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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
LUDOVICUS N. KEYZER, a/k/a LUDO KEYZER, JOSEPH KINTZ, ROBIN
KINTZ, CARL W. PARKER III, and BARRY NAKELL, Plaintiffs, v.
AMERLINK, LTD., RICHARD SPOOR, DEBORAH N. MEYER, JOHN MEUSER,
MEYER & MEUSER, P.A., AMERICAN DETECTIVE SERVICES, INC., and
KENNETH J. JOHNSON, Defendants
Filed: 20 September 2005
1. Privacy_invasion of_asking about prior settlement_testing confidentiality agreement
Plaintiffs did not articulate how their personal affairs or private concerns were intruded
upon by defendants posing as potential clients or interviewing a former client to test compliance
with a confidentiality clause in a settlement agreement. The trial court correctly dismissed or
granted summary judgment on invasion of privacy claims.
2. Trespass_private detectives posing as potential legal clients_consent to enter
The trial court did not err by granting summary judgment for defendants on a civil
trespass claim where defendants sent private investigators posing as potential clients to plaintiff
attorney's law office, which was also his home, to ask about a prior suit which had been settled
with a confidentiality agreement. Although plaintiff contended that defendants'
misrepresentation of their identities rendered any consent void, the entry complained of was not
of the kind that interfered with plaintiff's ownership or possession of the land.
Judge TYSON concurring in part and dissenting in part.
Appeal by plaintiffs from orders entered 22 September 2003, 30
January 2004, 22 March 2004, and 12 April 2004 by Judge John R.
Jolly, Jr., in Orange County Superior Court. Heard in the Court of
Appeals 9 May 2005.
Barry Nakell for plaintiffs-appellants.
Anderson, Johnson, Lawrence, Butler & Bock, L.L.P., by Steven
C. Lawrence, for defendants-appellees Amerlink, Ltd. and
Cranfill, Sumner & Hartzog, L.L.P., by Richard T. Boyette,
Alicia S. Levy, and Meredith T. Black, for defendants-
appellees Deborah N. Meyer, John Meuser, and Meyer & Meuser,
Nexsen Pruet Adams Kleemeier, PLLC, by Patrick D. Sarsfield,
II, for defendants-appellees American Detective Services,
Inc., and Kenneth J. Johnson.
Plaintiffs appeal from orders dismissing their claims against
defendants for invasion of privacy, trespass, unfair or deceptive
trade practices, and punitive damages. We affirm.
Preliminarily, we note that this is a companion case to Keyzer
v. Amerlink, 172 N.C. App. 592, __ S.E.2d __ (filed 16 August
2005). The facts of the instant case are summarized, in pertinent
part, as follows: Ludovicus Keyzer (Keyzer), a Dutch citizen
residing in the Netherlands, purchased a log home kit from
Amerlink, Ltd. (Amerlink), a corporation that does business in
North Carolina selling log home kits. In February 1999 Keyzer
filed suit against Amerlink, asserting claims arising from the log
home package sale. Amerlink was represented in this lawsuit by
defendants Meyer, Meuser, and Meyer & Meuser, P.A. On 12 September
2001 the parties reached a settlement agreement, which provided in
relevant part that: (1) defendants would make two payments to
plaintiff totaling $200,000; (2) plaintiff would release defendants
from liability on all claims arising from the log home sale; and
(3) neither party would reveal the terms of the settlement
contract. Defendants Amerlink and Spoor subsequently employed
defendants American Detective Services, Inc. (American Detective)
and Kenneth Johnson (Johnson) to conduct certain investigations of
plaintiffs Barry Nakell (Nakell) and Keyzer, in order to ascertain
their compliance with the settlement contract's confidentiality
clause. The present appeal arises from a lawsuit initiated 11 April
2003 by plaintiffs (Keyzer, Joseph and Robin Kintz, Carl Parker,
III, and Barry Nakell). Plaintiffs filed suit against defendants
(Amerlink, Richard Spoor, Deborah Meyer, John Meuser, Meyer &
Meuser, P.A., American Detective Services, Inc., and Kenneth
Johnson), seeking compensatory and punitive damages for invasion of
privacy, civil trespass, and unfair or deceptive trade practices.
Plaintiffs alleged that defendants' conduct during their
investigation of Nakell and Keyzer, and specifically their
interviews of Nakell and Keyzer, had given rise to these claims.
