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2011-UP-033 - Assa'ad-Faltas v. Drye

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Marie Assa'ad-Faltas, M.D., M.P.H, Appellant,

v.

Randall Gregory Drye, M.D., Respondent.


Appeal From Lexington County
James E. Lockemy, Circuit Court Judge
James W. Johnson, Jr., Circuit Court Judge


Unpublished Opinion No.  2011-UP-033
Submitted January 1, 2011 – Filed January 26, 2011


AFFIRMED


Marie Assa'ad-Faltas, pro se, of Columbia, for Appellant.

Robert Charles Brown, of Columbia, for Respondent.

PER CURIAM:  Marie Assa'ad-Faltas (Faltas) appeals from the circuit court's orders granting Randall Gregory Drye's motion to change venue, and granting in part Drye's motion to strike and motion to dismiss.  Faltas argues the circuit court erred in: (1) transferring venue from Richland County to Lexington County; (2) striking several parts of Faltas's complaint; and (3) dismissing multiple causes of action in Faltas's complaint.  We affirm.[1] 

I.  Motion to change venue[2]

Faltas argues an evaluation of the historical evidence proves jury trials are required to be held in the plaintiff's county of residence.  Additionally, Faltas maintains the venue statute as applied in her case is unconstitutional.  We disagree.   

"A motion for a change of venue is addressed to the sound discretion of the trial judge and will not be disturbed absent an abuse of discretion."  Holroyd v. Requa, 361 S.C. 43, 65, 603 S.E.2d 417, 428 (Ct. App. 2004).  "A defendant's right to be tried in the county of its residence is a substantial right."  Whaley v. CSX Transp., Inc., 362 S.C. 456, 468, 609 S.E.2d 286, 292 (2005). "When the facts concerning a defendant's residence are uncontradicted, the trial court must, as a matter of law, change venue to the county where the defendant resides."  Id. 

In the case at bar, Drye established he was a citizen and resident of Lexington County.  Accordingly, the circuit court did not abuse its discretion in granting Drye's motion to change venue to Lexington County.       Additionally, we decline to accept Faltas's contention that the venue statute is unconstitutional.  First, Faltas's claim arguing an inability to obtain a racially-neutral jury pursuant to J.E.B. v. Alabama, 511 U.S. 127 (1994) is not ripe for review because she had not yet engaged in the process of jury selection at the time of appeal.  See McClanahan v. Richland County Council, 350 S.C. 433, 441, 567 S.E.2d 240, 244 (2002) ("A justiciable controversy is a real and substantial controversy which is ripe and appropriate for judicial determination, as distinguished from a contingent, hypothetical or abstract dispute.") (quotation marks and citation omitted). Second, although Tennessee v. Lane, 541 U.S. 509 (2004) mandates fundamental access to the courts for individuals with disabilities, we reject the notion that "the higher risk of traffic accidents during longer travel" suffered by Faltas qualifies as a disability requiring remedial action.  Accordingly, the venue statute is constitutional as applied in Faltas's case.                        

II.  Motion to strike

Faltas argues the circuit court erred in striking four separate causes of action alleged in her complaint: (1) a violation of 42 U.S.C. § 1981; (2) invasion of privacy; (3) engaging in a conspiracy to defame Faltas; and (4) a violation of the Racketeer Influenced and Corrupt Organizations (RICO) act.  We disagree.

"A motion to strike, challenging a theory of recovery in the complaint, is comparable to a motion to dismiss under Rule 12(b)(6), SCRCP."  Robinson v. Code, 384 S.C. 582, 585, 682 S.E.2d 495, 496 (Ct. App. 2009).  "Where a pleading is attacked for an alleged failure to state a cause of action, the pleading must be liberally construed in favor of the pleader and sustained if the facts and reasonable inferences to be drawn therefrom entitle the pleader to relief on any theory of the case."  Id.  "A court should not strike a cause of action merely because the court doubts the plaintiff will prevail in the action."  Id.  "However, the matter of striking from a pleading is largely within the discretion of the trial judge [and] . . . will not be reversed except for an abuse of discretion or error of law."  Id.  (citations omitted).     

1.  Violation of 42 U.S.C. § 1981

We hold the circuit court correctly struck out the parts of Faltas's complaint related to 42 U.S.C. § 1981.  Here, Faltas did not plead any facts establishing that Drye had any intent to discriminate against her based on race or the existence of a contract between her and Drye.  See Eddy v. Waffle House, Inc., 335 F.Supp.2d 693, 696 (D.S.C. 2004) ("[T]o prevail under a § 1981 claim a plaintiff must prove that: (1) he or she is a member of a racial minority; (2) the defendant had an intent to discriminate on the basis of race; and (3) the discrimination concerned one or more of the activities enumerated in the statute; in this case, the making and enforcing of a contract.") (quotation marks and citations omitted).  

2.  Invasion of privacy

We hold the circuit court correctly struck out the portions of Faltas's complaint related to an invasion of privacy.  See Snakenberg v. Hartford Cas. Ins. Co., Inc., 299 S.C. 164, 170, 383 S.E.2d 2, 5 (Ct. App. 1989) ("In South Carolina, three separate and distinct causes of action can arise under the rubric of invasion of privacy: (1) wrongful appropriation of personality; (2) wrongful publicizing of private affairs; and (3) wrongful intrusion into private affairs.").  In the case at bar, Faltas did not allege Drye had wrongfully appropriated her personality when he made his complaint to the Virginia medical licensing board.  See id. at 170, 383 S.E.2d at 5-6 ("Wrongful appropriation of personality involves the intentional, unconsented use of the plaintiff's name, likeness, or identity by the defendant for his own benefit. The gist of the action is the violation of the plaintiff's exclusive right at common law to publicize and profit from his name, likeness, and other aspects of personal identity."). 

