                          NO. 4-06-0296         Filed 1/9/07

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

JAMES BURNS, Jr.,                           )   Appeal from
          Plaintiff-Appellant,              )   Circuit Court of
          v.                                )   Macon County
MASTERBRAND CABINETS, INC.,                 )   No. 04L173
a Delaware Corporation; GALLAGHER           )
BASSETT SERVICES, INC.; a Delaware          )
Corporation; METRO PRIVATE                  )
INVESTIGATIONS, INC., an Alabama            )   Honorable
Corporation; and JOHN T. KENNEDY III,       )   Katherine M. McCarthy,
          Defendants-Appellees.             )   Judge Presiding.


          JUSTICE MYERSCOUGH delivered the opinion of the court:

          On March 9, 2006, the trial court granted the section

2-615 (735 ILCS 5/2-615 (West 2004)) motion of defendant

Masterbrand Cabinets, Inc. (Masterbrand), to dismiss plaintiff

James Burns, Jr.’s complaint alleging Masterbrand committed the

tort of intrusion upon seclusion of another.    Earlier, on November

18, 2005, the court had already granted section 2-615 motions to

dismiss the counts against defendants Gallagher Bassett Services,

Inc. (Gallagher); Metro Private Investigations, Inc. (Metro); and

John T. Kennedy alleging intrusion upon seclusion.    Plaintiff

appeals the court’s orders dismissing his allegations of intrusion

upon seclusion for failure to state a claim.    Plaintiff argues

that, although this court has yet to expressly recognize the tort

of intrusion upon seclusion, the tort constitutes a cause of

action in Illinois.   We agree with plaintiff and reverse and
remand this case for further proceedings.

                             I. BACKGROUND

            On November 12, 2004, plaintiff filed a complaint in

the circuit court of Macon County alleging that on April 3, 2000,

plaintiff sustained a work injury to his thoracic spine while

stacking wood onto a cart as part of his employment at

Masterbrand.    Plaintiff filed a claim with the Illinois Industrial

Commission for workers’ compensation.    Masterbrand retained the

services of codefendant Gallagher to adjust the claim and manage

the litigation related to plaintiff’s workers' compensation case.

            Plaintiff alleges that prior to November 12, 2005,

Gallagher retained codefendant Metro to perform personal

surveillance of plaintiff.    On November 13, 2002, an employee of

Metro, Kennedy, approached plaintiff’s mobile home and sought

entry into his home under the false pretense that he was looking

for a missing juvenile.    Plaintiff alleged that Kennedy was

holding the picture of a young girl when he approached his home.

Once inside, plaintiff alleges that Kennedy asked him questions

about the missing juvenile.

            Kennedy used a hidden camera in a fanny pack to record

plaintiff’s movement and conversation while plaintiff was inside

his home.    Kennedy later filed an affidavit stating that the

recording device did not record the conversation he had with

plaintiff, only the visual interaction.      On December 17, 2002,


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Kennedy testified in plaintiff’s workers’ compensation case with

regard to plaintiff’s physical limitations.     The entry into

plaintiff’s home was the basis for Kennedy’s testimony.     Plaintiff

alleges that Kennedy admitted under oath at a prior arbitration

hearing that he used a false story regarding a missing juvenile to

gain access to plaintiff’s home.

          Plaintiff alleges the intrusion was highly offensive

and that he sustained anguish and suffering as a direct and

proximate cause of Kennedy’s entrance into his home.

          On November 18, 2005, the trial court granted

defendants’ Gallagher, Metro, and Kennedy’s section 2-615 motion

to dismiss the counts in plaintiff’s complaint alleging defendants

committed the tort of intrusion upon seclusion of another. The

trial court’s docket entry granting these three defendants’ motion

to dismiss stated as follows:

               "At the outset it should be noted that

          the Illinois Supreme Court has never

          specifically recognized a cause of action for

          intrusion into seclusion.     In fact, the

          Supreme Court in Lovgren, specifically stated

          that its holding in that case did not imply a

          recognition of the cause of action by the

          [c]ourt.   Following that decision, there has

          been a split in the [a]ppellate [c]ourt


                                - 3 -
           [d]istricts concerning this cause of action.