By their answers, defendants denied the material allegations of the
complaint. Defendants also moved for dismissal of plaintiffs'
claims under N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2003), and for
summary judgment under N.C. Gen. Stat. § 1A-1, Rule 56 (2003). In
response to the parties' motions, the trial court entered several
orders, including the following:
Order of 22 September 2003: Dismissal, per
Rule 12(b)(6), of all claims by all
plaintiffs, brought against Meyer, Meuser, and
Meyer & Meuser, P.A. for trespass and punitive
damages, and dismissal of claims for invasion
of privacy brought by all plaintiffs, with the
exception of Keyzer's privacy claim.
Order of 30 January 2004: Summary judgment
entered in favor of defendants Meyer, Meuser,
and Meyer & Meuser, P.A., on Keyzer's claim
for invasion of privacy.
Order of 22 March 2004: Summary judgment
entered in favor of American Detective and
Johnson, on all of plaintiffs' claims.
Order of 12 April 2004: Summary judgment
entered in favor of Amerlink and Spoor on all
of plaintiffs' claims.
Plaintiffs timely appealed from the above orders.
Standard of Review
Plaintiffs appeal from the trial court's dismissal of certain
claims under Rule 12(b)(6), and from the court's award of summary
judgment in favor of defendants on other claims. Accordingly, we
first review the pertinent standards of review.
The standard of review of a court's dismissal under Rule
12(b)(6) is well established: The question before a court
considering a motion to dismiss for failure to state a claim is
whether, if all the plaintiff's allegations are taken as true, the
plaintiff is entitled to recover under some legal theory. Toomer
v. Garrett, 155 N.C. App. 462, 468, 574 S.E.2d 76, 83 (2002).
Dismissal under Rule 12(b)(6) is proper (1) when the complaint on
its face reveals that no law supports plaintiff's claim; (2) when
the complaint reveals on its face the absence of fact sufficient to
make a good claim; [or] (2) when some fact disclosed in the claim
necessarily defeats plaintiff's claim. Oates v. JAG, Inc., 314
N.C. 276, 278, 333 S.E.2d 222, 224 (1979). In addition, because
this appeal is based on [defendant's] motion to dismiss, we must
treat plaintiff's factual allegations as true. Lovelace v. City
of Shelby, 351 N.C. 458, 459, 526 S.E.2d 652, 654 (2000) (citation
Regarding summary judgment orders, Rule 56(c) provides that
summary judgment shall be rendered forthwith if the pleadings,depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to a
judgment as a matter of law. On a motion for summary judgment,
[t]he party moving for summary judgment ultimately has the burden
of establishing the lack of any triable issue of fact[.] Pembee
Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d
350, 353 (1985). 'The movant may meet this burden by proving that
an essential element of the opposing party's claim is nonexistent,
or by showing through discovery that the opposing party cannot
produce evidence to support an essential element of his claim or
cannot surmount an affirmative defense which would bar the claim.'
Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414
S.E.2d 339, 342 (1992) (quoting Collingwood v. G.E. Real Estate
Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)).
However, for defendants to prevail on their motion for
summary judgment, they [do] not need to negate every element of
[plaintiff's claim]. 'If defendant effectively refutes even one
element, summary judgment is proper.' RD&J Props. v.
Lauralea-Dilton Enters., LLC, 165 N.C. App. 737, 745, 600 S.E.2d
492, 498 (2004) (quoting Ramsey v. Keever's Used Cars, 92 N.C. App.
187, 190, 374 S.E.2d 135, 137 (1988)). Further, the nonmoving
party may not rely on the mere allegations and denials in his
pleadings but must by affidavit, or other means provided in the
Rules, set forth specific facts showing a genuine issue of fact for
the jury; otherwise, 'summary judgment, if appropriate, shall beentered against [the nonmoving party].' In re Will of McCauley,
356 N.C. 91, 100-01, 565 S.E.2d 88, 95 (2002) (quoting Rule 56(e)).
Invasion of Privacy
 Plaintiffs brought claims of invasion of privacy against
defendants, on the theory of intrusion into each plaintiff's
seclusion, solitude, or private affairs. Plaintiffs appeal from
orders by the trial court that (1) dismissed, under Rule 12(b)(6),
all claims of invasion of privacy brought against Meyer, Meuser,
and Meyer & Meuser, P.A., except for the claim brought by Keyzer;
(2) granted summary judgment for Meyer, Meuser, and Meyer & Meuser,
P.A. on Keyzer's invasion of privacy claim; and (3) granted summary
judgment for Amerlink, Spoor, American Detective, and Johnson, on
all claims against them for invasion of privacy. Plaintiffs argue
that their complaint sufficiently states a claim for relief against
Meyer, Meuser, and Meyer & Meuser, P.A., and that the evidence
demonstrated a genuine issue of material fact regarding the
invasion of privacy claims, both against the other defendants and
on Keyzer's claim against Meyer, Meuser, and Meyer & Meuser, P.A.
