figure, and she does not challenge its correctness. In her deposition, plaintiff conceded that she had no evidence to support her claim that the issuance of the incorrect settlement figure was deliberate, malicious, or done with intent to deceive or defraud, and she acknowledged that she redeemed her property for the correct amount and incurred no loss of money and no loss of her redemption rights.
Some of the statements attributed to Mr. Wiggins were controverted or explained by him in his testimony; however, we have stated and we consider only the evidence most favorable to the plaintiff.
Plaintiff contends that it was error for the court 'to weigh conflicting deposition testimony and interrogatory answers and resolve such conflicting evidence against the plaintiff, and to order summar judgment that conflicted with the deposition testimony and interrogatory answers' and plaintiff claims that it was error for the court to find as a matter of law that plaintiff's first amended petition, with supporting deposition testimony and interrogatory answers, did not support a cause of action triable by a jury.
Plaintiff does not argue these matters separately, but presents a single and rather rambling argument. Plaintiff contends that there are genuine issues of material fact; that the court weighed conflicting evidence and resolved the conflict adversely to plaintiff, and that the evidence clearly shows that there was an invasion of plaintiff's privacy. The sole issue on this appeal, as we see it, is whether or not the court's ruling granting the motion for summary judgment was proper.
Plaintiff does not point to anything in the record indicating that the court weighed conflicting testimony, and we are unable to find any indication that the court did so. There is...
To continue reading
Request your trial
-
Crump v. Beckley Newspapers, Inc.
...1981); Dietemann v. Time, Inc., 284 F.Supp. 925 (C.D.Calif.1968), aff'd, 449 F.2d 245 (9th Cir.1971); Vespa v. Safety Federal Savings & Loan Ass'n, 219 Kan. 578, 549 P.2d 878 (1976); Volk v. Auto-Dine Corp., 177 N.W.2d 525 (N.D.1970). Consent may be given either expressly, or impliedly, suc......
-
Gomez v. Hug
...judgment affirmed); Wiehe v. Kukal, 225 Kan. 478, 592 P.2d 860 (1979) (judgment for plaintiff reversed); Vespa v. Safety Fed. Savings & Loan Ass'n, 219 Kan. 578, 549 P.2d 878 (1976) (summary judgment affirmed); Dotson v. McLaughlin, 216 Kan. 201, 531 P.2d 1 (1975) (judgment for plaintiff re......
-
Hoard v. Shawnee Mission Medical Center
...v. McLaughlin, 216 Kan. 201, 531 P.2d 1 (1975); Young v. Hecht, 3 Kan.App.2d 510, 597 P.2d 682 (1979); Vespa v. Safety Fed. Savings & Loan Ass'n, 219 Kan. 578, 549 P.2d 878 (1976); Peasley v. TeleCheck of Kansas, Inc., 6 Kan.App.2d 990, 637 P.2d 437 In line with the foregoing cases, the act......
-
Hanrahan v. Horn, 54286
...boy" was not held to be outrageous conduct in Bradshaw v. Swagerty, 1 Kan.App.2d 213, 563 P.2d 511 (1977). Vespa v. Safety Fed. Savings & Loan Ass'n, 219 Kan. 578, 549 P.2d 878 (1976), did not find sufficiently outrageous conduct in the activities of a bank vice-president. An employer's rac......