Wolf v. Regardie

• Decision Date: 27 January 1989
• Docket Number: No. 87-751.,87-751.
• Citation: 553 A.2d 1213
• Parties: William B. WOLF, Jr., Appellant, v. William A. REGARDIE, et al., Appellees.
• Court: D.C. Court of Appeals

553 A.2d 1213

William B. WOLF, Jr., Appellant, v. William A. REGARDIE, et al., Appellees.

No. 87-751.

District of Columbia Court of Appeals.

Argued November 8, 1988.

Decided January 27, 1989.

M. Paul Zimmerman, Washington, D.C., for appellant.

Edward L. Weidenfeld, Washington, D.C., for appellees.

Before MACK and TERRY, Associates Judges, and GALLAGHER, Senior Judge.

GALLAGHER, Senior Judge:

Appellant, William Wolf, brought suit for invasion of privacy in the Superior Court alleging intrusion upon seclusion (Counts I and II of his complaint) and publicity given to private life (Counts III and IV), stemming from two articles published in a local magazine containing brief entries about him and his various business ventures.¹ This is an appeal from the trial court's Order granting appellees' motion for summary judgment and dismissing appellant's complaint.

In granting the motion, the trial court noted that, with the exception of a few minor portions, appellant agreed to appellees' Statement of Material Facts Not in Dispute; that appellant "misconceive[d] the protectable nature of the privacy and seclusion that he claims [have] been invaded" because the published information was garnered from third parties and public records; and that he was therefore not entitled to judgment on the two "intrusion upon seclusion" counts. In addition, the court held that the matters publicized about appellant were not private ones, they would not be highly offensive to a reasonable person, and they were of legitimate concern to the public; and therefore appellant was not entitled to judgment on the two "publicity given to private life" counts. We affirm.

I

Reviewing the facts in this case in the light most favorable to appellant,² the record shows that in July, 1985, a secretary in his law office informed him that a Vanessa Grimm had telephoned and indicated a desire to interview him for inclusion in an article in Regardie's, a monthly informational magazine similar in format to Forbes dealing with matters of interest to the local business community, about "prominent and wealthy Washington real estate developers." He declined to return Grimm's calls, but finally spoke with her in early August in the hope that he could forestall his possible inclusion in the article. He refused to give Grimm any details regarding his real estate or other financial activities, stating simply that he "practice[s] law 24 hours a day, seven days a week." He ended the conversation by reiterating his desire that he not be included in the article. Grimm indicated that decision would be made by her editors.

The September 1985 issue of Regardie's contained an articled entitled "The Regardie's 100," assertedly a list of Washington's 100 wealthiest individuals, each identified by a short biographical entry. The entrants were divided into categories based on estimated net worth, and following the rubric "$20 million to $30 million" appeared this entry:

WILLIAM B. WOLF

Real estate investment

"I practice law 24 hours a day, seven days a week," says Wolf, dismissing any ties with local developers and real estate investors. Yet he has been a partner of Mel Lenkin's . . . in a number of real estate projects. He and Lenkin bought 41 percent of National Security [sic] Bank from banker Leo Bernstein. . . . Of the more than 350,000 shares that the pair bought, some 100,000 are in Wolf's name. The husband of literary agent Audrey Adler Wolf, he owns the building that houses their offices at 1001 Connecticut Avenue. With Lenkin, he owns the building at 1900 M Street as well as the building at the corner of I Street and Connecticut Avenue.

"In the course of my practice in law," he says, "I have gotten involved in real estate slightly." He is quick to say, however, that his name on a list of wealthy Washingtonians had to be a "big mistake," since he says he has not been directly involved in the "dramatic and wonderful transformation of the city." He adds, "I'm just a lawyer, one among many lawyers."

The facts would seem to indicate that when it comes to wealth, he's a little more than that. . . .

According to Wolf, he gave serious consideration to letting Regardie's "know of his pain and resentment" over being included in the article, and even contemplated initiating legal action. He thought it best, though, to refrain from pursuing the matter so as to avoid further publicity.

One year later, however, the September 1986 issue of Regardie's included an article entitled "The Second Annual Regardie's 100." While similar in nature to the 1985 version, in the 1986 edition Regardie's raised the minimum estimated net worth required for inclusion in the "Regardie's 100" from $20 million to $30 million dollars. Consequently, under the epigraph "GONE BUT NOT FORGOTTEN" and the subheading "BUMPED" appeared the following:

WILLIAM B. WOLF. He says he practices law "24 hours a day, seven days a week," but he has found the time to enter into real estate and business ventures with Mel Lenkin . . . buying into Security National Bank and a few office buildings, including 1001 Connecticut Avenue and 1900 M Street.