The tort of invasion of privacy by intrusion
into seclusion has been recognized in North
Carolina and is defined as the intentional
intrusion 'physically or otherwise, upon the
solitude or seclusion of another or his
private affairs or concerns . . . [where] the
intrusion would be highly offensive to a
reasonable person.' The kinds of intrusions
that have been recognized under this tort
include 'physically invading a person's home
or other private place, eavesdropping by
wiretapping or microphones, peering throughwindows, persistent telephoning, unauthorized
prying into a bank account, and opening
personal mail of another.'
Toomer, 155 N.C. App. at 479-80, 574 S.E.2d at 90 (quoting Miller
v. Brooks, 123 N.C. App. 20, 26, 472 S.E.2d 350, 354 (1996), and
Hall v. Post, 85 N.C. App. 610, 615, 355 S.E.2d 819, 823 (1987),
rev'd on other grounds, 323 N.C. 259, 372 S.E.2d 711 (1988)).
Thus, [g]enerally, there must be a physical or sensory intrusion
or an unauthorized prying into confidential personal records to
support a claim for invasion of privacy by intrusion. Broughton
v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 29, 588 S.E.2d 20,
27 (2003) (citing Burgess v. Busby, 142 N.C. App. 393, 544 S.E.2d
In the instant case, plaintiffs' claims of invasion of privacy
are primarily based on their allegations that: (1) plaintiffs
Keyzer, Mr. and Mrs. Kintz, and Parker were represented by
plaintiff Nakell in their respective litigations with defendant
Amerlink; (2) defendants acted in concert to conduct an interview
with Nakell in his law office, located in the same building as his
residence; (3) during the Nakel interview, defendant-investigator
Johnson posed as a disgruntled Amerlink customer and as a potential
legal client of Nakell's; (4) defendants tape-recorded the
interview with Nakell without his knowledge; (5) defendants also
hired investigators to interview Keyzer at his flower shop in The
Netherlands; (6) during these interviews, the investigators asked
questions relevant to the litigation between Keyzer and Amerlink,
and to the settlement agreement executed by the parties, withoutrevealing their connection to defendants; (7) defendants'
investigation of plaintiffs' compliance with the confidentiality
clause had no legitimate purpose and was based on improper motives;
and (8) defendants Meyer, Meuser, and Meyer & Meuser, P.A. acted in
violation of the North Carolina Rules of Professional Conduct.
However, plaintiffs fail to articulate how these allegations,
if true, constitute evidence that any of their personal affairs or
private concerns were intruded upon. Moreover, none of the
plaintiffs produced any evidence, by affidavit or otherwise, that
defendants had investigated their personal affairs; had spied on,
observed, or otherwise obtained any information about their private
concerns; had actually obtained any information protected by the
attorney-client privilege; had entered personal, non-commercial,
areas of any of their houses; or had in any other way involved
themselves in any of the plaintiffs' private or personal lives.
As regards defendants Meyer, Meuser, and Meyer & Meuser, P.A.,
we conclude that plaintiffs' complaint fails to state a claim for
relief for invasion of privacy committed against plaintiffs Nakell,
Mr. and Mrs. Kintz, or Parker. Accordingly, the trial court did
not err by dismissing plaintiffs' complaints under Rule 12(b)(6).
We further conclude that the court did not err by granting summary
judgment for Meyer, Meuser, and Meyer & Meuser, P.A. on plaintiff
Keyzer's claim for invasion of privacy. We note that the parties
have presented arguments on whether to apply the law of North
Carolina or of the Netherlands to Keyzer's claim, and we conclude
that the result is the same either way. We also conclude that thetrial court did not err by granting summary judgment for the other
defendants on plaintiffs' claims for invasion of privacy. This
assignment of error is overruled.
