concurring in part, dissenting in part.
I concur to affirm the dismissal of plaintiffs’ invasion of privacy claim. The dismissal of plaintiffs’ civil trespass claim and consequently, their unfair or deceptive practices and punitive damages claims should be reversed. I respectfully dissent.
I. Civil Trespass
The majority’s opinion holds defendants did not make an “ ‘unauthorized entry’ of the kind to support the tort of trespass” because “the entry complained of was not of the kind that interfered with plaintiffs’ ownership or possession of the land.” I disagree.
In the bundle of rights that define private property, the greatest stick in the bundle is exclusivity of possession. Exclusivity of possession is the basis that permits the landowner to exclude anyone from his or her property. Hildebrand v. Telegraph Co., 219 N.C. 402, 408, 14 S.E.2d 252, 256 (1941) (“The word ‘property’ extends to every aspect of right and interest capable of being enjoyed as such upon *292which it is practicable to place a money value. The term comprehends not only the thing possessed but also, in strict legal parlance, means the right of the owner to the land; the right to possess, use, enjoy and dispose of it, and the corresponding right to exclude others from its use.”). This exclusivity of possession is the basis for civil and criminal trespass. Id.
“The elements of trespass to real property are: (1) possession of the property by the plaintiff when the alleged trespass was committed; (2) an unauthorized entry by the defendant; and (3) damage to the plaintiff from the trespass.” Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 32, 588 S.E.2d 20, 29 (2003) (citing Kuykendall v. Turner, 61 N.C. App. 638, 642, 301 S.E.2d 715, 718 (1983)). Consent is defined as an “[ajgreement, approval, or permission as to some act or purpose, esp. given voluntarily by a competent person....” Black’s Law Dictionary (8th ed. 2004). “Consent to a trespass which is obtained as the result of duress, fraud, or mistake is ineffective to establish a defense to an action for trespass to land.” William S. Haynes, North Carolina Tort Law § 28-5 (1989).
Prior precedents have addressed the issue of whether obtaining consent to enter property obtained by fraud revokes consent, and the entry on another’s property becomes unauthorized in a civil trespass case. Our Supreme Court has held consent to enter the lands of another is conditional, not absolute, and can be revoked by subsequent acts or be void ab initio. “One who enters upon the land of another with the consent of the possessor may, by his subsequent wrongful act in excess or abuse of his authority to enter, become liable in damages as a trespasser.” Blackwood v. Cates, 297 N.C. 163, 167, 254 S.E.2d 7, 9 (1979) (defendants did not engage in a voluntary act to invalidate their perceived consent to be on the plaintiffs’ property) (quoting Smith v. VonCannon, 283 N.C. 656, 660, 197 S.E.2d 524, 528 (1973)). In Smith, our Supreme Court held, “[w]e perceive no basis for a distinction between an involuntary intrusion upon the land of another and an involuntary exceeding of the landowner’s assent to the original entry . . . .” 283 N.C. at 661, 197 S.E.2d at 528.
The majority’s opinion asserts Broughton v. McClatchy Newspapers, Inc., controls its result here. 161 N.C. App. 20, 588 S.E.2d 20 (2003). In Broughton, the plaintiff alleged the reporter misrepresented the purpose of a visit, stating her visit to plaintiff’s home was a “social call” when in fact, the visit was to gather intelligence for a subsequent negative article about the plaintiff and her divorce. Id. at 32, 588 S.E.2d at 29. This Court held the plaintiff failed to show or *293allege the reporter was an unauthorized trespasser when the plaintiff engaged in “social” conversation on the front porch of her home, and plaintiff did not ask the reporter to leave her property. Id. at 33, 588 S.E.2d at 29. Here, plaintiffs, alleged in their complaint defendant’s entry was unauthorized. As N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003) provides, summary judgment shall be rendered if “there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” The issue of consent is a question for the jury.
The majority’s opinion further cites Food Lion, Inc. v. Capital Cities/ABC, Inc., as persuasive authority to support its notion that consent procured by fraud is not void or voidable. 194 F.3d 505, 517 (4th Cir. 1999) (adopting the Seventh Circuit’s reasoning in Desnick v. American Broadcasting Companies, Inc., 44 F.3d 1345 (1995)).
