H SCOTT DALLEY V DYKEMA GOSSETT PLLC
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STATE OF MICHIGAN
COURT OF APPEALS
H. SCOTT DALLEY,
FOR PUBLICATION
February 11, 2010
9:00 a.m.
Plaintiff-Appellant,
v
No. 289046
Kent Circuit Court
LC No. 07-003979-NZ
DYKEMA GOSSETT, P.L.L.C., JOHN
FERROLI, GUIDANCE SOFTWARE, INC.,
LINCOLN NATIONAL LIFE INSURANCE
COMPANY and LINCOLN FINANCIAL
ADVISORS CORPORATION,
Defendants-Appellees.
Before: Stephens, C.J., and Gleicher and M.J. Kelly, JJ.
GLEICHER, J.
In this action alleging several intentional torts, plaintiff H. Scott Dalley appeals as of
right a circuit court order granting defendants summary disposition pursuant to MCR
2.116(C)(8). We affirm in part, reverse in part, and remand for further proceedings.
I. Facts and Underlying Proceedings
A. The Federal Case
This case finds its genesis in a dispute between an insurance company and its agent. On
April 13, 2004, defendants Lincoln National Life Insurance Company and Lincoln Financial
Advisors Corporation (collectively Lincoln) sued Rodney Ellis, a Lincoln agent, and Lucasse,
Ellis, Inc. (Lucasse), a company partially owned by Ellis, in the United States District Court for
the Western District of Michigan. Lincoln’s federal court complaint alleged fraud, breach of
fiduciary duty, conversion, breach of contract, and tortious interference with business
expectancies or relations. Defendants Dykema Gossett P.L.L.C. (Dykema), and John Ferroli, a
Dykema member, represented Lincoln in the federal court action.
On April 15, 2004, a federal judge entered a temporary restraining order (TRO)
prohibiting Ellis, Lucasse, and instant plaintiff Dalley from “deleting, erasing, destroying,
shredding, secreting, removing, modifying, overwriting, replacing, or ‘wiping’” any computer
data or files containing information related to Lincoln’s customers and financial records. The
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paragraphs of the TRO directly relevant to plaintiff’s present intentional tort action read as
follows:
9.
Rodney D. Ellis and Lucasse, Ellis, Inc., all officers, owners,
employees, principals, and agents of either of them who receive actual notice of
this Order by personal service or otherwise, including but not limited to H. Scott
Dalley, and all persons or entities acting in concert with any of them, are hereby
ordered immediately upon service of this order to make available to a
computer/data consultant retained by Plaintiffs all hard drives and other magnetic,
optical or electronic media in the possession, custody, or control of any of them,
including those hard drives and other magnetic, optical, or electronic media that
they have the effective power to obtain, which contain any Lincoln Customer
Records, for prompt non-destructive copying at Plaintiffs’ expense. Plaintiffs
shall minimize disruption to the producing person’s business to the extent
practicable. Plaintiffs shall return all hard drives and other magnetic, optical, or
electronic media supplied pursuant to this Order within 24 hours, or such longer
time as may be stipulated to or ordered by this Court. Plaintiffs’ computer
consultant shall maintain the copied data in a secure, locked location, and shall
not review or inspect the data copied, or show it to Plaintiffs or their attorneys,
until further order of this Court.
10.
Rodney D. Ellis and Lucasse, Ellis, Inc., all officers, owners,
employees, principals, and agents of either of them, including, but not limited to,
H. Scott Dalley, and all persons or entities acting in concert with any of them who
receive actual notice of this Order by personal service or otherwise, are hereby
ordered immediately upon service of this order to provide for prompt copying of,
at Plaintiffs’ expense, (i) any and all “notes” data, files or records of present or
former customers of any Lincoln affiliate, and (ii) any and all “Alice Reports,”
“A-Roll” lists, and any other documents relating to any contemplated or processed
change-in-employment status for any employees of the Henry Ford Health System
with an account at any Lincoln affiliate.[1]
On April 19, 2004, Lincoln’s agents served plaintiff with the TRO in his Kentwood apartment,
and with the assistance of personnel employed by defendant Guidance Software, Inc. (Guidance
Software), copied all the data from all of plaintiff’s computers. The events surrounding
defendants’ entry into plaintiffs’ home and the copying of his computer data form the basis of the
instant lawsuit.
1
Despite that this case involves a summary disposition motion brought under MCR 2.116(C)(8),
we consider the TRO because defendants rely, in part, on the language of the TRO, which is a
matter of public record, see MCR 2.113(F)(1)(a), and plaintiff’s complaint references the TRO.
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B. The State Court Complaint
Plaintiff commenced this action on April 18, 2007 by filing in the Kent Circuit Court a
complaint against Dykema, Ferroli, Lincoln and Guidance Software.2 Plaintiff subsequently
filed a substantially similar first amended complaint, which describes in detail the circumstances
surrounding defendants’ conduct in serving the TRO and copying plaintiff’s computer data.
Because the allegations within the amended complaint supply the facts necessary to our
resolution of this case, we turn to an examination of that pleading.
The amended complaint avers that in April 2004, plaintiff worked out of his apartment as
an independent computer consultant for several small businesses, including Lucasse. The
computers in his apartment provided his livelihood and held confidential information concerning
all his clients, such as their user identifications and passwords. Plaintiff, who suffers from
AIDS, also stored on his computers highly personal information, medical records, photographs,
and tax returns.