Regarding the other possible causes of action for invasion of privacy, Faltas did not plead any facts in her complaint to demonstrate Drye wrongfully publicized or intruded into her private affairs.  Drye's allegations regarding Faltas's qualifications for a medical license are not private because the information became a matter of public record after Faltas testified at Drye's trial as a medical expert.  See id. at 170-71, 383 S.E.2d at 6 ("Wrongful publicizing of private affairs involves a public disclosure of private facts about the plaintiff."); Id. at 171-72, 383 S.E.2d at 6 (holding the elements of a wrongful intrusion into private affairs are:  (1) an intrusion; (2) into that which is private; (3) which is substantial and unreasonable enough to be legally cognizable; and (4) the intrusion must be intentional).  

3.  Civil Conspiracy

We hold the circuit court correctly struck out the portions of Faltas's complaint related to a civil conspiracy.  Faltas did not plead any additional acts in furtherance of the conspiracy separate from Drye's alleged wrongful act in filing a complaint with the Virginia medical licensing board.  See Hackworth v. Greywood at Hammett, LLC, 385 S.C. 110, 115-16, 682 S.E.2d 871, 875 (Ct. App. 2009) ("In a civil conspiracy claim, one must plead additional acts in furtherance of the conspiracy separate and independent from other wrongful acts alleged in the complaint, and the failure to properly plead such acts will merit the dismissal of the claim.").  Additionally, Faltas did not specifically pray for special damages as a part of her civil conspiracy claim.  See id. at 117, 682 S.E.2d at 875 ("If a plaintiff merely repeats the damages from another claim instead of specifically listing special damages as part of their civil conspiracy claim, their conspiracy claim should be dismissed.").                

4.  Violation of RICO

We hold the circuit court correctly struck out the portions of Faltas's complaint related to a violation of RICO.  Faltas did not allege Drye committed two or more acts which established a pattern of racketeering activity.  See Gentry v. Yonce, 337 S.C. 1, 6 n.3, 522 S.E.2d 137, 139 n.3 (1999) (holding appellants are required to establish the commission of two or more predicate acts constituting a pattern of racketeering activity in order to establish a RICO violation) (quotation marks omitted). 

III.  Motion to Dismiss

"In deciding whether the circuit court properly granted the motion to dismiss under Rule 12(b)(6), SCRCP, this court must consider whether the complaint, when viewed in the light most favorable to the plaintiff, states any valid claim for relief."  Slack v. James, 356 S.C. 479, 481, 589 S.E.2d 772, 773 (Ct. App. 2003).  "A motion to dismiss should not be granted if facts alleged and inferences reasonably deducible therefrom would entitle the plaintiff to any relief on any theory of the case."  Id. at 481, 589 S.E.2d at 773-74 (quotation marks omitted). 

Faltas argues the circuit court erred in dismissing the remaining claims in her complaint that survived the circuit's court's granting of Drye's motion to strike for (1) intentional infliction of emotional distress (IIED) and (2) tortuous interference with a contract.  We disagree.

1.  IIED

We hold the circuit court correctly dismissed Faltas's cause of action for IIED.  Faltas did not plead any allegations in her complaint establishing extreme and outrageous conduct because Drye's actions in filing a complaint with the Virginia medical licensing board do not constitute conduct so extreme and outrageous to exceed all possible bounds of decency.  See Bergstrom v. Palmetto Health Alliance, 358 S.C. 388, 401, 596 S.E.2d 42, 48 (2004) (stating a plaintiff must show the conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious and utterly intolerable in a civilized community in order to establish a claim for intentional infliction of emotional distress); Hainer v. Am. Med. Int'l, Inc., 320 S.C. 316, 324, 465 S.E.2d 112, 117 (Ct. App. 1995) ("[T]he mere reporting of an individual to a licensing board, as mandated by the [s]tate, is not conduct so extreme and outrageous that no reasonable person could be expected to endure it.") (quotation marks omitted).     

2.  Tortious interference with a contract

We hold the circuit court correctly dismissed Faltas's cause of action for tortious interference with a contract.  Faltas did not allege any facts in her complaint about the existence of a contract between her and a third party.  See Vortex Sports & Entm't, Inc. v. Ware, 378 S.C. 197, 205, 662 S.E.2d 444, 449 (2008) ("The elements of a cause of action for tortious interference with contract are: (1) existence of a valid contract; (2) the wrongdoer's knowledge thereof; (3) his intentional procurement of its breach; (4) the absence of justification; and (5) resulting damages.").  Accordingly, the circuit court did not err in granting in part Drye's motion to dismiss.    

AFFIRMED.

THOMAS, PIEPER, and GEATHERS, JJ., concur.


[1]  We decide this case without oral argument pursuant to Rule 215, SCACR.

[2]  This court may consider the order changing venue in the present case.  Ordinarily, an order changing venue is not immediately appealable.  Breland v. Love Chevrolet Olds, Inc., 339 S.C. 89, 93-94, 529 S.E.2d 11, 13-14 (2000).  However, an appellate court may consider orders that are not directly appealable when there are appealable issues before the court and a ruling on appeal will avoid unnecessary litigation.  Ferguson v. Charleston Lincoln Mercury, Inc., 349 S.C. 558, 565, 564 S.E.2d 94, 98 (2002).  Here, Faltas appealed two other appealable orders concurrently with her appeal of the order changing venue.