Dalley v. Dykema Gossett PLLC

In this action alleging several intentional torts, plaintiff, H. Scott Dailey, 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. Defen *300 dants Dykema Gossett EL.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 Dailey 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 paragraphs of the TRO directly relevant to plaintiffs present intentional tort action provide 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 Dailey, 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 Dailey, and all *301 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 plaintiffs computers. The events surrounding defendants’ entry into plaintiffs apartment and the copying of his computer data form the basis of the instant lawsuit.

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 *302 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 the means to generate 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, plaintiffs 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 slid under his door, and he read them after the men had departed. The papers included the TRO, which “completely blindsided” plaintiff. Soon thereafter, plaintiffs 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 plaintiffs 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 Ferro *303 li’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 plaintiffs machines and transferred “every bit of information on all [plaintiffs] computers and hard drives.” Only a “small percentage” of the information copied by the Guidance Software personnel related to Ellis, Lucasse, or Lincoln. The data transfer and copying process consumed 11 hours, during which 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 plaintiffs home, a Dykema attorney took plaintiffs deposition, urging him “to state on the record that he was suffering from AIDS[.]” As a result of 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 [plaintiffs] business.” According to the amended complaint, Lincoln bore vicarious liability for the conduct of Dykema, Ferroli, and Guidance Software, because these *304 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 plaintiffs claims pursuant to MCR 2.116(C)(8). Dykema, Ferroli and Guidance Software 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’ motions under (C)(8) and dismissed the entirety of plaintiffs complaint.

II. SUMMARY DISPOSITION ANALYSIS

A. STANDARD OF REVIEW

Plaintiff challenges the circuit court’s grant of summary disposition in favor of defendants 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 solely on the basis of the pleadings. Corley v Detroit Bd of Ed, 470 Mich 274, 277; 681 NW2d 342 (2004). 3 When deciding a motion under (C)(8), this Court accepts all well-pleaded factual allegations as *305 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).

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 Auto 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 plaintiffs claims in *306 more specific detail.” Rose v Wertheimer, 11 Mich App 401, 407; 161 NW2d 406 (1968); see also MCR 2.116(1) (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 William Prosser has identified a Michigan case, De May 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 R 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 plaintiffs 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 in favor of defendants of plaintiffs intrusion on 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 *307 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:

With respect to the plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs injuries.” Id. The investigators employed a variety of surveillance techniques, including observing the plaintiff through an open window with a 1,200-millimeter camera lens and posing as a process server “for the purpose of looking around plaintiffs home[.]” Id. at 233. The plaintiff brought an invasion of privacy action asserting an intrusion on his seclusion. Id.

This Court first determined that the plaintiff “can show an intrusion,” because “agents of defendants *308 entered plaintiffs home under false pretenses” and “the use of a powerful lens to observe the interior of a home or of a subterfuge to enter a home could be found objectionable to a reasonable person.” Id. 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 plaintiffs privacy interest in his home “was subject to the legitimate interest of his employer in investigating suspicions that plaintiffs 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 plaintiffs 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 plaintiffs 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 right whatsoever to enter or search plaintiffs apartment. 4 Regarding plaintiffs com *309 puters, 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 defendants’ copying authority beyond matters directly related to Lincoln.

Plaintiffs 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 plaintiffs *310 privacy “by intruding upon his seclusion or solitude and into his private affairs, and obtained access to [plaintiffs] 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 TKO in no way renders unenforceable plaintiffs 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 De May and this Court’s analysis in Lewis. The defendant in De May, a physician, set out on “a dark and stormy” night to attend to the plaintiff, a patient in labor. De May, 46 Mich at 162. Because Dr. De May “was sick and very much fatigued from overwork,” he asked a defendant, Alfred Scattergood, “a 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 plaintiffs home, Dr. De May told the plaintiffs husband, “ T 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 plaintiffs labor Scattergood sat facing a wall. Id. at 162,165. At one point, Dr. De May asked Scattergood to assist by holding the plaintiffs 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. De May deceived her into believing that Scattergood “was an assistant physician . . . .” Id. at 161.

*311 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.” Id. at 165-166. Notwithstanding that Scattergood and Dr. De May “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 De May in Lewis, a case that “involve[d] the surreptitious, nonconsensual videotaping of intimate acts of sexual relations in defendant[’s] .. . bedroom.” Lewis, 258 Mich App 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 *312 extent of waiver or consent granted, which depends on the facts and circumstances of the case.” Id. Because the evidence in Lewis could support the plaintiffs’ contention that the defendant had videotaped the plaintiffs without their knowledge or consent, this Court concluded that a factual question had existed on which reasonable minds could differ with respect to the scope of the plaintiffs’ consent to the taping.

The Court in Lewis characterized De May as illustrating that “[t]he deceitful presence of a medically unqualified, unnecessary person” exceeded the plaintiffs 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 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. [Quotation marks and citation omitted.]

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 plaintiffs home “under false pretenses.”

Here, plaintiffs 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 [plaintiffs] apartment to either take his computers and hard drives *313 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 De May and Lewis. As described in the amended complaint, the circumstances surrounding defendants’ entry into plaintiffs apartment and the copying of his computer hard drives reasonably suggest that defendants’ artifice and dishonesty enticed plaintiffs 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 plaintiffs premises by deceit, as in De May, or exceeded the scope of the consent plaintiff extended, as in Lewis and Earp.

Defendants lastly argue regarding the invasion of privacy count that plaintiffs complaint contains no facts supporting plaintiffs allegation 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 plaintiffs apartment under false pretenses and their disregard of his instructions about the location of the Lincoln-related information they desired could be found objectionable by a reasonable juror. Furthermore, “An action for intrusion upon se *314 elusion 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’s 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,., citing 3 Restatement Torts, 2d, § 652B, p 378.]

Therefore, irrespective of 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 plaintiffs seclusion.

In summary, because plaintiffs 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 plaintiffs 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 (1979), vacated in part on other grounds 407 Mich 936 (1979), and 2 Restatement Torts, 2d, § 210. Defendants suggest that because plaintiff refused to allow his computers to be taken *315 from 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; 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 provides 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 plaintiffs 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 plaintiffs 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 into plaintiffs apartment.

*316 Whether plaintiff consented to defendants’ entry into his apartment presents a more difficult question. Plaintiffs amended complaint avers that he allowed defendants to enter his apartment on the basis of 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, this Court considered a somewhat similar issue. The American Transmission plaintiffs sued a television station that had recorded the interactions between a decoy customer 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 . . . .” American Transmission, 239 Mich App at 699-700. This Court upheld the order granting summary disposition of the plaintiffs’ trespass claim in favor of the defendants, 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 plaintiffs’ transmission shop and videotaped a “professional discussion . . . .” Id. at 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.

In American Transmission, 239 Mich App at 708, this Court cited favorably a case decided by the United States Court of Appeals for the Seventh Circuit, *317 Desnick v American Broadcasting Cos, Inc, 44 F3d 1345 (CA 7, 1995). In Desnick, the Seventh Circuit, in an opinion authored by Chief Judge Richard Posner, rejected the contention 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