On April 19, 2004, plaintiff’s doorbell rang and someone requested that plaintiff permit
entry into his apartment building. Because plaintiff was not expecting visitors, he did not
respond. At approximately 11:00 a.m., loud pounding on his door “jolted” plaintiff awake and
he “realized that the men outside had managed to slip through the security system downstairs.”
Plaintiff saw papers slide under his door, and he read them after the men had departed. The
papers included the TRO, which “completely blindsided” plaintiff. Soon thereafter, plaintiff’s
telephone rang, but he did not answer it. The caller, Ferroli, left a message declaring that a
federal court subpoena allowed him and others to enter plaintiff’s apartment “to either take his
computers and hard drives or copy what was on them.” Plaintiff “reasonably believed that he
could not let Ferroli simply walk out the door with the computers,” and that “he had no choice
and would go to jail” if he refused Ferroli access to his computers. Plaintiff thus “returned
Ferroli’s call and agreed to” allow Ferroli “to copy the information on his computers.”
Ferroli and several Guidance Software employees arrived, and plaintiff “led the group to
the master bedroom where he kept two computers and four hard drives and, having seen from the
subpoena that the case had something to do with Lincoln and Ellis, pointed them to the one and
only hard drive that would contain Lincoln data.” But “[t]he intruders … demanded everything.”
The Guidance Software personnel connected laptop computers to plaintiff’s machines and
transferred “every bit of information on all [plaintiff’s] computers and hard drives.” Only a
“small percentage” of the information copied by Guidance Software personnel related to Ellis,
Lucasse, or Lincoln. The data transfer and copying process consumed 11 hours, during which
2
On June 13, 2007, defendants removed this action to federal court, averring that “the
allegations of Plaintiff’s Complaint raise substantial disputed issues concerning the scope and
interpretation of a Temporary Restraining Order entered by the United States District Court for
the Western District of Michigan . . . .” However, a federal judge later granted plaintiff’s motion
to remand, finding that “the TRO is not a complex document and did not specifically retain
jurisdiction in a federal court for the purpose of interpreting and enforcing it.”
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period Ferroli “wandered in and out.” In frail health and underweight, plaintiff “did not sleep for
several days thereafter.”
Four days after Ferroli and the Guidance Software technicians entered plaintiff’s home, a
Dykema attorney took plaintiff’s deposition, urging him “to state on the record that he was
suffering from AIDS[.]” Due to illness, plaintiff had to complete the deposition later, by
telephone from his bed. On July 1, 2004, Lincoln’s attorneys informed the federal judge in the
Ellis case that plaintiff had violated the TRO. Despite this claim and similar allegations in
Lincoln’s federal court complaint, defendants never uncovered or presented any evidence of
wrongdoing by plaintiff or Ellis. Defendants’ actions “traumatized [plaintiff], devastated his best
customer, and thereby destroyed [plaintiff’s] business.” According to the amended complaint,
Lincoln bore vicarious liability for the conduct of Dykema, Ferroli and Guidance, because these
defendants “were Lincoln’s agents and were acting within the scope of their agency.”
The amended complaint sets forth five intentional tort claims: invasion of privacy in the
form of intrusion on seclusion or into private affairs; trespass; intentional or reckless infliction of
emotional distress; abuse of process; and tortious interference with business relationships or
expectancies. All defendants sought summary disposition of plaintiff’s claims pursuant to MCR
2.116(C)(8). Dykema, Ferroli and Guidance filed a separate motion seeking summary
disposition under MCR 2.116(C)(10). In a written opinion and order entered on September 9,
2008, the circuit court granted defendants’ (C)(8) motions and dismissed the entirety of
plaintiff’s complaint.
II. Summary Disposition Analysis
A. Standard of Review
Plaintiff challenges the circuit court’s grant of summary disposition regarding all five
counts of his complaint. This Court reviews de novo a circuit court’s summary disposition
ruling. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). A court may grant
summary disposition under MCR 2.116(C)(8) if “[t]he opposing party has failed to state a claim
on which relief can be granted.” A motion brought under subrule (C)(8) tests the legal
sufficiency of the complaint based solely on the pleadings. Corley v Detroit Bd of Ed, 470 Mich
274, 277; 681 NW2d 342 (2004).3 When deciding a (C)(8) motion, this Court accepts all wellpleaded factual allegations as true and construes them in the light most favorable to the
nonmoving party. Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). A party may
not support a motion under subrule (C)(8) with documentary evidence such as affidavits,
depositions, or admissions. Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994).
Summary disposition on the basis of subrule (C)(8) should be granted only when the claim “is so
clearly unenforceable as a matter of law that no factual development could possibly justify a
right of recovery.” Kuhn v Secretary of State, 228 Mich App 319, 324; 579 NW2d 101 (1998).
3
In contrast, a motion brought “under MCR 2.116(C)(10) tests the factual sufficiency of the
complaint.” Maiden, 461 Mich at 120 (emphasis supplied).
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Because the circuit court granted defendants summary disposition solely under subrule
(C)(8), we examine the pleaded allegations pertaining to each of the asserted intentional torts.