The Fourth Circuit recognized:
the various jurisdictions and authorities in this country are not of one mind in dealing with the issue. Compare Restatement (Second) of Torts, § 892B(2) (1965) (“if the person consenting to the conduct of another ... is induced [to consent] by the other’s misrepresentation, the consent is not effective for the unexpected invasion or harm”) and Shiffman v. Empire Blue Cross and Blue Shield, 256 A.D.2d 131, 681 N.Y.S.2d 511, 512 (App. Div. 1998) (reporter who gained entry to medical office by posing as potential patient using false identification and insurance cards could not assert consent as defense to trespass claim “since consent obtained by misrepresentation or fraud is invalid”), with Desnick, 44 F.3d at 1351-53 (ABC agents with concealed cameras who obtained consent to enter an ophthalmic clinic by pretending to be patients were not trespassers because, among other things, they “entered offices open to anyone”); Baugh v. CBS, Inc., 828 F. Supp. 745, 757 (N.D. Cal. 1993) (“where consent was fraudulently induced, but consent was nonetheless given, plaintiff has no claim for trespass”); and Martin v. Fidelity & Cas. Co. of New York, 421 So.2d 109, 111 (Ala. 1982) (consent to enter is valid “even though consent may have been given under a mistake of facts, or procured by fraiid”) (citation omitted).
Id.
In Food Lion, Inc., ABC reporters falsified job applications with misrepresented identities and references to secure employment at *294Food Lion. 194 F.3d at 510. These applications failed to mention their concurrent employment with ABC. Id. The reporters used their positions as purported Food Lion employees to gain access to areas and information not available to the public. Id. at 510-11. The court affirmed the lower court’s decision, holding Food Lion showed a trespass, not by misrepresentation, but by the breach of their duty of loyalty “triggered by the filming in non-public areas, which was adverse to Food Lion — was a wrongful act in excess of [the reporters’] authority to enter Food Lion’s premises as employees.” Id. at 518 (citing Blackwood, 297 N.C. at 167, 254 S.E.2d at 9 (finding liability for trespass when activity on property exceeded scope of consent to enter)). Food Lion’s consent for the reporters to enter or remain on the property was “nullified when they tortiously breached their duty of loyalty to Food Lion.” Id. at 519. Here, defendant falsely told plaintiff he was a prospective client to gain entry to his private office, remained after being asked, and specifically denied he worked for defendant while he secretly taped the conversation without plaintiff’s knowledge or consent. The holding in Food Lion supports plaintiffs’ trespass claim here.
In Desnick v. American Broadcasting Companies, Inc., an ABC producer obtained permission from Dr. Desnick to film his offices for a news report after he falsely promised Dr. Desnick the report would be “fair and balanced,” contain no “undercover surveillance,” or involve “ambush interviews.” 44 F.3d 1345, 1348. Subsequently, ABC investigators posed as test patients requesting eye examinations. Id. When the news report aired, it alleged Dr. Desnick tampered with equipment to obtain skewed results and recommended unnecessary surgeries. Id. at 1348-49. The Seventh Circuit explained, “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).” Id. at 1352 (emphasis supplied). The court also recognized and cited Rockwell Graphic Systems, Inc. v. DEV Industries, Inc., 925 F.2d 174, 178 (7th Cir. 1991), which held, “if a competitor gained entry to a business firm’s premises posing as a customer but in fact hoping to steal the firm’s trade secrets” the business owner’s consent would be void and the trespasser would be liable. Id. Plaintiff Nakell’s private law office is not “offices that were open to anyone.” Id.
In Medical Laboratory Management v. American Broadcasting Companies, Inc., the United States District Court for Arizona held *295Desnick was not controlling or persuasive authority in the State of Arizona. 30 F. Supp. 2d 1182, 1203 (D. Ariz., 1998) (“[T]he conclusions reached in Desnick are not supported by the law in Arizona or the Ninth Circuit. . , If the person consenting to the conduct of another is induced to consent by . . . the other’s misrepresentation, the consent is not effective for the unexpected invasion or harm.” (quotation omitted)), aff’d, 306 F.3d 806 (9th Cir. 2002).
