Keyzer v. Amerlink, Ltd.

618 S.E.2d 768, 173 N.C. App. 284, 2005 N.C. App. LEXIS 2037

Opinions

LEVINSON, Judge.

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 Amerlinlc 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 omitted).

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 be entered 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. We disagree.

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 through windows, 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, “[generally, 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 4 (2001)).

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, without revealing 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 anv information about their private concerns; had actually obtained anv 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 the trial 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.

Trespass

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 ini- tio.” 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 plaintiffs contention under the facts of the instant case. Blackwood and Miller merely stand for the proposition that a party’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 per se rule that a misrepresentation of identify invalidates the consent of the party to whom the misrepresentation was made. Likewise, Food Lion, supra, 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 Companies, Inc., 44 F.3d 1345 (7th Cir. 1995), stating that “[w]e like Desnick’s thoughtful analysis about when a consent to enter that is based on misrepresentation may be given effect.” Food Lion, id. 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.

Desnick, 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 to the 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 overruled.

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

Affirmed.

Chief Judge MARTIN concurs. Judge TYSON concurs in part and dissents in part.