Well-established principles guide our review. A complaint must contain “[a] statement of the
facts, without repetition, on which the pleader relies in stating the cause of action, with the
specific allegations necessary reasonably to inform the adverse party of the nature of the claims
the adverse party is called on to defend . . . .” MCR 2.111(B)(1). “[T]he primary function of a
pleading in Michigan is to give notice of the nature of the claim or defense sufficient to permit
the opposite party to take a responsive position.” Stanke v State Farm Mut Automobile Ins Co,
200 Mich App 307, 317; 503 NW2d 758 (1993), citing 1 Martin, Dean & Webster, Michigan
Court Rules Practice, p 186. Our Supreme Court has characterized MCR 2.111(B)(1) as
consistent with a “notice pleading environment.” Roberts v Mecosta Co Gen Hosp (After
Remand), 470 Mich 679, 700 n 17; 684 NW2d 711 (2004). If a party fails to plead facts with
sufficient detail, the court should permit “the filing of an amended complaint setting forth
plaintiff’s claims in more specific detail.” Rose v Wertheimer, 11 Mich App 401, 407; 161
NW2d 406 (1968); see also MCR 2.116(I)(5).
B. Invasion of Privacy
“Michigan has long recognized the common-law tort of invasion of privacy.” Lewis v
LeGrow, 258 Mich App 175, 193; 670 NW2d 675 (2003). Dean Prosser has identified a
Michigan case, DeMay v Roberts, 46 Mich 160; 9 NW 146 (1881), as among the first reported
decisions allowing relief premised on an invasion of privacy theory. Prosser, Privacy, 48 Cal L
Rev 383, 389 (1960). Today, the invasion of privacy tort
has evolved into four distinct tort theories: (1) the intrusion upon another’s
seclusion or solitude, or into another’s private affairs; (2) a public disclosure of
private facts about the individual; (3) publicity that places someone in a false light
in the public eye; and (4) the appropriation of another’s likeness for the
defendant’s advantage.” [Lewis, 258 Mich App at 193.]
Count I of plaintiff’s amended complaint invokes intrusion on seclusion, the first of these
theories.
There are three necessary elements to establish a prima facie case of
intrusion upon seclusion: (1) the existence of a secret and private subject matter;
(2) a right possessed by the plaintiff to keep that subject matter private; and (3)
the obtaining of information about that subject matter through some method
objectionable to a reasonable man. [Doe v Mills, 212 Mich App 73, 88; 536
NW2d 824 (1995).]
The circuit court granted summary disposition of plaintiff’s intrusion of seclusion claim
on the basis that the complaint failed to set forth facts “that show that he had a right to privacy in
those areas of the apartment necessary to carry out the mandate of the TRO.” Relying on this
Court’s opinion in Saldana v Kelsey-Hayes Co, 178 Mich App 230; 443 NW2d 382 (1989), the
circuit court added that the TRO deprived plaintiff of a right to privacy in his computers and hard
drives:
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With respect to the plaintiff’s personal information on the computers, the
complaint further alleges that plaintiff pointed the Dykema defendants to the “one
and only hard drive that would contain Lincoln data” but that the employees of
defendant Guidance copied all of the information contained on all of plaintiff’s
computers and hard drives. Pursuant to the TRO, the Dykema defendants had a
right to copy hard drives that were potential sources of Lincoln information.
Thus, even when viewed in plaintiff’s favor, the complaint does not allege facts
that show he had a right to privacy in his hard drives for purposes of carrying out
the TRO. [Citation omitted].
Plaintiff asserts that the circuit court misconstrued both Saldana and the TRO, insisting that the
TRO neither invested defendants with a right to violate plaintiff’s privacy nor deprived plaintiff
of his common-law privacy rights.
The plaintiff in Saldana, a supervisor in one of the defendant’s facilities, fell from a
bicycle in the course of his employment. Id. at 232. The defendant suspected the plaintiff of
malingering and hired a private investigation firm to “investigate plaintiff and to attempt to
determine the extent of plaintiff’s injuries.” Id. The investigators employed a variety of
surveillance techniques, including observing the plaintiff through an open window with a 1,200millimeter camera lens and posing as a process server “for the purpose of looking around
plaintiff’s home[.]” Id. at 232-233. The plaintiff brought an invasion of privacy action asserting
an intrusion on his seclusion. Id. at 233.
This Court first determined that the plaintiff “can show an intrusion,” because “agents of
defendants entered plaintiff’s home under false pretenses” and “the use of a powerful camera
lens to observe the interior of a home or of a subterfuge to enter a home could be found
objectionable to a reasonable person.” Saldana, 178 Mich App at 234. However, because the
defendants’ surveillance of the plaintiff “involved matters which defendants had a legitimate
right to investigate,” this Court concluded that the plaintiff failed to allege facts that showed the
intrusions “were into matters which plaintiff had a right to keep private.” Id. This Court
explained that “the duty to refrain from intrusion into another’s private affairs is not absolute in
nature, but rather is limited by those rights which arise from social conditions, including the
business relationship of the parties.” Id. (emphasis in original). The Court concluded that the
plaintiff’s privacy interest in his home “was subject to the legitimate interest of his employer in
investigating suspicions that plaintiff’s work-related disability was a pretext.” Id. at 235.