 Plaintiff Nakell argues that the trial court erred by
granting summary judgment in favor of defendants on his claim of
civil trespass. We disagree.
The elements of trespass to real property are: (1) possession
of the property by the plaintiff when the alleged trespass was
committed; (2) an unauthorized entry by the defendant; and (3)
damage to the plaintiff from the trespass. Broughton
, 161 N.C.
App. at 32, 588 S.E.2d at 29 (citing Kuykendall v. Turner
, 61 N.C.
App. 638, 642, 301 S.E.2d 715, 718 (1983)).
In the instant case, plaintiff argues that defendants' entry
onto his property was unauthorized, and thus was a trespass. The
evidence shows that Johnson and another investigator met with
plaintiff in his law office after making an appointment by posing
as prospective clients. Plaintiff contends that defendants'
misrepresentation of their identities and purpose for visiting
rendered any consent void ab initio
. In support of this
proposition, plaintiff cites Blackwood v. Cates
, 297 N.C. 163, 254
S.E.2d 7 (1979); Miller v. Brooks,
123 N.C. App. 20, 472 S.E.2d 350
(1996); and Food Lion, Inc. v. Capital Cities/ABC, Inc.
, 194 F.3d
505, 517 (4th Cir. 1999). However, these cases do not support
plaintiff's contention under the facts of the instant case.
merely stand for the proposition that aparty's consent to another's entry onto his land does not insulate
against liability for trespass when the other commits subsequent
wrongful acts in excess or abuse of his authority to enter, not a
rule that a misrepresentation of identify invalidates the
consent of the party to whom the misrepresentation was made.
Likewise, Food Lion
, noted that consent gained by
misrepresentation is sometimes sufficient as a defense to a claim
of trespass, did not hold in accord with plaintiff's position, and
further bolsters the conclusion that the individual facts of a case
determine whether consent given pursuant to a misrepresentation of
identify is valid as a defense to a claim of trespass.
We observe further that Food Lion
adopted in large measure the
reasoning of another case, J.H. Desnick v. American Broadcasting
, 44 F.3d 1345 (7th Cir. 1995), stating that [w]e
thoughtful analysis about when a consent to enter
that is based on misrepresentation may be given effect. Food
We also find the analysis in Desnick
useful. The case
dealt with reporters who posed as patients of a medical practice in
order to obtain information about its procedures, and analyzed the
consent issue in light of the aim of the tort of the trespass to
protect the inviolability of a person's property. The Court held:
There was no invasion in the present case of
any of the specific interests that the tort of
trespass seeks to protect. . . . [T]he
defendants' test patients gained entry into
the plaintiffs' premises by misrepresenting
their purposes[.] . . . But the entry [did]
not . . . infring[e on] the kind of interest
of the plaintiffs that the law of trespass
protects; it was not an interference with the
ownership or possession of land.
44 F.3d at 1352, 1353. Although not binding on this
Court, we find the reasoning of Desnick
persuasive. Moreover, this
Court took a similar approach in Broughton.
In that case, the
defendant, a newspaper reporter, obtained permission to enter onto
plaintiff's property by misrepresenting the visit as a social
call. The defendant later published a newspaper article that
included information gathered during this visit. This Court held
that [p]laintiff has not shown or alleged that [defendant's] entry
onto her land was unauthorized. To the contrary, the evidence was
that plaintiff engaged in 'social' conversation with [defendant]
and did not ask her to leave the property. Thus, the trial court
properly granted summary judgment for defendants . . . on the
trespass claim. Applying the reasoning of Broughton
instant case, we hold that the trial court properly granted summary
judgment for defendants on plaintiff's claim of trespass. Under
these facts, the entry complained of was not of the kind that
interfered with plaintiff's ownership or possession of the land;
therefore, plaintiff has failed to raise a genuine issue of
material fact that defendants made an unauthorized entry of the
kind to support the tort of trespass. This assignment of error is
We have examined plaintiffs' remaining arguments and find them
to be without merit. We conclude the trial court did not err by
dismissing plaintiffs' claims, and that the court's order should be
Chief Judge MARTIN concurs. Judge TYSON concurs in part and dissents in part.
TYSON, Judge concurring in part, dissenting in part.
