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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 266 SEPTEMBER TERM, 2004

PARREN J. MITCHELL v. BALTIMORE SUN COMPANY, WALTER F. ROCHE, JR., IVAN PENN

Kenney, Eyler, Deborah S., Thieme, Raymond G., (Retired, specially assigned) JJ.

Opinion by Kenney, J.

Filed: September 29, 2005

Parren J. Mitchell appeals the judgment of the Circuit Court for Baltimore City granting summary judgment to the Baltimore Sun Company, Walter F. Roche, Jr., and Ivan L. Penn (collectively, "appellees") on his claims of trespass, intrusion upon seclusion, and intentional infliction of emotional distress. He poses one

question, which we have reworded and recast as follows: I. Did the circuit court err in granting summary judgment on the trespass count? II. Did the circuit court err in granting summary judgment on the intrusion upon seclusion count? III. Did the circuit court err in granting summary judgment on the intentional infliction of emotional distress count? For the following reasons, we answer "yes" to questions one and two, and "no" to question three. FACTUAL AND PROCEDURAL BACKGROUND In early 2002, Walter F. Roche, Jr. and Ivan L. Penn, both reporters for the Baltimore Sun Company ("Baltimore Sun"), were informed that various bills incurred in the name of former Congressman Parren Mitchell were not being paid. Investigating

the report further, Roche and Penn discovered, through public documents, that several creditors had obtained judgments and liens against former Congressman Mitchell as a result of outstanding debts. Believing that news of the former

Congressman's financial difficulties was of interest to the public, Roche and Penn decided to write a news article on the matter.

They considered it important to their story to interview Congressman Mitchell. Aware that he was living at the Keswick

Multi-Care Center ("Keswick"), the reporters decided to visit him on May 29, 2002. Although they were also aware that he was

elderly and in failing health, neither reporter attempted to contact the Congressman, his family, or Keswick prior to their visit. On May 29, 2002, Roche and Penn arrived at Keswick at approximately 6:45 p.m., during regular visiting hours. Entering

the building, neither reporter saw signs stating: "SECURITY NOTICE All Visitors Must Report to Reception" or "NO TRESPASSING NO SOLICITING." Inside, Penn signed his name in a book at the

reception/security desk and wrote that he was visiting "Parren Mitchell." Roche did not sign the book, later stating that he thought it unnecessary for both he and Penn to sign in. While at the security/reception desk, the security person/receptionist did not instruct the reporters as to any sign-in procedure, did not ask them any questions, including their identities, and did not request Roche to sign in. Neither of the reporters informed the

person at the desk of the purpose of their visit, nor were they wearing anything to identify themselves as reporters. After passing the security/reception desk, Roche and Penn walked to Congressman Mitchell's room. According to them, the

door to his room was open and there was no sign on his door

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indicating that visitors were restricted from entering.

Standing

outside of Congressman Mitchell's room, Roche and Penn claimed that the Congressman had been speaking to his private duty nurse, Ella Simpson. entering. The reporters aver that, when they entered the room, the Congressman was sitting in his chair. They greeted him and identified themselves as reporters for the Baltimore Sun. They They waited for a lull in the conversation before

questioned the Congressman concerning bills that had not been paid and the recent purchase of a car by the Congressman's nephew, Michael Mitchell. Roche and Penn posit that Congressman

Mitchell was receptive to the interview and answered their questions. Additionally, at no time during the interview did

Simpson or any member of the Keswick staff ask the reporters to terminate the interview or leave the facility. That version of events is supported by the affidavit of Simpson, who was Congressman Mitchell's private duty nurse.1 According to Simpson, she was caring for the Congressman on May 29, 2002, between seven o'clock and eleven o'clock in the evening. At that time, there were no signs on the door

indicating that visitors were restricted from entering, and in the past, the Congressman regularly received unannounced

On June 14, 2004, after providing an affidavit in this case, Simpson was shot and killed in a domestic dispute. -3-

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visitors. Early that evening, Simpson recalled that, while she was present, two men entered Congressman Mitchell's room and identified themselves as reporters for the Baltimore Sun. According to Simpson, she remained for the entire ten-minute interview. She remembered that Congressman Mitchell was receptive to the reporters' questions and "[a]t no time during the reporters' visit did [Congressman] Mitchell ask the reporters to leave his room or ask me to escort them from his room." In the

past, Simpson recalled that, when the Congressman received unwelcome visitors, he would ask her to escort them out. At the conclusion of the interview, Simpson recalled that she thanked the reporters for coming and that the Congressman did not appear upset or agitated by the visit or the interview. Following Roche and Penn's departure, Simpson remembered that the Congressman called his nephew, Michael Mitchell. At Michael

Mitchell's request, the Congressman's vital signs were checked later that evening and they appeared normal. Congressman Mitchell's recollection of the events of the evening of May 29, 2002, is starkly different. According to the

Congressman, he was alone in his room lying on his bed and preparing to take a nap when Roche and Penn entered unannounced and began questioning him regarding unpaid bills. He could not

remember whether his door was open or closed at the time, but he assumed that it was closed "because he was taking a nap." He

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contends that the Baltimore Sun reporters did not identify themselves as such, but he "didn't have to ask them because when they told me why they were there, I knew that only one party was involved in that, and that was [t]he Sun Paper." He repeatedly

asked the men to leave his room, but when they did not comply, the Congressman answered their questions regarding the outstanding bills and recent car purchase by Michael Mitchell. In addition to asking questions, Congressman Mitchell asserts that one of the reporters looked through some files that he had in a filing cabinet, box, or on a desk near his bed. Shortly after the reporters began asking questions, Simpson came into the room. The Congressman recalled that at no time did