We find Saldana readily distinguishable from this case. In Saldana, the nature of the
parties’ relationship limited the plaintiff’s right to privacy concerning the matter the defendant
investigated: whether the plaintiff suffered from work-related disabilities. Here, defendants and
plaintiff shared no special relationship, business or otherwise, and defendants possessed no
legitimate interest in viewing plaintiff’s apartment or copying computer data unrelated to
Lincoln. Furthermore, we reject the circuit court’s conclusion that the TRO divested plaintiff of
his right to privacy in his apartment and computer hard drives. The TRO afforded defendants no
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right whatsoever to enter or search plaintiff’s apartment.4 Regarding plaintiff’s computers, the
TRO entitled Lincoln’s agent to copy hard drives and other electronic media “which contain any
Lincoln Customer Records.” But no provision in the TRO authorized defendants to copy
personal computer data unrelated to Lincoln.5 Moreover, we find no support for the circuit
court’s determination that defendants “had a right to copy hard drives that were potential sources
of Lincoln information.” (Emphasis added). The TRO neither mentions “potential” sources of
information nor in any manner expands the reach of defendant’s copying authority beyond
matters directly related to Lincoln.
Plaintiff’s amended complaint avers that he “had a right to privacy in his own home and a
right to keep private the private information on his computers and hard drives,” and that
defendants invaded plaintiff’s privacy “by intruding upon his seclusion or solitude and into his
private affairs, and obtained access to [plaintiff’s] home and information about his private affairs
by methods objectionable to a reasonable person.” This averment adequately sets forth a claim
of invasion of privacy by intrusion on seclusion. The plain language of the TRO in no way
renders unenforceable plaintiff’s intrusion on seclusion claim.
Defendants alternatively maintain that plaintiff expressly or impliedly consented to the
intrusion on his seclusion by allowing Ferroli and the Guidance Software personnel into his
apartment and permitting them to copy his computer data. We resolve this contention by
referring to our Supreme Court’s landmark decision in DeMay, 46 Mich 160, and this Court’s
analysis in Lewis, 258 Mich App 175. The defendant in DeMay, a physician, set out on “a dark
and stormy” night to attend the plaintiff, a patient in labor. Id. at 162. Because Dr. DeMay “was
sick and very much fatigued from overwork,” he asked a codefendant named Scattergood, “a
4
The common law reflects “reverence … for the individual’s right of privacy in his house.”
Miller v United States, 357 US 301, 313; 78 S Ct 1190; 2 L Ed 2d 1332 (1958). Nothing in the
language of the TRO supports a construction of that document as the equivalent of a warrant
permitting entry into plaintiff’s apartment or authorizing a search and seizure therein.
5
Defendants offer a patently unreasonable suggested interpretation of TRO ¶ 9, the meaning of
which “involves questions of law that we review de novo on appeal.” Silberstein v Pro-Golf of
America, Inc, 278 Mich App 446, 460; 750 NW2d 615 (2008). Defendants dispute the portion of
TRO ¶ 9 instructing that plaintiff and others must
make available . . . all hard drives and other magnetic, optical or electronic media
in the possession, custody, or control of any of them, including those hard drives
and other magnetic, optical or electronic media that they have the effective power
to obtain, which contain any Lincoln Customer Records, for prompt nondestructive copying . . . .” [Emphasis added.]
Our reading of this provision clearly and unambiguously conveys that the italicized qualifying
language, “which contain any Lincoln Customer Records,” refers and applies to the previously
referenced electronic media whether in the possession of the specifically identified individuals
like plaintiff or within their “effective power to obtain.” Stated differently, in this case
defendants plainly had entitlement to access only those Lincoln customer records in plaintiff’s
actual or constructive possession.
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young unmarried man, a stranger to the plaintiff and utterly ignorant of the practice of
medicine,” to accompany and assist him. Id. at 161-162. When they arrived at the plaintiff’s
home, Dr. DeMay told the plaintiff’s husband, “‘I had fetched a friend along to help carry my
things’ . . . .” Id. at 162. Neither the plaintiff nor her husband objected to Scattergood’s
presence, and during most of the plaintiff’s labor Scattergood sat facing a wall. Id. at 162, 165.
At one point, Dr. DeMay asked Scattergood to assist by holding the plaintiff’s hand “during a
paroxysm of pain.” Id. at 162. The plaintiff brought suit when she ascertained Scattergood’s
true identity and lack of medical training, contending that Dr. DeMay deceived her into believing
that Scattergood “was an assistant physician.” Id. at 161.
The Supreme Court held that “the plaintiff had a legal right to the privacy of her
apartment at such a time, and the law secures to her this right by requiring others to observe it,
and to abstain from its violation.” DeMay, 46 Mich at 165-166. Notwithstanding that
Scattergood and Dr. DeMay “were bidden to enter, treated kindly and no objection whatever
[was] made to the presence of defendant Scattergood,” id. at 162, the Supreme Court declined to
hold that the plaintiff had consented to Scattergood’s intrusion on her privacy:
The fact that at the time, she consented to the presence of Scattergood
supposing him to be a physician, does not preclude her from maintaining an
action and recovering substantial damages upon afterwards ascertaining his true
character. In obtaining admission at such a time and under such circumstances
without fully disclosing his true character, both parties were guilty of deceit, and
the wrong thus done entitles the injured party to recover the damages afterwards
sustained, from shame and mortification upon discovering the true character of
the defendants. [Id. at 166.]
This Court revisited DeMay in Lewis, 258 Mich App 175, a case that “involve[d] the
surreptitious, nonconsensual videotaping of intimate acts of sexual relations in defendant[’s] …
bedroom.” Id. at 178. A jury found that the defendant had violated the plaintiffs’ common-law
rights to privacy. The defendant argued on appeal that because the plaintiffs had consented to
having sex with him, as a matter of law he had not invaded their privacy. Id. at 191. This Court
acknowledged that “there can be no invasion of privacy under the theory of intrusion upon the
seclusion of plaintiffs if plaintiffs consented to defendant’s intrusion (videotaping).” Id. at 194.