           Interesting enough, all districts now seem to

           recognize this cause of action EXCEPT the

           Fourth District (Bureau of Credit Control v.

           Scott, 36 Ill. App. 3d 852 (4th [Dist.] ,

           1976)).   Although the Fourth District is now

           the only district which does not recognize

           this branch of privacy law, this [c]ourt is

           compelled to follow its rulings.

           Consequently, the [c]ourt GRANTS the

           [d]efendants’ [m]otion to [d]ismiss [c]ounts

           II, III[,] and IV pursuant to [s]ection 2-615

           of the Code of Civil Procedure for failure to

           state a cause of action since it is based

           upon the [p]laintiff’s alleged right."

           Defendant Masterbrand was not a party to the motion to

dismiss.   On March 9, 2006, the trial court granted plaintiff

leave to amend his complaint and add three additional counts

alleging violations of the eavesdropping statute contained in the

Criminal Code of 1961 (720 ILCS 5/14-1 through 14-9 (West 2004)).

The court then granted defendant Masterbrand’s section 2-615

motion to dismiss, stating, as it had done earlier in granting the

other three defendants’ motion, that this appellate district court

does not recognize intrusion upon seclusion as a cause of action.


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The court also made clear that it was dismissing all four counts

of intrusion upon seclusion (one against each defendant) with

prejudice.   The court stated, "[Y]our appeal of right starts now.

So that [c]ounts 2, 3, and 4, are hereby dismissed with prejudice

as well.   Then no just reason for delay or enforcement of said

order."    The docket entry also states, "No just reason for delay

or enforcement of said [o]rder."

           On April 10, 2006, plaintiff filed a notice of appeal,

stating that pursuant to Supreme Court Rule 301 (155 Ill. 2d R.

301) he was appealing the trial court’s order dismissing with

prejudice counts I through IV of his complaint.   Also on April 10,

2006, plaintiff filed a motion to voluntarily dismiss counts V

through VII of his complaint, which alleged violations of the

eavesdropping statute.   Although plaintiff’s motion requests the

counts be dismissed pursuant to section 2-1008 (735 ILCS 5/2-1008

(West 2004)), which provides for the substitution of parties, the

plaintiff’s motion must be a request under section 2-1009 (735

ILCS 5/2-1009 (West 2004)), which provides for voluntary

dismissal.   On April 24, 2006, the court granted plaintiff’s

motion to dismiss counts V through VII without prejudice.   The

jurisdictional statement in plaintiff’s appeal states that this

court has jurisdiction to hear this appeal pursuant to Supreme

Court Rules 301 and 304(a).   155 Ill. 2d R. 301; 210 Ill. 2d R.

304(a).    We review this case under our authority in Supreme Court


                                - 5 -
Rules 301 and 304(a).

                             II. ANALYSIS

            We review de novo an appeal from a motion to dismiss

pursuant to section 2-615 of the Code of Civil Procedure.

Beahringer v. Page, 204 Ill. 2d 363, 369, 789 N.E.2d 1216, 1221

(2003).   The trial court dismissed plaintiff’s complaint that

alleged defendants committed the tort of intrusion upon seclusion

of another.    The court’s order states that the court is compelled

to follow the Fourth District’s opinion in Scott, 36 Ill. App. 3d

1006, 345 N.E.2d 37, in which this court refused to recognize the

tort of intrusion upon seclusion.

            We recognize that the trial court was put in the

awkward position of conflicting appellate authority regarding

whether a cause of action for intrusion upon seclusion exists in

Illinois.    On one hand, this district has refused to recognize the

tort in Scott, 36 Ill. App. 3d 1006, 345 N.E.2d 37, and Hall v.

