AGV Sports Group, Inc. v. Protus IP Solutions, Inc.

³⁸⁹ BARBERA, J. We have before us a question of law certified by the United States District Court for the District of Maryland pursuant to the Maryland Uniform Certification of Questions of Law Act, Maryland Code (1973, 2006 Repl.Vol.), §§ 12-601 to 12-613 of the Courts and Judicial Proceedings Article. We are asked to decide whether the Maryland Telephone Consumer Protection Act (“MTCPA”), Maryland Code (1975, 2005 Repl.Vol.), §§ 14-3201 to 14-3202 of the Commercial Law Article (“CL”), is a statutory specialty as contemplated by Maryland Code (1974, 2006 Repl.Vol.), § 5-102(a)(6) of the Courts and Judicial Proceedings Article. If an action is such a specialty, § 5-102 provides that an action on it “shall be filed within 12 years after the cause of action accrues.... ” For the reasons that follow, we hold that the MTCPA is not a statutory specialty. I. We adopt the following facts set forth by the United States District Court for the District of Maryland. 1 Seven Plaintiffs, both individuals and corporations, have filed this action alleging violation of the federal Telephone Consumer Protection Act and the Maryland Telephone Consumer Protection Act.

Plaintiffs allege they received hundreds of unsolicited facsimile advertisements transmitted to their fax machines by the lone remaining Defendant, Protus IP Solutions, Inc. The advertisements promoted travel packages, health care discounts, toner, office equipment, life insurance, mortgages and other products and services. None of the Plaintiffs had a business relationship with Protus or the vendors whose advertisements appeared in the faxes, or had given prior consent to receive the “junk faxes.” ³⁹⁰ Plaintiffs allege Protus sent 882 unsolicited faxes to Plaintiffs since the effective date of the Maryland TCPA, some of which were sent over three years before the pending law suit was filed on December 17, 2008. The general statute of limitations in Maryland is three years under Courts and Judicial Proceedings (“CJP”) § 5-101, which is the default period that applies unless another limitations period is applicable. Section § 5-102 of the CJP creates a twelve year statute of limitations for a cause of action brought under a “specialty” statute____Plaintiffs contend that the Maryland TCPA is a specialty statute, and therefore that the appropriate limitations period in this case should be twelve years.

Defendants maintain that the Maryland TCPA is not a specialty and is therefore subject to the general three year limitations period, such that any faxes Protus sent over three years prior to Plaintiffs filing this cause of action are not properly at issue in this case. (Internal citations omitted). The District Court determined that the limitations issue generated by the above facts involves a question of unresolved Maryland law and, thus, should be decided by this Court. The District Court therefore was prompted to certify the following question to this Court: Is the Maryland Telephone Consumer Protection Act a statutory “specialty” law with a statute of limitations of twelve years pursuant to Maryland Courts and Judicial Proceedings § 5-102(a)(6)?

II

The MTCPA The MTCPA is entitled “Violations of certain federal laws and regulations prohibited” and declares in pertinent part: “A person may not violate ... [t]he Telephone Consumer Protection Act....” 2 The history of the MTCPA reflects ³⁹¹ that it was enacted “merely to enable a private right of action under the TCPA....” Worsham v. Ehrlich, 181 Md.App. 711, 730 , 957 A.2d 161, 172 (2008). The federal TCPA, 47 U.S.C. § 227 , and by implication, the MTCPA, seek to discourage and prevent unsolicited advertisements over the telephone lines. See, e.g., Portuguese American Leadership Council of the United States, Inc. v. Investors’Alert, Inc., 956 A.2d 671, 674 (D.C.2008) (explaining that the federal TCPA targets the “increased use of automated telephone equipment to make telephone calls in bulk and fax unsolicited advertisements that cross state lines and fall outside the regulatory jurisdiction of individual states”). The unsolicited sending of faxes is among the conduct prohibited by the federal TCPA.