However, “[t]he question of waiver or consent … does not have a zero-sum answer but, rather,
presents an issue of the degree or extent of waiver or consent granted, which depends on the facts
and circumstances of the case.” Id. at 194. Because the evidence in Lewis supported that the
defendant had videotaped the plaintiffs without their knowledge or consent, this Court concluded
that a factual question existed on which reasonable minds could differ with respect to the scope
of the plaintiffs’ consent to the taping.
The Court in Lewis characterized DeMay as illustrating that “[t]he deceitful presence of a
medically unqualified, unnecessary person” exceeded the plaintiff’s consent to the presence of
“any necessary physician’s assistants.” Id. The Court in Lewis further referenced the following
statement from this Court’s opinion in Earp v Detroit, 16 Mich App 271, 278 n 5; 167 NW2d
841 (1969):
The right of privacy may be waived by the individual or by anyone
authorized by him, and this waiver may be either express or implied. . . . The
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existence of a waiver carries with it the right to an invasion of privacy only to
such an extent, however, as may be legitimately necessary and proper in dealing
with the matter which has brought about the waiver, or, as otherwise stated, only
to the extent warranted by the circumstances which brought about the waiver.
And in Saldana, 178 Mich App at 234, this Court found that the plaintiff established an intrusion
based on the defendants’ agents’ entry into the plaintiff’s home “under false pretenses.”
Here, plaintiff’s amended complaint alleges that defendants obtained consent to enter the
apartment through a combination of subterfuge and threat: “Ferroli said he had a federal court
subpoena that allowed him and the other men to come inside [plaintiff’s] apartment to either take
his computers and hard drives or copy what was on them.” The amended complaint also avers
that plaintiff withheld consent to defendants’ copying of anything other than “the one and only
hard drive that would contain Lincoln data.” These averments fall squarely within the legal
analyses and holdings presented in DeMay and Lewis. As described in the amended complaint,
the circumstances surrounding defendants’ entry into plaintiff’s apartment and the copying of his
computer hard drives reasonably suggest that defendants’ artifice and dishonesty enticed
plaintiff’s consent. “Generally, the scope of a waiver or consent will present a question of fact
for the jury[.]” Lewis, 258 Mich App at 195. As in Lewis, id., when viewed in the light most
favorable to plaintiff, the amended complaint presents factual questions on which reasonable
minds could differ with respect to whether defendants gained admission to plaintiff’s premises
by deceit, as in DeMay, or exceeded the scope of the consent plaintiff extended, as in Lewis and
Earp.
Defendants lastly argue regarding the invasion of privacy count that plaintiff’s complaint
contains no facts supporting that defendants obtained private information through a method that
might be objectionable to a reasonable person, or that defendants ever viewed the information
they copied. Whether a reasonable person would find an intrusion objectionable constitutes a
factual question best determined by a jury. Saldana, 178 Mich App at 234. In Saldana, this
Court specifically opined that use “of a subterfuge to enter a home could be found objectionable
to a reasonable person.” Id. We conclude that as alleged, defendants’ entry of plaintiff’s home
under false pretenses and their disregard of his instructions about the location of the Lincolnrelated information they desired could be found objectionable by a reasonable juror.
Furthermore, “An action for intrusion upon seclusion focuses on the manner in which the
information was obtained, not on the information’s publication.” Lewis, 258 Mich App at 193
(emphasis added). In Harkey v Abate, 131 Mich App 177, 182; 346 NW2d 74 (1983), this Court
adopted the Restatement view that
[t]he type of invasion of privacy asserted by plaintiff does not depend upon any
publicity given to the person whose interest is invaded, but consists solely of an
intentional interference with his or her interest in solitude or seclusion of a kind
that would be highly offensive to a reasonable person. [Id., quoting 3
Restatement of Torts, 2d, § 652B, p 378].
Therefore, irrespective whether defendants ever viewed the copied information, the amended
complaint’s description of the methods defendants employed to obtain the data adequately
pleaded an invasion of plaintiff’s seclusion.
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In summary, because plaintiff’s amended complaint adequately sets forth a claim for
invasion of privacy by intrusion on seclusion, we conclude that the circuit court improperly
granted defendants summary disposition of this claim under MCR 2.116(C)(8).
C. Trespass
Plaintiff next challenges the circuit court’s ruling that his amended complaint “failed to
state the element of unauthorized entry that is necessary for a claim of trespass.” The circuit
court reasoned that defendants “had a nonconsensual privilege to enter plaintiff’s apartment for
the purpose of” executing the TRO. In support of this conclusion, the circuit court cited this
Court’s decision in Antkiewicz v Motorists Mut Ins Co, 91 Mich App 389; 283 NW2d 749,
vacated in part on other grounds 407 Mich 936 (1979), and 2 Restatement Torts, 2d, § 210.
Defendants suggest that the because plaintiff refused to allow his computers to leave his
apartment, the circuit court correctly determined that the TRO authorized entry of the apartment
for duplication of the hard drives.