InPhoto Surveillance Co., 271 Ill. App. 3d 852, 649 N.E.2d 83

(1995).   However, a close examination of the relevant case law

reveals that a uniform result among the other four districts

supports the conclusion that the tort of intrusion upon seclusion

is actionable in Illinois.    All other districts are unanimous in

recognizing this tort.    And although the appellate court in

Illinois is a single entity (People v. Layhew, 139 Ill. 2d 476,

489, 564 N.E.2d 1232, 1238 (1990)), the supreme court has held


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that, "[W]hen conflicts arise amongst the districts, the circuit

court is bound by the decisions of the appellate court of the

district in which it sits."     Aleckson v. Village of Round Lake

Park, 176 Ill. 2d 82, 92, 679 N.E.2d 1224, 1229 (1997), citing

State Farm Fire & Casualty Co. v. Yapejian, 152 Ill. 2d 533,

539-40, 605 N.E.2d 539, 542 (1992).

            Now, in keeping with the other districts, this court

expressly recognizes that the tort of intrusion upon seclusion is

actionable in Illinois.   This district has addressed the tort

twice.   First, in 1976 the court heard Scott, in which Peggy Scott

filed a complaint against a credit company for placing at least 15

harassing phone calls to her at home, work, and her parents’ home

during the first three weeks of August 1976.     Scott, 36 Ill. App.

3d at 1007, 345 N.E.2d at 38.    Scott claimed that during these

phone calls, the bureau’s agent shouted at her, called her "a

deadbeat," criticized her moral character, threatened court

action, and threatened to continue the phone calls until the debt

was paid.    Scott, 36 Ill. App. 3d at 1007, 345 N.E.2d at 38.

Scott claimed that the calls continued despite her demands for the

calls to stop.    Scott, 36 Ill. App. 3d at 1007, 345 N.E.2d at 38.

Scott claimed that the phone calls caused her a loss of sleep, a

loss of appetite, and headaches for which she sought medical

attention.    Scott, 36 Ill. App. 3d at 1007, 345 N.E.2d at 38.

            This court was faced with the question of whether Scott


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had filed a legally sufficient complaint.      Scott, 36 Ill. App. 3d

at 1007, 345 N.E.2d at 39.   This court held that Scott had alleged

a sufficient claim for the tort of intentional infliction of

emotional distress in count I of her complaint and that the

remaining counts in her petition were dismissed.     Scott, 36 Ill.

App. 3d at 1008-09, 345 N.E.2d at 39-40.     The court stated:

               "It would unduly prolong this opinion to

          discuss all of the Illinois cases in which

          plaintiffs have sought to establish remedies

          similar to, or identical with, those sought

          [in the additional counts, which included

          intrusion upon seclusion].    It appears that a

          cause of action for invasion of privacy may

          be stated for unauthorized use of an

          individual’s name or likeness for commercial

          purposes.   [Citations.]   ***   We are aware of

          no other Illinois cases upholding a complaint

          alleging invasion of privacy.     In this case,

          we see no need to create additional remedies.

          Scott has a remedy under [c]ount I of the

          counterclaim."   (Emphasis added.)    Scott, 36

          Ill. App. 3d at 1008-09, 345 N.E.2d at 40.

          Our court again revisited the issue in 1995 in Hall,

271 Ill. App. 3d 852, 649 N.E.2d 83.    In Hall, we refused to


                               - 8 -
decide whether to recognize the tort of intrusion upon seclusion

because the plaintiff failed to allege facts that would satisfy

the four elements of the tort.    Hall, 271 Ill. App. 3d at 855, 649

N.E.2d at 85.   This court has not addressed the issue in a

published opinion since Hall.

          However, since our decision in Scott, all four of the

other appellate districts in the state have explicitly recognized

that a cause of action exists for the tort of intrusion upon

seclusion.   See Melvin v. Burling, 141 Ill. App. 3d 786, 490

N.E.2d 1011 (1986) (Third District); Davis v. Temple, 284 Ill.

App. 3d 983, 673 N.E.2d 737 (1996) (Fifth District); Benitez v.

KFC National Management Co., 305 Ill. App. 3d 1027, 714 N.E.2d

1002 (1999) (Second District); Johnson v. K Mart Corp., 311 Ill.

