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Unpublished Opinion No.  2011-UP-033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.