UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLES J. PREZIOSO,
Plaintiff-Appellee,

v.                                                                     No. 99-1675

CALHOUN THOMAS, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Solomon Blatt, Jr., Senior District Judge.
(CA-97-1341-9-8)

Argued: March 3, 2000

Decided: April 25, 2000

Before WILKINS, NIEMEYER, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed in part and certified in part to the South Carolina Supreme
Court by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: William Andrew Gowder, Jr., Andrew Kenneth Epting,
Jr., PRATT-THOMAS, PEARCE, EPTING & WALKER, P.A.,
Charleston, South Carolina, for Appellant. V.M. Manning Smith,
MOSS & KUHN, Beaufort, South Carolina, for Appellee. ON
BRIEF: Brian L. Boger, LAW OFFICES OF BRIAN BOGER,
Columbia, South Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Calhoun Thomas, Jr. appeals a district court judgment for compen-
satory and punitive damages in favor of Charles J. Prezioso in Prezio-
so's action for intentional infliction of emotional distress. Thomas,
who died during the course of this suit,1 contends that the evidence
was insufficient to justify a verdict for Prezioso and that the district
court erred in awarding punitive damages against Thomas' estate
because South Carolina law does not allow for an award of punitive
damages against a deceased tortfeasor's estate. We affirm the award
of compensatory damages and certify the punitive damages question
to the South Carolina Supreme Court.

I.

Viewed in the light most favorable to Prezioso, the evidence was
as follows. Prezioso and Grandee Hardy became romantically
involved in March 1994. During the next several months, the two
developed a serious relationship and intended to marry on November
7. In late September 1994, Thomas sent Prezioso an anonymous let-
ter. The envelope containing the letter also contained explicit photo-
graphs of Hardy engaged in sexual acts with an unidentified man. The
letter demanded money and threatened that the sender would send the
photos to other people unless he received the money. When Prezioso
saw one of the photographs, he "[w]ent into shock," immediately
went to the restroom, and vomited. J.A. 61. He was embarrassed,
humiliated, and greatly concerned about who else might have
received copies of the photographs of his fiancee. Shortly thereafter,
Prezioso and Hardy postponed their wedding and sought assistance
from law enforcement. In late November, Prezioso received another
_________________________________________________________________
1 This appeal is being pursued by Thomas' estate. For ease of reference,
we refer to the judgment as having been appealed by Thomas.

                    2
anonymous letter from Thomas in which Thomas described a sex act
that he claimed Hardy had performed. In the letter, Thomas demanded
$5,000 in exchange for the sexually explicit photos of Hardy that he
possessed.

Despite the disruption that Thomas' letters caused in Prezioso and
Hardy's relationship, the two were married in August 1995.2 The
effects of Thomas' conduct lingered, however, causing significant
discord between Prezioso and Hardy. Their marriage was a volatile
one, marred by several violent disputes, and by May 1996 they had
filed cross-suits for divorce. Although they reconciled later that year,
at the time of trial they were separated, Hardy having sued Prezioso
for divorce once again.

Prezioso filed this suit in South Carolina state court in January
1995 seeking actual and punitive damages against Thomas for inten-
tional infliction of emotional distress and invasion of privacy. There-
after, Thomas filed for bankruptcy under Chapter 11, resulting in the
stay of any act to recover a claim against Thomas that arose prior to
filing. See 11 U.S.C.A. § 362(a)(6) (West 1993 & Supp. 1999). Prez-
ioso filed a proof of claim for $500,000 based on the allegations made
in his complaint in the state court action. See id. § 501 (West 1993).
He also filed a motion for relief from the automatic stay so that he
could continue to prosecute his action. See id. § 362(f) (West 1993).
His motion was granted, and the action subsequently was removed to
United States District Court. See 28 U.S.C.A. § 1452(a) (West 1994);
id. § 1334(b) (West 1993). Thomas died on April 17, 1997, and the
personal representative of his estate continued the defense of this
action.

At the outset of the bench trial that followed, the district court
granted summary judgment to Thomas on the invasion of privacy
claim and the action proceeded on the intentional infliction of emo-
tional distress claim. Following the trial, on March 3, 1999, the dis-
trict court awarded Prezioso $300,000 compensatory damages and
$125,000 punitive damages.
_________________________________________________________________
2 Hardy took Prezioso's name when she married him, but for ease of
reference, we refer to her as "Hardy" throughout this opinion.

                     3
II.

Thomas first challenges the finding of liability by the district court,
maintaining that the evidence was insufficient to warrant a verdict in
favor of Prezioso. South Carolina has adopted the liability rule stated
in Restatement (Second) of Torts § 46(1) (1965), relating to inten-
tional infliction of emotional distress, which states in relevant part
that "[o]ne who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another is subject to lia-
bility for such emotional distress." See Ford v. Hutson, 276 S.E.2d
776, 778 (S.C. 1981). To give rise to a cause of action, the defen-
dant's conduct must be "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," and the distress inflicted
must be so severe "that no reasonable man could be expected to
endure it." Id. (internal quotation marks omitted). Whether a defen-
dant's conduct is sufficiently extreme and outrageous, and whether
the emotional distress suffered is sufficiently severe to justify imposi-
tion of liability, are questions for the factfinder if reasonable minds
could disagree. See Andrews v. Piedmont Air Lines, 377 S.E.2d 127,
129 (S.C. Ct. App. 1989) (per curiam); Restatement (Second) of Torts
§ 46 cmt. j. On appeal from a bench trial, we review the findings of
fact made by the district court for clear error and its legal conclusions
de novo. See Williams v. Sandman, 187 F.3d 379, 381 (4th Cir. 1999).