App. 3d 573, 723 N.E.2d 1192 (2000) (First District); Schmidt v.

Ameritech Illinois, 329 Ill. App. 3d 1020, 768 N.E.2d 303 (2002)

(First District).

          Although the Supreme Court of Illinois often resolves

conflict among the appellate districts, the supreme court has not

expressly addressed whether the tort of intrusion upon seclusion

is actionable in Illinois.    In Lovgren v. Citizens First National

Bank of Princeton, 126 Ill. 2d 411, 534 N.E.2d 987 (1989), the

supreme court refused to decide whether to recognize the tort,

saying that, in any case, the plaintiff in Lovgren did not satisfy

the elements of the tort.    The court’s opinion also expressly


                                 - 9 -
stated that its discussion of intrusion upon seclusion does not

imply the court’s recognition that the tort constitutes a cause of

action in Illinois.   Lovgren, 126 Ill.2d at 417, 534 N.E.2d at

989.   However, Valley Forge Insurance Co. v. Swiderski

Electronics, Inc., No. 101261, slip op. at 12 (November 30, 2006),

___ Ill. 2d ___, ___, ___ N.E.2d ___, ___, the court noted that

Black’s Law Dictionary’s definition of "right of privacy" "refers

the reader to the entry for 'invasion of privacy,' which is

defined as '[a]n unjustified exploitation of one's personality or

intrusion into one's personal activities' and includes 'invasion

of privacy by intrusion' ***.    [Citation.]   [Invasion of privacy

by intrusion is] defined as '[a]n offensive, intentional

interference with a person's seclusion or private affairs' ***.

[Citation.]   In addition, Webster's defines 'privacy' as 'the

quality or state of being apart from the company or observation of

others: seclusion.' [Citation]."

           The Valley Forge court further stated as follows:

                "These definitions confirm that 'right

           of privacy' connotes *** an interest in

           seclusion ***. Accordingly, the policy

           language 'material that violates a person's

           right of privacy' can reasonably be

           understood to refer to material that violates

           a person's seclusion."   Valley Forge, slip


                                - 10 -
          op. at 12, __ Ill. 2d at __, __ N.E.2d at __.

          In the case sub judice, plaintiff has alleged the four

elements of the tort set forth in Melvin: (1) an unauthorized

intrusion or prying into the plaintiff’s seclusion, (2) the

intrusion must be offensive or objectionable to a reasonable man,

(3) the matter upon which the intrusion occurs must be private,

and (4) the intrusion causes anguish and suffering.   Melvin, 141

Ill. App. 3d at 789, 490 N.E.2d at 1013-14, citing W. Prosser,

Torts §112, at 832-34 (3d ed. 1964); see also W. Keeton, Prosser

and Keeton on Torts §117, at 854-67 (5th ed. 1984).   We also

acknowledge the Restatement’s definition, which says, "One who

intentionally intrudes, physically or otherwise, upon the solitude

or seclusion of another or his private affairs or concerns, is

subject to liability to the other for invasion of his privacy, if

the intrusion would be highly offensive to a reasonable person."

Restatement (Second) of Torts §652B, at 378 (1977).

          Finally, codefendants Gallagher and Masterbrand’s

arguments regarding vicarious liability are also not properly

before this court.   Plaintiff appeals from the trial court’s

ruling dismissing his complaint for failure to state a cause of

action.   The appeal is before this court pursuant to Supreme Court

Rules 301 and Rule 304(a).   Rule 301 provides for appeals from

final orders of the trial court, and Rule 304(a) provides for

appeals from final judgments that do not dispose of all the claims


                              - 11 -
pending in the court.   The trial court made no findings and issued

no final and appealable order regarding codefendants’ liability.

Therefore, issues of vicarious liability are not ripe for review

at this time.

                           III. CONCLUSION

          Based on the foregoing reasons, we reverse the trial

court’s order granting defendants’ motions to dismiss and remand

for further proceedings.

          Reversed and remanded.

          STEIGMANN, P.J., and COOK, J., concur.




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