See 47 U.S.C. § 227 (b)(1)(C), (b)(3) (2005) (making it unlawful, with limited exceptions, “to use any telephone facsimile machine ... to send, to a telephone facsimile machine, an unsolicited advertisement----”). The MTCPA, unlike certain other Maryland statutes, 3 does not declare a period within which an action brought under it must be filed. The limitations period for actions brought under the MTCPA, therefore, are governed by the relevant statute of limitations of the Courts and Judicial Proceedings Article (“CJP”). The parties in the case before the District Court, as we have noted, dispute the applicability to the MTCPA of the twelve-year limitations period for “specialties,” set forth in CJP § 5-102. ³⁹² In Maryland, the default rule, for limitations purposes 4 is that a “civil action at law shall be filed within three years from the date it accrues.” CJP § 5-101.

This limitations period reflects “a legislative judgment of what is deemed an adequate period of time in which a person of ordinary diligence should bring his action.” Philip Morris USA, Inc., v. Christensen, 394 Md. 227, 240 , 905 A.2d 340, 348 (2006) (quotation marks and citations omitted). The General Assembly, however, has legislated numerous exceptions to the three-year limitations period. See, e.g., CJP §§ 5-103 (adverse possession); 5-104 (public officer’s bond); 5-105 (assault, libel, or slander). The exception at issue here, set forth in CJP § 5-102, entitled “Specialties,” provides, in relevant part, as follows: (a) Twelve-year limitation.—An action on one of the following specialties shall be filed within 12 years after the cause of action accrues, or within 12 years from the date of the death of the last to die of the principal debtor or creditor, whichever is sooner: (1) Promissory note or other instrument under seal; (2) Bond except a public officer’s bond; (3) Judgment; (4) Recognizance; (5) Contract under seal; or (6) Any other specialty.

An action brought under the MTCPA is not included in CJP § 5-102(a)(l) through (5), leaving for us to decide only whether such action comes within the meaning of CJP § 5-102(a)(6), “[a]ny other specialty.” ³⁹³ Absent from the CJP § 5-102 is a definition of “[a]ny other specialty.” 5 To resolve whether an action under the MTCPA is a specialty, however, we do not write on a clean slate. Two recent decisions, Greene Tree Home Owners Ass’n v. Greene Tree Assocs., 358 Md. 453 , 749 A.2d 806 (2000), and Master Fin., Inc., v. Crowder, 409 Md. 51 , 972 A.2d 864 (2009), provide the analysis. In Greene Tree, we considered whether claims brought under Maryland’s Consumer Protection Act (“CPA”) 6 are based on a statutory specialty. The Petitioners in Greene Tree, who sought damages for alleged violations of the CPA that arose from the Respondents’ defective roof construction, challenged on appeal the ruling of the Circuit Court that the claims brought under the CPA do not constitute a specialty within the purview of CJP § 5-102(a)(6).

We observed that “attempts to identify a statutory specialty by defining the nexus between a claim and the statute at issue have led to complexities and, arguably, conflicting results.” Greene Tree, 358 Md. at 481-82, 749 A.2d at 821 . 7 We refrained from announcing in that case a specific definition of “[a]ny other specialty.” We satisfied ourselves with the explanation that statutory specialties “usually have involved an action of debt for a fixed or determinable sum.” Id., 749 A.2d at 821 . We ³⁹⁴ noted, too, that “the form of action of debt strongly indicates that a claim for unliquidated damages is not one based on a statutory specialty.” Id. at 476 , 749 A.2d at 818 . We found significant that CL § 13-408 of the CPA 8 authorizes litigants to “recover for injury or losses sustained ... as a result of’ violations of the CPA. We noted that such claims are “consistent with the types of claims embraced by CJP § 5-101 [the three-year limitations period],” for which “the fullness of time weighs heavily against the preservation of the evidence that frequently depends upon imperfect memory or informal writings----” Id. at 480, 749 A.2d at 820 (quoting Roland Electrical Co. v. Black, 163 F.2d 417, 424 (4th Cir.1947)).

That is to say, claims brought under the CPA include the type of damages sought by the plaintiff in Greene Tree, which “involve[d] the cost of cure, diminution in value, and loss of rental income[,]” none of which costs is a liquidated or fixed sum. Greene Tree, 358 Md. at 477 , 749 A.2d at 818 . We pointed out that, “[w]ere we to hold ... that an action based upon the CPA is one based on a statutory specialty, the holding would apply to any action that might be brought under the CPA.” Id. at 480 , 749 A.2d at 820 . We declined Petitioner’s invitation to find certain CPA claims to be specialties while others not, because doing so would be “inconsistent with the purpose of the distinction between the three year and the twelve year statutes of limitations.” Id., 749 A.2d at 820 .

