Planting GPS Device On Car Not Enough for Invasion of Privacy Claim – IL Fed Court

Troeckler v. Zeiser, 2015 WL 1042187, a recent Southern District of Illinois case, examines this question adapted to a plaintiff’s intrusion on seclusion claim filed against her ex-husband – the defendant who, with some help, secretly affixed a GPS device (a “black box”) to the plaintiff’s car.

The defendant’s two principal acts giving rise to plaintiff’s suit were (1) installing the GPS device; and (2) repeatedly trying to log-in to the plaintiff’s personal email, computer and cell phone accounts.  Plaintiff sued for invasion of privacy/intrusion on seclusion (the “Intrusion Claim”) and conspiracy against the ex-husband and the people he hired to install the device and log in to plaintiff’s e-mail.

The defendant moved to dismiss all claims and the Court dismissed some claims and sustained others.

On the Intrusion Claim, the court noted that in Illinois, intrusion on seclusion is a species of the invasion of privacy tort.  To make out a valid invasion of privacy claim in Illinois, a plaintiff must demonstrate (1) an unauthorized intrusion or prying into the plaintiff’s seclusion; (2) an intrusion that is offensive or objectionable to a reasonable person, (3) the matter upon which the intrusion occurs is private; and (4) the intrusion causes anguish and suffering.

Element (3) – the intrusion involves something that is private – generates the most litigation.  Case examples of private matters include poking holes in a bathroom ceiling and installing hidden cameras in a doctor’s examination room.  Conversely, private facts contained in public records (name, address, SS #, e.g.) do not satisfy the privacy element.

The court looked to a New Jersey case for guidance as to whether installing a GPS device was actionable intrusion on seclusion.  The New Jersey court in Villanova v. Innovative Investigations, Inc., 21 A.3d 650 (N.J.App.Ct 2001) held that a defendant who surreptitiously placed a GPS monitor on her ex-husband’s car (to see if he was cheating on her) was not an invasion of privacy where there was no evidence the defendant drove his car into a private or secluded location.

Following the reasoning of the NJ case, the Troeckler court dismissed the plaintiff’s Intrusion Claim since the plaintiff failed to allege that she drove her car somewhere in which she had a reasonable expectation of privacy.

The plaintiff fared better on the Intrusion Claim as it pertained to the defendant hacking into her private email accounts.  The court found that for purposes of a motion to dismiss, the plaintiff did sufficiently allege a claim for invasion of privacy based solely on the e-mail allegations.

The plaintiff won and lost parts of her conspiracy claim against her ex and the various people he enlisted to help him install the GPS device and breach the plaintiff’s emails accounts.  Civil conspiracy requires concerted action and an underlying wrongful act.  Since the plaintiff failed to establish invasion of privacy on her Intrusion Claim, there was no predicate tort for the conspiracy.

The result was different with respect to the e-mail hacking though.  Since logging in to the plaintiff’s private accounts was a possible invasion of privacy (at least at the early pleading stage), the conspiracy claim survived as it related to the e-mail claims.

Afterwords:

1/A defendant’s unauthorized hacking into a plaintiff’s private email accounts can underlie an intrusion on seclusion/invasion of privacy claim;

2/ In the context of installing a monitoring device on someone’s car, the privacy tort is applied literally: if the plaintiff doesn’t show that she drove somewhere private or “secluded,” invasion of privacy isn’t the proper cause of action to assert.  With the benefit hindsight, the plaintiff probably should have pled a violation of the civil stalking statute based on the defendant’s GPS installation.

Plaintiff Loses Bid to Repossess Dog Gifted to Ex: Illinois Replevin, Personal Property and Gift Law Basics

Koerner v. Nielsen, 2014 IL App (1st) considers the parameters of an inter vivos gift (a gift made during a giver’s lifetime) as they pertain to the question of who owns a dog after the break-up of a romantic relationship.

The plaintiff gave her then-boyfriend (the defendant) a dog (a Stig) for Christmas.  About fourteen months later, the parties’ broke up and the defendant moved out, taking the dog with him.  Plaintiff filed a replevin suit to get the dog back.

A two-day bench trial culminated in a judgment for the defendant. Plaintiff appealed.

Held: Affirmed.  Plaintiff made a gift of the dog to the defendant, defendant accepted the gift, and plaintiff failed to show that the gift was revoked.

Under Illinois personal property and gift law, where a defendant asserts that he owns something based on a gift from a plaintiff, he must prove, by clear and convincing evidence, donative intent: that the owner departed with “exclusive dominion and control over the subject of the gift” and delivered the property to the donee (the party claiming he is the gift’s recipient).