A trespass is an unauthorized invasion on the private property of another. American
Transmission, Inc v Channel 7 of Detroit, Inc, 239 Mich App 695, 705-70; 609 NW2d 607
(2000). In Antkiewicz, 91 Mich App at 396, the Court explained that “[n]ormally, a public
officer who is on the premises of another pursuant to legal authorization is not liable for
trespass.” The circuit court in this case recognized that defendants do not qualify as public
officers, but opined that they possessed analogous powers under 2 Restatement Torts, 2d, § 210,
which reads as follows:
The privilege to execute an order of a court directing the actor to put a
third person in possession of land of which another is in possession, or to do any
other act on the land, carries with it the privilege to enter the land for the purpose
of executing the order, provided that any writ issued for the execution of the order
is valid or fair on its face.
Irrespective that Michigan has not adopted this section of the Restatement, we decline to
apply § 210 here because it bears no relevance to the facts of this case. The TRO neither
authorized defendants to take possession of plaintiff’s land nor invested them with the authority
“to do any other act on the land.” The TRO required plaintiff “to provide for prompt copying” of
his computer data concerning Lincoln and permitted Lincoln’s agents to copy the data, but it
afforded defendants no right to enter plaintiff’s apartment, either to obtain the computer hard
drives or to accomplish the copying. Consequently, we reject as unfounded the circuit court’s
conclusion that the language of the TRO contemplated or authorized an entry onto plaintiff’s
land.
Whether plaintiff consented to defendants’ entry into his apartment presents a more
difficult question. Plaintiff’s amended complaint avers that he allowed defendants to enter his
apartment based on their misrepresentation that the TRO permitted them “to either take his
computers and hard drives or copy what was on them.” Michigan has not squarely considered
whether in an action for trespass a misrepresentation utilized to secure a homeowner’s consent to
enter a private home vitiates the homeowner’s consent. In American Transmission, 239 Mich
App at 695, this Court considered a somewhat similar issue. The American Transmission
plaintiffs sued a television station that had recorded the interactions between a decoy customer
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and the plaintiffs’ transmission repair personnel. The plaintiffs’ complaint asserted that the
defendants had committed a trespass when they “gained entry by concealing their true identity
and misrepresenting their agent’s relationship to them.” Id. at 699-700. This Court upheld
summary disposition of the plaintiffs’ trespass claim, finding that although the decoy customer
“misrepresented her purpose, plaintiffs’ consent was still valid because she did not invade any of
the specific interests relating to the peaceable possession of land that the tort of trespass seeks to
protect.” Id. at 708. The Court emphasized that the decoy customer had entered only public
areas of the defendants’ transmission shop and videotaped a “professional discussion.” Id. at
708-709. The decoy customer “did not disrupt the shop or invade anyone’s private space, and
the videotape she made did not reveal the intimate details of anybody’s life.” Id. at 709.
In American Transmission, 239 Mich App 708, this Court cited favorably a case decided
by the United States Court of Appeals for the Seventh Circuit, Desnick v American Broadcasting
Cos, Inc, 44 F3d 1345 (CA 7, 1995). In Desnick, the Seventh Circuit, in an opinion authored by
Judge Posner, rejected that journalists posing as test patients at an eye surgery center had
committed a trespass, reasoning that the test patients’ entry did not invade
any of the specific interests that the tort of trespass seeks to protect. The test
patients entered offices that were open to anyone expressing a desire for
ophthalmic services and videotaped physicians engaged in professional, not
personal, communications with strangers (the testers themselves). The activities
of the offices were not disrupted . . . . Nor was there any invasion of a person’s
private space, . . . as in the famous case of De May v Roberts, 46 Mich 160; 9 NW
146 (1881) (where a doctor, called to the plaintiff’s home to deliver her baby,
brought along with him a friend who was curious to see a birth but was not a
medical doctor, and represented the friend to be his medical assistant) . . . . [Id. at
1352 (internal quotation omitted).]
As the Seventh Circuit recognized in Desnick, important distinctions differentiate
misrepresentations directed to gain entry to business concerns and those employed to enter a
private home. The Seventh Circuit acknowledged that in a true trespass case, “there can be no
implied consent in any nonfictitious sense of the term when express consent is procured by a
misrepresentation or a misleading omission.” Id. at 1351. The court posited the following
illustrative example: “If a homeowner opens his door to a purported meter reader who is in fact
nothing of the sort—just a busybody curious about the interior of the home—the homeowner’s
consent to his entry is not a defense to a suit for trespass.” Id. at 1352. Nevertheless, the law
sometimes deems effective in the trespass context a consent procured by misrepresentation. The
Seventh Circuit in Desnick explained the difference between the two classes of cases by
contrasting the phony meter reader intruding into a home with a phony customer, reminiscent of
the defendants in American Transmission:
[T]he homeowner victimized by the phony meter reader does not want
strangers in his house unless they have authorized service functions. The dealer’s
objection to the customer who claims falsely to have a lower price from a
competing dealer is not to the physical presence of the customer, but to the fraud
that he is trying to perpetuate. [Id.]
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A decision of the United States Court of Appeals for the Ninth Circuit, Theofel v FareyJones, 359 F3d 1066 (CA 9, 2004), further illustrates that the character of a particular deceit
remains critical to a determination of the implicated privacy interests. In Theofel, the plaintiffs
cooperated with a faulty subpoena issued by the defendants, federal court litigants, and the Ninth
Circuit considered whether the plaintiffs’ cooperation operated as a consent to disclosure of
otherwise protected information. The Ninth Circuit analogized to the common law of trespass
and, citing Desnick, concluded that the plaintiffs had alleged facts that vitiated their apparent
consent:
A defendant is not liable for trespass if the plaintiff authorized his entry.