We recognized, therefore, that it would be bad “public policy” to hold that the CPA is a statutory specialty. See id., 749 A.2d at 820 . We concluded that it was unnecessary to “attempt to state an all-encompassing definition of a statutory specialty. In the case before us it is sufficient to hold that a statutory specialty ³⁹⁵ does not lie for unliquidated damages, and we so hold.” 9 Id. at 482 , 749 A.2d at 821 (emphasis added).

Nine years later we again addressed statutory specialties, in Crowder . In that case, we determined, among other issues, 10 whether claims based on the State Secondary Mortgage Loan Law (“SMLL”) 11 constitute a specialty, under CJP § 5-102(a)(6). We looked to the analysis employed in Greene Tree, emphasizing the “undisputed proposition ] that, although claims based on a statute may fall within the meaning of ‘other specialty’ under CJP § 5-102(a)(6), not all claims based in some way on rights, duties, obligations, prohibitions or remedies mentioned or provided for in a statute do fall within that category.” Crowder, 409 Md. at 66 , 972 A.2d at 873 . We offered a “workable general principle” for determining when a statutory action constitutes an “[a]ny other specialty.” That framework has the following criteria: (1) the duty, obligation, prohibition, or right sought to be enforced is created or imposed solely by the statute, or a related statute, and does not otherwise exist as a matter of common law; (2) the remedy pursued in the action is authorized solely by the statute, or a related statute, and does not otherwise exist under the common law; and (3) if the action is one for civil damages or recompense in the nature of civil damages, those damages are liquidated, fixed, ³⁹⁶ or, by applying clear statutory criteria, are readily ascertainable.

Id. at 70 , 972 A.2d at 875 . When all three criteria are met, the statutory action constitutes a specialty under CJP § 5-102(a)(6). Applying that framework to the SMLL, we focused in part on the remedies available under the SMLL. We noted that § 12-413 of the SMLL, 12 which provides for civil penalties for violations of its provisions, authorizes the forfeiture of interest and unlawfully assessed fees.

Crowder at 72 , 972 A.2d at 876 . We concluded not only that the rights, duties, obligations, and remedy were solely the product of the SMLL, but also that the damages were for a fixed, determinable amount. Id. at 72 , 972 A.2d at 876 . Therefore, SMLL-based claims fall within the “narrow-catchall” that is the “[a]ny other specialty” provision.

See id. at 70 , 972 A.2d at 876 . Greene Tree and Crowder establish the guideposts for deciding whether an action under the MTCPA is, or is not, a specialty within the meaning of § 5-102(a)(6). With these cases in mind we turn to the parties’ arguments. AGV argues that the MTCPA is a specialty within the purview of CJP § 5-102(a)(6) because, according to AGV, the MTCPA satisfies all of the Crowder criteria.

With regard to the first criterion, AGV argues that the MTCPA creates duties, obligations, prohibitions, or rights solely by the federal TCPA and the Federal Trade Commission’s Telemarketing and Consumer Fraud and Abuse Prevention Act, which did not exist at common law. AGV argues that the second Crowder criterion is met because certain of the remedies provided by the Act, $500 per unsolicited fax or actual dam ³⁹⁷ ages and reasonable attorney’s fees, are authorized solely by statute. Further, according to AGY, the MTCPA satisfies the third criterion set forth in Crowder because the authorized civil damages are liquidated, fixed, or readily ascertainable by applying clear statutory criteria. Protus responds with a number of reasons why the MTCPA is not a statutory specialty.

First, in the view of Protus, the “specialty” to which CJP § 5—102(a)(6) refers is a “legal instrument under seal” or a “contract under seal,” neither of which is present in claims brought under the MTCPA. Second, the introductory clause in CJP § 5-102 refers to a “principal debtor or creditor” and to the “payment of principal or interest,” neither of