Thomas contends that his actions were not outrageous as a matter
of law because Prezioso was abusive to Hardy during their marriage,
made an anonymous threatening telephone call to Thomas prior to
ever receiving the photographs, threatened Hardy that he would show
Thomas' sexually explicit pictures of Hardy to her daughter, and fil-
med himself having sex with Hardy during their marriage and threat-
ened Hardy that he would show the resulting videotape to other
people. We disagree. We note that Prezioso in his testimony disputed
all of these allegations other than the claim that he placed the anony-
mous threatening telephone call, which he claimed he did because
Thomas had been "harassing" Hardy. J.A. 78. In any event, Thomas'
allegations, even if true, would not preclude a determination by a rea-
sonable factfinder that Thomas' subjecting Prezioso to pictures of his
fiancee performing sex acts on another man and blackmailing Prez-

                    4
ioso with the photographs were sufficiently extreme and outrageous
to justify recovery. See Ford, 276 S.E.2d at 778.

Thomas next argues that his conduct was not sufficiently outra-
geous to justify liability against him for intentional infliction of emo-
tional distress because "Prezioso had no right`not to know'" about
Hardy's prior sexual activity and her posing for the photos. Brief of
Appellant at 23. To the extent that Thomas maintains that the nonex-
istence of this "right not to know" demonstrates that Thomas' conduct
was not sufficiently extreme and outrageous to justify the imposition
of liability, we disagree. The outrageousness of Thomas' conduct lay
not in the fact that Thomas revealed to Prezioso that Hardy had had
sexual relations and posed for sexually explicit photos at some point
in the past, but in his causing Prezioso actually to view photographs
of his fiancee engaged in those sex acts with another man and his
threatening to show the sexually explicit pictures to others.

Thomas next maintains that the evidence of his liability was insuf-
ficient because the only reasonable inference to be drawn from the
record regarding his intent was that by his conduct he intended to
harm only Hardy, not Prezioso. However, even assuming arguendo
that Thomas is correct that that was the only reasonable inference to
be drawn from the record, a plaintiff need not prove the infliction of
emotional distress was intentional; mere recklessness is sufficient. See
Ford, 276 S.E.2d at 778.

Finally, Thomas contends that the evidence was insufficient to jus-
tify a verdict for Prezioso because Prezioso failed to demonstrate that
Thomas caused him to suffer emotional distress of such magnitude
that no reasonable person could be expected to endure it. When
viewed in the light most favorable to Prezioso, however, the evidence
demonstrated that Thomas' conduct "devastated" Prezioso, causing
him to postpone his wedding, and eventually "ruin[ing]" his relation-
ship with Hardy once the two were married. J.A. 69, 74. We conclude
that reasonable minds could disagree concerning whether the level of
anguish suffered by Prezioso was sufficiently severe to sustain the
cause of action. We therefore must affirm the factual finding of the
district court on this point.

                     5
III.

Thomas next argues that the district court erred in awarding puni-
tive damages against the estate of a deceased defendant, contending
that the central purpose behind a punitive damage award in South
Carolina--which Thomas argues is punishing the tortfeasor and deter-
ring him from committing similar acts in the future--cannot be served
once the tortfeasor is dead. Prezioso, on the other hand, maintains that
South Carolina's wrongful death and survival statutes provide for
recovery of punitive damages from a deceased tortfeasor's estate. See
S.C. Code Ann. §§ 15-5-90, 15 51-10, 15-51-40 (Law. Co-op. 1976
& Supp. 1999). Prezioso also contends that punitive damage awards
serve broader purposes in South Carolina than Thomas suggests and
that some of those purposes would be advanced by allowing punitive
damage awards against a deceased tortfeasor's estate. See Clark v.
Cantrell, No. 25088, 2000 WL 282457, at *3 (S.C. Mar. 13, 2000)
(identifying deterrence of similar future conduct by people other than
the defendant and "compensation for the reckless or willful invasion
of the plaintiff's private rights" as "important purposes" of punitive
damages). The issue Thomas raises is one of first impression in South
Carolina and one as to which there is no controlling authority.
Accordingly, we certify to the South Carolina Supreme Court the fol-
lowing question: "In an action for intentional infliction of emotional
distress, may punitive damages be awarded against the estate of a
deceased tortfeasor?" See S.C. App. Ct. R. 228.

IV.

In sum, because the evidence in the record was sufficient to support
an award of compensatory damages on Prezioso's claim for inten-
tional infliction of emotional distress, we affirm that award. However,
we certify to the South Carolina Supreme Court the question of
whether punitive damages may be awarded against the estate

                    6
of a deceased tortfeasor in an action for intentional infliction of emo-
tional distress.3

AFFIRMED IN PART AND CERTIFIED IN PART
TO THE SOUTH CAROLINA SUPREME COURT
_________________________________________________________________
3 Thomas has moved to supplement the joint appendix. His motion is
granted.

                     7