In Medical Laboratory Management, an employee of ABC telephoned the plaintiff and misrepresented she was a medical laboratory technician interested in opening a pap smear laboratory in the State of Georgia. 30 F. Supp. 2d at 1185. On that pretext, a meeting was scheduled. Id. The employee of ABC and a cameraman met and also toured the laboratory with the plaintiff and discussed costs, turn around time, and laboratory procedures. Id. ABC used the information obtained during the tour and meeting for a news report on frequent errors in pap smear testing. Id. at 1186.
In Shiffman v. Empire Blue Cross and Blue Shield, as here, a learned professional was fraudulently solicited for services. 256 A.D.2d 131, 131, 681 N.Y.S.2d 511, 511 (N.Y.A.D., 1998). The reporter misrepresented her identity and the purpose of her visit. Id. The court held, the “implied consent to enter the premises were legally insufficient since consent obtained by misrepresentation or fraud is invalid. ...” Id.
The holdings in Blackwood, Smith, Medical Laboratory Management, and Shiffman support the viability of plaintiffs’ trespass claims. Blackwood, 297 N.C. at 167, 254 S.E.2d at 9; Smith, 283 N.C. at 660, 197 S.E.2d at 528; Medical Laboratory Management, 30 F. Supp. 2d at 1203; Shiffman, 256 A.D.2d at 131, 681 N.Y.S.2d at 511. The facts in Broughton axe easily distinguishable and not controlling to those before us. 161 N.C. App. 20, 588 S.E.2d 20.
Here, defendant Johnson contacted plaintiff Nakell and posed as a potential client. Plaintiff scheduled an appointment for defendant to meet plaintiff at his law office located within his private residence. Defendant obtained consent to enter plaintiff’s private office that is not open to the general public and met with him on the pretext and false assertion that defendant was a dissatisfied customer of Amerlink seeking representation. See Shiffman, 256 A.D.2d at 131, 681 N.Y.S.2d at 511; Medical Laboratory Management, 30 F. Supp. 2d at 1203; c.f. Blackwood, 297 N.C. at 167, 254 S.E.2d at 9.
*296Defendant lied about the identity of his employer and about the purpose of the visit. When plaintiff Nakell directly asked defendant Johnson if he worked for defendant Amerlink, he again lied and answered in the negative. Defendant recorded the entire meeting without plaintiffs knowledge. Defendant’s sole purpose of seeking the office visit was an attempt to obtain plaintiff’s breach of the nondisclosure agreement so defendant could fraudulently avoid agreed payment thereunder.
Defendant’s conduct and assertions were fraudulent and deceitful. Plaintiff’s initial and subsequent consent were procured through defendant’s trickery and lies. Throughout defendant’s entire investigation, he fraudulently gained consent to enter plaintiff’s attorney’s property, to meet with plaintiff’s counsel, and with the intent to lure private information out of plaintiff and his attorney to avoid payment on his mediated settlement agreement. Plaintiff’s consent to enter and remain on plaintiff’s property was voided when plaintiff’s consent was derived from defendant’s repeated fraud and deceit. Blackwood, 297 N.C. at 167, 254 S.E.2d at 9 (quoting Smith, 283 N.C. at 660, 197 S.E.2d at 528). Without consent, plaintiff asserts a viable civil trespass claim. The majority’s opinion appears to agree that defendant had no consent to enter or remain on the property, but the majority’s opinion does not explain or cite any authority for its assertion that defendant’s unlawful and unauthorized entry was not “the kind to support the tort of trespass.”
IV. Conclusion
I concur with the majority’s opinion to dismiss plaintiff’s claim against defendants for invasion of privacy. Because plaintiff has asserted a viable civil trespass claim, plaintiff is also entitled to assert unfair and deceptive trade practices and punitive damages claims. Taha v. Thompson, 120 N.C. App. 697, 704, 463 S.E.2d 553, 558 (1995) (“Because we find sufficient evidence to submit the trespass ... to the jury, we conclude it would be error not to submit the factual issues underlying plaintiff’s unfair and deceptive trade practices claim as well.”), disc. rev. denied, 344 N.C. 443, 476 S.E.2d 130 (1996).
Plaintiff’s consent to enter and remain on his property was derived by defendant’s fraud or deceit and is void. I vote to reverse the trial court’s dismissal of plaintiff’s civil trespass, unfair and deceptive trade practices, and punitive damages claims. I respectfully dissent.