Ayles v. Allen
| Docket Number: | 2004-CA-00841-SCT Linked Case(s): 2004-CA-00841-SCT2004-CA-00841-SCT |
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| Supreme Court: |
Opinion Date: 06-02-2005 Opinion Author: Dickinson, J. Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Abuse of process - M.R.C.P. 45(d)(2)(A) - M.R.C.P. 5(b) - M.R.C.P. 26(b)(1) - Invasion of privacy Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Carlson and Randolph, JJ., Non Participating Judge(s): Diaz, J., Dissenting Author : Easley, J., Concurs in Result Only: Graves, J., Procedural History: Summary Judgment Nature of the Case: Abuse of Process and Invasion of Privacy |
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| Trial Court: |
Date of Trial Judgment: 04-17-2004 Appealed from: Coahoma County Circuit Court Judge: Gray Evans Disposition: The circuit court granted summary judgment for the attorney and his client. |
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| Note: | Nature of Case - an action against an attorney and his client for abuse of process and invasion of privacy. | |
| Party Name: | Attorney Name: | |||
| Appellant: | KASSEY RAY AYLES, A MINOR, BY AND
THROUGH HER MOTHER AND NEXT FRIEND,
LESLEY MELTON ALLEN |
ROY O. PARKER, JR. |
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| Appellee: | COLEMAN MADDOX ALLEN, III AND M. LEE GRAVES | MARY ANN SAWYER PETERSON |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Abuse of process - M.R.C.P. 45(d)(2)(A) - M.R.C.P. 5(b) - M.R.C.P. 26(b)(1) - Invasion of privacy |
| Summary of the Facts: | Lesley Allen and Coleman Allen III were divorced, and Lesley was granted custody of the couple’s son. Coleman later filed a petition for a change of custody and attorney M. Lee Graves represented Coleman in the custody dispute. During the custody contest, Coleman, through Graves, served a subpoena duces tecum on the school of Lesley’s daughter by a former marriage, Kassey Ayles, demanding the production of her daughter’s school records. The school produced the records to Graves’s secretary immediately upon receipt of the subpoena. The following Monday, Graves mailed notice of the subpoena duces tecum to Lesley’s attorney, Bill Luckett. Ayles, by and through her mother, filed a suit against Coleman and Graves for abuse of process and invasion of privacy. Coleman and Graves filed a Motion to Dismiss/Motion for Summary Judgment. The court granted judgment as a matter of law in favor Graves and Coleman. Ayles appeals. |
| Summary of Opinion Analysis: | Issue 1: Abuse of process The elements of abuse of process are that the party made an illegal use of a legal process, the party had an ulterior motive, and damage resulted from the perverted use of process. Ayles argues that Graves did not immediately serve a copy of the subpoena upon Lesley prior to issuing the subpoena on the school which was a violation of M.R.C.P. 45(d)(2)(A). The comment to the rule provides that the service upon the other parties must be made in accordance with Rule 5. Service under Rule 5 is accomplished by placing the notice in the mail. Had Graves strictly complied with the requirement to immediately serve a copy of the subpoena by placing it in the mail on Friday, the notice still would not have been delivered until after the production, since the records were produced immediately. Graves served the subpoena on Friday and immediately obtained the records. Since he already had the records, his decision of whether to mail notice that same day or on the following Monday could not have been motivated by a desire to gain any advantage. Furthermore, whether Graves’s notice constituted immediate service under Rule 45 does not determine whether the subpoena process was illegally used, which is what the law requires to satisfy the elements of abuse of process. Ayles also argues that Graves was required to hand-deliver the notice to Luckett under M.R.C.P. 5(b). However, service is allowed by mail under the plain language of M.R.C.P. 5(b). Ayles also argues that Graves illegally used the subpoena process because her school records were privileged and therefore outside the scope of discovery under M.R.C.P. 26(b)(1). However, Ayles fails to explain how the school records constitute a privileged matter under Rule 26. Issue 2: Invasion of privacy Ayles argues that, that by handing her school records over to Graves and his secretary, the subpoena effectively disclosed her school records to the public and her privacy was invaded. For purposes of this tort, publicity means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. Upon receiving Ayles’s school records, Graves placed them in a file and did not disclose them to his client or the court. Further, he never sought to introduce them in any proceeding and did not discuss them during settlement negotiations. Ayles has not presented any evidence that Graves publicized her school records. |
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