I concur to affirm the dismissal of plaintiffs' invasion of
privacy claim. The dismissal of plaintiffs' civil trespass claim
and consequently, their unfair or deceptive practices and punitive
damages claims should be reversed. I respectfully dissent.
I. Civil Trespass
The majority's opinion holds defendants did not make an
'unauthorized entry' of the kind to support the tort of trespass
because the entry complained of was not of the kind that
interfered with plaintiffs' ownership or possession of the land.
In the bundle of rights that define private property, the
greatest stick in the bundle is exclusivity of possession.
Exclusivity of possession is the basis that permits the landowner
to exclude anyone from his or her property. Hildebrand v.
Telegraph Co., 219 N.C. 402, 408, 14 S.E.2d 252, 256 (1941) (The
word 'property' extends to every aspect of right and interest
capable of being enjoyed as such upon which it is practicable to
place a money value. The term comprehends not only the thing
possessed but also, in strict legal parlance, means the right of
the owner to the land; the right to possess, use, enjoy and dispose
of it, and the corresponding right to exclude others from its
use.). This exclusivity of possession is the basis for civil and
criminal trespass. Id. The elements of trespass to real property are: (1)
possession of the property by the plaintiff when the alleged
trespass was committed; (2) an unauthorized entry by the defendant;
and (3) damage to the plaintiff from the trespass. Broughton v.
McClatchy Newspapers, Inc., 161 N.C. App. 20, 32, 588 S.E.2d 20, 29
(2003) (citing Kuykendall v. Turner, 61 N.C. App. 638, 642, 301
S.E.2d 715, 718 (1983)). Consent is defined as an [a]greement,
approval, or permission as to some act or purpose, esp. given
voluntarily by a competent person . . . . Black's Law Dictionary
(8th ed. 2004). Consent to a trespass which is obtained as the
result of duress, fraud, or mistake is ineffective to establish a
defense to an action for trespass to land. William S. Haynes,
North Carolina Tort Law § 28-5 (1989).
Prior precedents have addressed the issue of whether obtaining
consent to enter property obtained by fraud revokes consent, and
the entry on another's property becomes unauthorized in a civil
trespass case. Our Supreme Court has held consent to enter the
lands of another is conditional, not absolute, and can be revoked
by subsequent acts or be void ab initio. One who enters upon the
land of another with the consent of the possessor may, by his
subsequent wrongful act in excess or abuse of his authority to
enter, become liable in damages as a trespasser. Blackwood v.
Cates, 297 N.C. 163, 167, 254 S.E.2d 7, 9 (1979) (defendants did
not engage in a voluntary act to invalidate their perceived consent
to be on the plaintiffs' property) (quoting Smith v. VonCannon, 283
N.C. 656, 660, 197 S.E.2d 524, 528 (1973)). In Smith, our SupremeCourt held, [w]e perceive no basis for a distinction between an
involuntary intrusion upon the land of another and an involuntary
exceeding of the landowner's assent to the original entry . . . .
283 N.C. at 661, 197 S.E.2d at 528.
The majority's opinion asserts Broughton v. McClatchy
Newspapers, Inc., controls its result here. 161 N.C. App. 20, 588
S.E.2d 20 (2003). In Broughton, the plaintiff alleged the reporter
misrepresented the purpose of a visit, stating her visit to
plaintiff's home was a social call when in fact, the visit was to
gather intelligence for a subsequent negative article about the
plaintiff and her divorce. Id. at 32, 588 S.E.2d at 29. This
Court held the plaintiff failed to show or allege the reporter was
an unauthorized trespasser when the plaintiff engaged in social
conversation on the front porch of her home, and plaintiff did not
ask the reporter to leave her property. Id. at 33, 588 S.E.2d at
29. Here, plaintiffs alleged in their complaint defendant's entry
was unauthorized. As N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003)
provides, summary judgment shall be rendered if there is no
genuine issue as to any material fact and that any party is
entitled to a judgment as a matter of law. The issue of consent
is a question for the jury.
The majority's opinion further cites Food Lion, Inc. v.
Capital Cities/ABC, Inc., as persuasive authority to support its
notion that consent procured by fraud is not void or voidable. 194
F.3d 505, 517 (4th Cir. 1999) (adopting the Seventh Circuit'sreasoning in Desnick v. American Broadcasting Companies, Inc., 44
F.3d 1345 (1995)).