Donative intent is determined at the time of the transfer of property, and is based on what was done or said at the time of transfer, not at some later date.  The delivery element of a gift is satisfied where the parties live together (like here).

A gift in contemplation of marriage (e.g. an engagement ring) is a conditional gift.  If the condition (the marriage) never materializes, the property reverts back to the gifting party.

The court rejected plaintiff’s argument that she never delivered the dog to the defendant.  The plaintiff claimed that since she maintained insurance on the dog at all times and was listed as the owner on the dog’s registration papers, she never relinquished control of the dog.

The court found “documentary title is not conclusive of ownership” and noted that all that is required is that the donor part with exclusive dominion and control.

Since the plaintiff could point to no evidence that showed the gift of the dog to defendant was conditional on a later marriage or continuing the relationship, the court found that the defendant conclusively established that the dog was an unconditional gift to him and that he was the rightful owner.

Take-away:  This case is post-worthy for its discussion of a somewhat arcane legal topic (in the sense that inter vivos gifts are not often the subject of published opinions) in a commonplace fact setting.

The case holds practical relevance for lawyers and non-lawyers alike as it highlights the potential complications that arise when romantic cohabitants break up and there is no formal marital union to neatly divide their personal property upon dissolution.

Apparent Agency Questions Defeat Summary Judgment in Guaranty Dispute – IL ND

The Northern District of Illinois recently examined the nature of apparent agency liability in the context of a breach of guaranty dispute involving related limited liability companies (LLCs).  The plaintiff in Hepp v. Ultra Green Energy Services, LLC, 2015 WL 1952685 (N.D.Ill. 2015) sued to enforce a written guaranty signed by the defendant company in connection with a $250K-plus promissory note signed by a company owned by the defendant’s managing member.

The court denied the plaintiff’s summary judgment motion.  It found there were material and triable fact issues as to whether the person signing the guaranty had legal authority to do so.

The court first addressed whether the guaranty was supported by consideration.  Consideration is “bargained-for exchange” where the promisor receives something of benefit (or the promisee suffers detriment) in exchange for the promise.  A guaranty’s boiler-plate provision that says “For Value Received” creates a presumption (but one that can be rebutted) of valid consideration.

Where the guaranty is signed at the same time as the underlying note, the consideration for the note transfers to the guaranty.  But where the guaranty is signed after the note, additional consideration (beyond the underlying loan) needs to flow to the guarantor.  A payee’s agreement to forbear from suing can be sufficient consideration.

Here, the plaintiff agreed to extend the deadline for repayment of the note by thirty days.  According to the court, this was sufficient consideration for the plaintiff to enforce the guaranty.  **3-4.

Next, the court shifted to its agency analysis and considered whether the LLC manager who signed the guaranty had authority to bind the LLC.  Answer – maybe not.

Apparent agency arises where (1) the principal or agent acts in a manner that would lead a reasonable person to believe the actor is an agent of the principal, (2) the principal knowingly acquiesces to the acts of the agent, and (3) the plaintiff reasonably relies on the acts of the purported agent.

When considering whether a plaintiff has shown apparent agency, the focus is on the acts of the principal (here, the LLC), and whether the principal took actions that could reasonably lead a third party to believe the agent is authorized to perform the act in question (here, signing the guaranty on the LLC’s behalf).

The scope of an apparent agent’s authority is determined by the authority that a reasonable person might believe the agent has based on the principal’s actions.  Also, a third party dealing with an agent has an obligation to verify the fact and extent of an agent’s authority.  **5-6.

The court found there material questions of disputed fact as to whether the plaintiff reasonably relied on the LLC manager’s representation that he had authority to sign the guaranty for the LLC.  The court noted that this was an unusual transaction that was beyond the ordinary course of the LLC’s business (since it implicated a possible conflict of interest (the manager who signed the guaranty was an officer of the corporate borrower) and it resulted in a pledge of the LLC’s assets), and culminated in the LLC taking on another $125,000 in debt in exchange for a short repayment time extension.  * 7.

The anomalous nature of the transaction coupled with the affidavit testimony of several LLC members who said they had no knowledge of the manager signing the guaranty, created too many unresolved facts to be decided on summary judgment.

Take-aways:

1/ A guaranty signed after the underlying note requires additional consideration running to the guarantor;

2/ Great care should go into drafting an Operating Agreement (OA).  Here, because the OA specifically catalogued numerous actions that required unanimous written consent of all members, the LLC defendant had ammunition to avoid the plaintiff’s summary judgment motion.