See Prosser & Keeton § 13, at 70. But “an overt manifestation of assent or
willingness would not be effective . . . if the defendant knew, or probably if he
ought to have known in the exercise of reasonable care, that the plaintiff was
mistaken as to the nature and quality of the invasion intended.” Id. § 18, at 119; .
...
Not all deceit vitiates consent. “(T)he mistake must extend to the essential
character of the act itself, which is to say that which makes it harmful or
offensive, rather than to some collateral matter which merely operates as an
inducement.” Prosser & Keeton § 18, at 120 . . . . In other words, it must be a
“substantial mistake() . . . concerning the nature of the invasion or the extent of
the harm.” Restatement (Second) of Torts § 892B(2) cmt g. . . .
. . . [T]he theory is that some invited mistakes go to the essential nature of
the invasion while others are merely collateral. Classification depends on the
extent to which the intrusion trenches on “the specific interests that the tort of
trespass seeks to protect.” Desnick, 44 F3d at 1352 . . . .
***
Under this standard, plaintiffs have alleged facts that vitiate [their internet
service provider] NetGate’s consent. NetGate disclosed the sample in response to
defendants’ purported subpoena. Unbeknownst to NetGate, that subpoena was
invalid. This mistake went to the essential nature of the invasion of privacy. The
subpoena’s falsity transformed the access from a bona fide state-sanctioned
inspection into private snooping. The false subpoena caused disclosure of
documents that otherwise would have remained private; it effected an “invasion . .
. of the specific interests that the (statute) seeks to protect.” Desnick, 44 F3d at
1352. [Theofel, 359 F3d at 1073-1074 (some citations omitted).]
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The Ninth Circuit concluded that “[b]ecause defendants procured consent by exploiting a
mistake of which they had constructive knowledge, the district court erred by dismissing based
on that consent.” Id. at 1075.6
“Trespass is an invasion of the plaintiff’s interest in the exclusive possession of his land .
. . .” Adams v Cleveland-Cliffs Iron Co, 237 Mich App 51, 59; 602 NW2d 215 (1999) (internal
quotation omitted). Under the common law, a trespass on land violated the landowner’s right to
exclude others from the premises. Id. at 60. Here, plaintiff’s amended complaint avers that
defendants obtained his consent to enter the apartment by representing that a “federal court
subpoena” authorized their access to the inside of plaintiff’s home, that defendants’ entry
constituted a trespass, and that “[t]hey intended to intrude on [plaintiff’s] private property
without authorization to do so.” We conclude that these averments adequately delineate a
trespass claim and that defendants’ alleged misrepresentations could reasonably be found to have
vitiated plaintiff’s consent to the entry of his property. Because the interest protected by the
common-law tort of trespass is identical to that identified in plaintiff’s amended complaint, this
case more closely parallels the phony meter reader’s entry into a residence than the decoy
customers’ entries into business premises. Accordingly, we reverse the circuit court’s grant of
summary disposition of plaintiff’s trespass claim.
D. Intentional or Reckless Infliction of Emotional Distress
Plaintiff further asserts that the circuit court erred by granting summary disposition of his
claim for intentional or reckless infliction of emotional distress. According to plaintiff,
reasonable minds could differ with respect to whether defendants’ conduct qualified as
outrageous in light of Ferroli’s status as a lawyer, plaintiff’s AIDS-related disability, and the
prolonged length of time defendants spent in plaintiff’s bedroom. “To establish a prima facie
claim of intentional infliction of emotional distress, the plaintiff must present evidence of (1) the
defendant’s extreme and outrageous conduct, (2) the defendant’s intent or recklessness, (3)
causation, and (4) the severe emotional distress of the plaintiff.” Walsh, 263 Mich App at 634.
“[O]nly when a plaintiff can demonstrate that the defendant’s conduct is ‘so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be
6
Although Theofel involved an invalid subpoena rather than a valid TRO, we find instructive its
discussion regarding the duties attendant on those who invoke the powers of the court:
The subpoena power is a substantial delegation of authority to private
parties, and those who invoke it have a grave responsibility to ensure it is not
abused. Informing the person served of his right to object is a good start, see
FedRCivP 45(a)(1)(D), but it is no substitute for the exercise of independent
judgment about the subpoena’s reasonableness. Fighting a subpoena in court is
not cheap, and many may be cowed into compliance with even overbroad
subpoenas, especially if they are not represented by counsel or have no personal
interest at stake. [Id. at 1074-1075.]
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regarded as atrocious and utterly intolerable in a civilized community” will liability attach.
Graham v Ford, 237 Mich App 670, 674; 604 NW2d 713 (1999). “[M]ere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities” do not give rise to liability for
intentional infliction of emotional distress. Doe, 212 Mich App at 91. Initially, the trial court
must determine whether a defendant’s conduct qualifies as so extreme and outrageous as to
permit recovery for intentional infliction of emotional distress. Sawabini v Desenberg, 143 Mich
App 373, 383; 372 NW2d 559 (1985).
Even accepting as true the allegations in plaintiff’s amended complaint, they fail to
describe conduct so extreme or outrageous that it surpasses all bounds of decency in a civilized
society. Assuming that Ferroli misled plaintiff about the scope of the TRO, defendants’ conduct
inside plaintiff’s home simply does not amount to atrocious or extreme behavior. At worst,
defendants’ engaged in actions that were annoying and oppressive, but these actions do not rise
to the level of outrageousness necessary to establish a claim for intentional infliction of
emotional distress. We thus conclude that the circuit court correctly dismissed this claim under
MCR 2.116(C)(8).