The Fourth Circuit recognized:
the various jurisdictions and authorities in
this country are not of one mind in dealing
with the issue. Compare Restatement (Second)
of Torts, § 892B(2) (1965) (if the person
consenting to the conduct of another . . . is
induced [to consent] by the other's
misrepresentation, the consent is not
effective for the unexpected invasion or
harm) and Shiffman v. Empire Blue Cross and
Blue Shield, 256 A.D.2d 131, 681 N.Y.S.2d 511,
512 (App. Div. 1998) (reporter who gained
entry to medical office by posing as potential
patient using false identification and
insurance cards could not assert consent as
defense to trespass claim since consent
obtained by misrepresentation or fraud is
invalid), with Desnick, 44 F.3d at 1351-53
(ABC agents with concealed cameras who
obtained consent to enter an ophthalmic clinic
by pretending to be patients were not
trespassers because, among other things, they
entered offices open to anyone); Baugh v.
CBS, Inc., 828 F. Supp. 745, 757 (N.D. Cal.
1993) (where consent was fraudulently
induced, but consent was nonetheless given,
plaintiff has no claim for trespass); and
Martin v. Fidelity & Cas. Co. of New York, 421
So.2d 109, 111 (Ala. 1982) (consent to enter
is valid even though consent may have been
given under a mistake of facts, or procured by
fraud) (citation omitted).
In Food Lion, Inc., ABC reporters falsified job applications
with misrepresented identities and references to secure employment
at Food Lion. 194 F.3d at 510. These applications failed to
mention their concurrent employment with ABC. Id. The reporters
used their positions as purported Food Lion employees to gain
access to areas and information not available to the public. Id.at 510-11. The court affirmed the lower court's decision, holding
Food Lion showed a trespass, not by misrepresentation, but by the
breach of their duty of loyalty triggered by the filming in non-
public areas, which was adverse to Food Lion _ was a wrongful act
in excess of [the reporters'] authority to enter Food Lion's
premises as employees. Id. at 518 (citing Blackwood, 297 N.C. at
167, 254 S.E.2d at 9 (finding liability for trespass when activity
on property exceeded scope of consent to enter)). Food Lion's
consent for the reporters to enter or remain on the property was
nullified when they tortiously breached their duty of loyalty to
Food Lion. Id. at 519. Here, defendant falsely told plaintiff he
was a prospective client to gain entry to his private office,
remained after being asked, and specifically denied he worked for
defendant while he secretly taped the conversation without
plaintiff's knowledge or consent. The holding in Food Lion
supports plaintiffs' trespass claim here.
In Desnick v. American Broadcasting Companies, Inc., an ABC
producer obtained permission from Dr. Desnick to film his offices
for a news report after he falsely promised Dr. Desnick the report
would be fair and balanced, contain no undercover surveillance,
or involve ambush interviews. 44 F.3d 1345, 1348. Subsequently,
ABC investigators posed as test patients requesting eye
examinations. Id. When the news report aired, it alleged Dr.
Desnick tampered with equipment to obtain skewed results and
recommended unnecessary surgeries. Id. at 1348-49. The Seventh
Circuit explained, the test patients entered offices that wereopen to anyone expressing a desire for ophthalmic services and
videotaped physicians engaged in professional, not personal,
communications with strangers (the testers themselves). Id. at
1352 (emphasis supplied). The court also recognized and cited
Rockwell Graphic Systems, Inc. v. DEV Industries, Inc., 925 F.2d
174, 178 (7th Cir. 1991), which held, if a competitor gained entry
to a business firm's premises posing as a customer but in fact
hoping to steal the firm's trade secrets the business owner's
consent would be void and the trespasser would be liable. Id.
Plaintiff Nakell's private law office is not offices that were
open to anyone. Id.
In Medical Laboratory Management v. American Broadcasting
Companies, Inc., the United States District Court for Arizona held
Desnick was not controlling or persuasive authority in the State of
Arizona. 30 F. Supp. 2d 1182, 1203 (D. Ariz., 1998) ([T]he
conclusions reached in Desnick are not supported by the law in
Arizona or the Ninth Circuit . . . If the person consenting to the
conduct of another is induced to consent by . . . the other's
misrepresentation, the consent is not effective for the unexpected
invasion or harm. (quotation omitted)), aff'd, 306 F.3d 806 (9th
In Medical Laboratory Management, an employee of ABC
telephoned the plaintiff and misrepresented she was a medical
laboratory technician interested in opening a pap smear laboratory
in the State of Georgia. 30 F. Supp. 2d at 1185. On that pretext,
a meeting was scheduled. Id. The employee of ABC and a cameramanmet and also toured the laboratory with the plaintiff and discussed
costs, turn around time, and laboratory procedures. Id. ABC used
the information obtained during the tour and meeting for a news
report on frequent errors in pap smear testing. Id. at 1186.