Simpson or anyone from Keswick request that Roche or Penn leave his room. Following the reporters' visit, Congressman Mitchell claims that he became "short of breath." He remembered, however, that

he did not call the nurse's station on his floor and that he was not examined by any of Keswick's medical staff following the reporters' visit. On June 7, 2002, Congressman Mitchell filed a lawsuit against the Baltimore Sun Company, Roche, and Penn in the Circuit Court for Baltimore City alleging Trespass (Count I), Intentional Infliction of Emotional Distress (Count II), and Invasion of Privacy/Intrusion Upon Seclusion (Count III). For relief,

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Congressman Mitchell sought $1,000,000 in damages for each Count and $750,000,000 in total punitive damages. Appellees timely filed an answer, and following extensive discovery, on February 2, 2004, appellees moved for summary judgment with regard to all of Congressman Mitchell's claims. A hearing was held in the circuit court on March 24, 2004. Ruling from the bench, the circuit court granted appellees' motion with regard to all counts. With regard to the trespass

count, the court found that there was no dispute of material fact that Congressman Mitchell answered the reporters' questions and that Simpson was present during the entire interview. Pursuant

to Machleder v. Diaz, 538 F. Supp. 1364 (S.D.N.Y. 1982), which the circuit court found controlling, the Congressman's responses and Simpson's acquiescence constituted consent to the reporters' presence and an affirmative defense to trespass. Concerning the

intrusion upon seclusion claim, the circuit court found that, because he voluntarily consented to answer the questions posed, Congressman Mitchell could not assert that the reporters' conduct was intrusive. Finally, with regard to the intentional

infliction of emotional distress count, the court concluded that the reporters' conduct did not rise to the required level of "shock[ing] the public conscious." The following day, the This timely appeal

circuit court issued an order to that effect. followed. STANDARD OF REVIEW

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Under Maryland Rule 2-501(f), a court "shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law." We review "a trial

court's grant of a motion for summary judgment de novo." Remsburg v. Montgomery, 376 Md. 568, 579, 831 A.2d 18 (2003). See also Todd v. Mass Trans. Admin., 373 Md. 149, 154, 816 A.2d 930 (2003); Beyer v. Morgan State Univ., 369 Md. 335, 359, 800 A.2d 707 (2002); Schmerling v. Injured Workers' Ins. Fund, 368 Md. 434, 443, 795 A.2d 715 (2002). "The trial court will not determine any disputed facts, but rather makes a ruling as a matter of law. The standard of appellate review, therefore, is

whether the trial court was legally correct." Williams v. Mayor of Baltimore, 359 Md. 101, 114, 753 A.2d 41 (2000) (internal citations omitted). When reviewing a grant of summary judgment, we first determine whether a genuine dispute of material fact exists "and only where such dispute is absent will we proceed to review determinations of law." Remsburg, 376 Md. at 579. "In so doing,

we construe the facts properly before the court, and any reasonable inferences that may be drawn from them, in the light most favorable to the non-moving party." Id. at 579-80.

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The Court of Appeals has held that general denials and proffered facts, lacking detail and precision, are insufficient to defeat a properly plead motion for summary judgment. Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737-38, 625 A.2d 1005 (1993) (citing Lynx, Inc. v. Ordnance Prods., Inc., 273 Md. 1, 78, 327 A.2d 502 (1974)). Instead, the party opposing a motion

for summary judgment must present facts that are detailed and admissible in evidence. Beatty, 330 Md. at 737-38. "[T]he mere

presence of a factual dispute in general will not render summary judgment improper." Remsburg, 376 Md. at 579. As the Court

explained in Lippert v. Jung, 366 Md. 221, 783 A.2d 206 (2001), "A dispute as to facts relating to grounds upon which the decision is not rested is not a dispute with respect to a material fact and such dispute does not prevent the entry of summary judgment." Id. at 227 (quoting Salisbury Beauty Schs. v.

State Bd. of Cosmetologists, 268 Md. 32, 40, 300 A.2d 367 (1973)) (emphasis in Lipppert). "Where the record shows that there was

no such genuine dispute as to any material fact necessary to resolve the controversy as a matter of law, and it is shown that the movant is entitled to judgment, the entry of summary judgment is proper." Lynx, 273 Md. at 8 (citing Selected Risks Ins. Co. v. Willis, 266 Md. 674, 296 A.2d 424 (1972)). "Finally, [i]n reviewing [the circuit court's] decision to grant a motion for summary judgment, we evaluate `the same -8-

material from the record and decide [] the same legal issues as the circuit court.'" Campbell v. Lake Hallowell Homewoner's

Ass'n, 157 Md. App. 504, 518-19, 852 A.2d 1029 (2004) (citations omitted). We "uphold the grant of a summary judgment only on the Id. at 519 (quoting

grounds relied on by the trial court."

Ashton v. Brown, 339 Md. 70, 80, 660 A.2d 447 (1995)). DISCUSSION I. We first consider Congressman Mitchell's contention that the circuit court erred in granting appellees' summary judgment on his trespass claim. A trespass is a tort involving "an

intentional or negligent intrusion upon or to the possessory interest in property of another." Ford v. Baltimore City Sheriff's Office, 149 Md. App. 107, 129, 814 A.2d 127 (2002). In

order to prevail on a cause of action for trespass, the plaintiff must establish: (1) an interference with a possessory interest in his property; (2) through the defendant's physical act or force against that property; (3) which was executed without his consent. Ford, 149 Md. App. at 129. (citing Richard J. Gilbert &

Paul T. Gilbert, Maryland Tort Law Handbook

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