E. Abuse of Process
Plaintiff additionally contends that the circuit court improperly granted summary
disposition of his abuse of process count.
A meritorious claim of abuse of process contemplates a situation where
the defendant has availed himself of a proper legal procedure for a purpose
collateral to the intended use of that procedure, e.g., where the defendant utilizes
discovery in a manner consistent with the rules of procedure, but for the improper
purpose of imposing an added burden and expense on the opposing party in an
effort to conclude the litigation on favorable terms. [Vallance v Brewbaker, 161
Mich App 642, 646; 411 NW2d 808 (1987).]
In a case alleging abuse of process, the pleadings must allege with specificity an act committed
in the use of process “that is improper in the regular prosecution of the proceeding.” Early
Detection Center, PC v New York Life Ins Co, 157 Mich App 618, 629; 403 NW2d 830 (1986).
A complaint must allege more than the mere issuance of the process, because an “action for
abuse of process lies for the improper use of process after it has been issued, not for maliciously
causing it to issue.” Friedman v Dozorc, 412 Mich 1, 31; 312 NW2d 585 (1981) (internal
quotation omitted). A claim asserting nothing more than an improper motive in properly
obtaining process does not successfully plead an abuse of process. Young v Motor City
Apartments Ltd Dividend Housing Ass’n No 1 & No 2, 133 Mich App 671, 681; 350 NW2d 790
(1984).
Plaintiff’s amended complaint alleges that defendants harbored an “ulterior purpose” to
“serve Lincoln’s strategy of intimidating and harassing Ellis, and give Lincoln a tactical business
advantage over Ellis when there was no factual basis for the proceeding.” Even assuming that
plaintiff may properly assert a collateral purpose directed solely at harming a third party, the
amended complaint fails to allege with specificity any acts committed in furtherance of this
purpose. Moreover, “the ulterior purpose alleged must be more than harassment, defamation,
exposure to excessive litigation costs, or even coercion to discontinue business.” Early
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Detection Ctr, 157 Mich App at 629-630. We agree with the circuit court’s finding that plaintiff
simply did not identify an act or facts supporting that defendants used the TRO for an improper,
collateral purpose. However, pursuant to MCR 2.116(I)(5), the circuit court must afford plaintiff
an opportunity to amend his complaint to set forth his abuse of process claim in greater detail.
F. Tortious Interference with Business Relationship or Expectancy
Plaintiff lastly disputes the circuit court’s grant of summary disposition concerning his
claim for tortious interference with a business relationship or expectancy.
The elements of tortious interference with a business relationship are the
existence of a valid business relationship or expectancy, knowledge of the
relationship or expectancy on the part of the defendant, an intentional interference
by the defendant inducing or causing a breach or termination of the relationship or
expectancy, and resultant damage to the plaintiff. [BPS Clinical Laboratories v
Blue Cross & Blue Shield of Michigan (On Remand), 217 Mich App 687, 698699; 552 NW2d 919 (1996).]
To fulfill the third element, intentional interference inducing or causing a breach of a business
relationship, a plaintiff must demonstrate that the defendant acted both intentionally and
improperly or without justification. Bonelli v Volkswagen of America, Inc, 166 Mich App 483,
498; 421 NW2d 213 (1988). To establish that a defendant’s conduct lacked justification and
evidenced malice, “the plaintiff must demonstrate, with specificity, affirmative acts by the
defendant that corroborate the improper motive of the interference.” BPS Clinical Laboratories,
217 Mich App 699. “Where the defendant’s actions were motivated by legitimate business
reasons, its actions would not constitute improper motive or interference.” Id.
Plaintiff’s amended complaint asserts that defendants knew or should have known that
their pursuit of the TRO and a vindictive, groundless lawsuit against Ellis would disrupt
plaintiff’s business relationship with Ellis and Lucasse. These allegations do not set forth a
claim for tortious interference with a business relationship. “[I]n order to succeed under a claim
of tortious interference with a business relationship, the plaintiffs must allege that the interferer
did something illegal, unethical or fraudulent. There is nothing illegal, unethical or fraudulent in
filing a lawsuit, whether groundless or not.” Early Detection Ctr, 157 Mich App at 631. We
also decline to find that defendants’ pursuit of the TRO amounts to illegal, unethical or
fraudulent conduct and conclude, as did the circuit court, that plaintiff’s amended complaint fails
to allege any act of improper interference sufficient to allow him to maintain his tortious
interference claim.
III. Additional Issues
Because the circuit court granted summary disposition of all claims pleaded in the
amended complaint, the court declined to address (1) Lincoln’s argument that as a matter of law
plaintiff cannot establish its vicarious liability, (2) Dykema and Ferroli’s motion for summary
disposition premised on MCR 2.116(C)(10), and (3) Dykema and Ferroli’s contention that a
litigation privilege entitles them to judgment as a matter of law. We similarly decline to address
these additional issues raised by defendants on which the circuit court reserved ruling. People v
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Herrick, 277 Mich App 255, 259; 744 NW2d 370 (2007) (observing that generally appellate
review is limited to issues decided by the trial court).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Cynthia Diane Stephens
/s/ Michael J. Kelly
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