In Shiffman v. Empire Blue Cross and Blue Shield, as here, a
learned professional was fraudulently solicited for services. 256
A.D.2d 131, 131, 681 N.Y.S.2d 511, 511 (N.Y.A.D., 1998). The
reporter misrepresented her identity and the purpose of her visit.
Id. The court held, the implied consent to enter the premises
were legally insufficient since consent obtained by
misrepresentation or fraud is invalid . . . . Id.
The holdings in Blackwood, Smith, Medical Laboratory
Management, and Shiffman support the viability of plaintiffs'
trespass claims. Blackwood, 297 N.C. at 167, 254 S.E.2d at 9;
Smith, 283 N.C. at 660, 197 S.E.2d at 528; Medical Laboratory
Management, 30 F. Supp. 2d at 1203; Shiffman, 256 A.D.2d at 131,
681 N.Y.S.2d at 511. The facts in Broughton are easily
distinguishable and not controlling to those before us. 161 N.C.
App. 20, 588 S.E.2d 20.
Here, defendant Johnson contacted plaintiff Nakell and posed
as a potential client. Plaintiff scheduled an appointment for
defendant to meet plaintiff at his law office located within his
private residence. Defendant obtained consent to enter plaintiff's
private office that is not open to the general public and met with
him on the pretext and false assertion that defendant was a
dissatisfied customer of Amerlink seeking representation. SeeShiffman, 256 A.D.2d at 131, 681 N.Y.S.2d at 511; Medical
Laboratory Management, 30 F. Supp. 2d at 1203; c.f. Blackwood, 297
N.C. at 167, 254 S.E.2d at 9.
Defendant lied about the identity of his employer and about
the purpose of the visit. When plaintiff Nakell directly asked
defendant Johnson if he worked for defendant Amerlink, he again
lied and answered in the negative. Defendant recorded the entire
meeting without plaintiff's knowledge. Defendant's sole purpose of
seeking the office visit was an attempt to obtain plaintiff's
breach of the non-disclosure agreement so defendant could
fraudulently avoid agreed payment thereunder.
Defendant's conduct and assertions were fraudulent and
deceitful. Plaintiff's initial and subsequent consent were
procured through defendant's trickery and lies. Throughout
defendant's entire investigation, he fraudulently gained consent to
enter plaintiff's attorney's property, to meet with plaintiff's
counsel, and with the intent to lure private information out of
plaintiff and his attorney to avoid payment on his mediated
settlement agreement. Plaintiff's consent to enter and remain on
plaintiff's property was voided when plaintiff's consent was
derived from defendant's repeated fraud and deceit. Blackwood, 297
N.C. at 167, 254 S.E.2d at 9 (quoting Smith, 283 N.C. at 660, 197
S.E.2d at 528). Without consent, plaintiff asserts a viable civil
trespass claim. The majority's opinion appears to agree that
defendant had no consent to enter or remain on the property, but
the majority's opinion does not explain or cite any authority forits assertion that defendant's unlawful and unauthorized entry was
not the kind to support the tort of trespass.
I concur with the majority's opinion to dismiss plaintiff's
claim against defendants for invasion of privacy.
plaintiff has asserted a viable civil trespass claim, plaintiff is
also entitled to assert unfair and deceptive trade practices and
punitive damages claims. Taha v. Thompson
, 120 N.C. App. 697, 704,
463 S.E.2d 553, 558 (1995) (Because we find sufficient evidence to
submit the trespass . . . to the jury, we conclude it would be
error not to submit the factual issues underlying plaintiff's
unfair and deceptive trade practices claim as well.), disc. rev.
, 344 N.C. 443, 476 S.E.2d 130 (1996).
Plaintiff's consent to enter and remain on his property was
derived by defendant's fraud or deceit and is void
. I vote to
reverse the trial court's dismissal of plaintiff's civil trespass,
unfair and deceptive trade practices, and punitive damages claims.
I respectfully dissent.
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