Appellant brought suit alleging that the research done by the Regardie's staff in preparing the articles "intentionally and maliciously intruded on [his] private affairs and concerns . . . in willful disregard for [his] rights to privacy, seclusion, and to be let alone." After protracted discovery, appellees moved for summary judgment. The trial court granted the motion on April 30, 1987. This appeal followed.

II

In reviewing the propriety of an order granting a motion for summary judgment, we embark upon an independent examination of the record. Holland v. Hannan, 456 A.2d 807, 814 (D.C. 1983). Consequently, our standard of review is identical to the trial court's standard for initially considering the motion: summary judgment is properly entered if there exists no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Nader v. de Toledano, 408 A.2d 31, 42 (D.C. 1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980); Super.Ct. Civ.R. 56(c).³

It falls to the movant first to demonstrate the absence of any factual issue from which the jury could find for the nonmoving party. Nader, supra, 408 A.2d at 42. However, the nonmoving party has a concomitant duty, in responding to the motion, to "set forth specific facts showing that there is a genuine issue for trial." Super.Ct.Civ.R. 56(e). In response to appellees' motion for summary judgment, appellant filed a "Statement of Material Facts as to Which Exist Genuine Issues to Be Litigated." Presumably he sought to oppose appellees' motion "by alleging the existence of a material factual dispute for trial." Williams v. Gerstenfeld, 514 A.2d 1172, 1176 (D.C. 1986). In our review of the record, however, we discern no disputed issue of material fact.⁴ We thus turn to examine the only remaining issue — whether there exists a legal theory entitling appellant to judgment. See Williams, supra, 514 A.2d at 1177; Nader, supra, 408 A.2d at 42.

III

Invasion of privacy is not one tort, but a complex of four, each with distinct elements and each describing a separate interest capable of being invaded.⁵ The four constituent torts are (1) intrusion upon one's solitude or seclusion; (2) public disclosure of private facts; (3) publicity that places one in a false light in the public eye; and (4) appropriating one's name or likeness for another's benefit. Vassiliades v. Garfinckel's, Brooks Bros., 492 A.2d 580, 587 (D.C. 1985); see RESTATEMENT, supra note 5, § 652A.⁶ Appellant contends only that the two Regardie's publications intruded upon his seclusion and gave publicity to his private life. Consequently, we restrict our discussion to these two issues.

A.

The foundation upon which appellant has built his assertion that Regardie's intruded upon his seclusion is the RESTATEMENT, supra note 5, § 652B, which states:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

See W. KEETON, PROSSER AND KEETON ON THE LAW OF TORTS § 117, at 854-56 (5th ed. 1984); see generally Comment, The Emerging Tort of Intrusion, 55 IOWA L.REV. 718 (1970). The tort of intrusion upon seclusion has three elements: (1) an invasion or interference by physical intrusion, by use of a defendant's sense of sight or hearing, or by use of some other form of investigation or examination, see RESTATEMENT, supra note 5, § 652B, comment (b); (2) into a place where the plaintiff has secluded himself, or into his private or secret concerns, see id.; Corcoran v. Southwestern Bell Telephone Co., 572 S.W.2d 212, 214-15 (Mo.Ct.App. 1978); Nelson v. Maine Times, 373 A.2d 1221, 1223 (Me. 1977); (3) that would be highly offensive to an ordinary, reasonable person, see DeAngelo v. Fortney, 357 Pa.Super. 127, 130, 515 A.2d 594, 595 (1986); RESTATEMENT, supra note 5, § 652B, comment (d). Unlike some other types of invasion of privacy, intrusion does not require as an essential element the publication of the information obtained, RESTATEMENT, supra note 5, § 652B, comment (a), see Pearson v. Dodd, 133 U.S.App.D.C. 279, 282, 410 F.2d 701, 704, cert. denied, 395 U.S. 947, 89 S.Ct. 2021, 23 L.Ed.2d 465 (1969); Fowler v. Southern Bell Tel. & Tel. Co., 343 F.2d 150, 152 (5th Cir. 1965); nor does the subject matter of that information necessarily control when fixing liability, Pearson, supra, 133 U.S.App.D.C. at 283, 410 F.2d at 705. In fact, the acquisition of information is not a requisite element of a § 652B cause of action. See Phillips v. Smalley Maintenance Services, Inc., 435 So.2d 705, 709 (Ala. 1983). Rather, it is the nature of the intrusion which initially fixes liability.⁷ Mindful of these principles, we...