Fearnow v. Chesapeake & Potomac Telephone Co.

KARWACKI, Judge. The Maryland Wiretapping and Electronic Surveillance Act (hereinafter “the Wiretap Act”), Maryland Code (1974, 1995 Repl.Vol., 1995 Cum.Supp.), § 10-401 et seq. of the Courts & Judicial Proceedings Article, protects persons in Maryland from surreptitious eavesdropping, wiretapping, and electronic surveillance by outlawing unauthorized non-consensual interception of wire, private oral, and electronic communications. The Wiretap Act also directs when and by whom such non-consensual interceptions may be authorized and the exact manner in which authorization may be given; it further provides for criminal penalties and civil remedies for violations of the statute. In the case before us, Leon C. Fearnow, the petitioner and cross-respondent, sued Donald K. Wood, respondent and cross-petitioner, and The Chesapeake & Potomac Telephone Company of Maryland (hereinafter “C & P”), respondent, among others, in the Circuit Court for Washington County, charging that they violated the Wiretap Act by assisting in the illegal interception of his conversations over his workplace telephone.

After summary judgment for C & P and judgment ³⁶⁸ on a jury verdict in favor of Wood, Fearnow appealed to the Court of Special Appeals. That court upheld the summary judgment but reversed the judgment for Wood on a single issue and remanded the case for a new trial. Both Fearnow and Wood sought review by this Court, and we granted certiorari to examine and interpret certain provisions of the Wiretap Act, as well as to reiterate our long-standing rules on the proper preservation of issues for appeal. We shall reverse the specific holding of the Court of Special Appeals on which that court based its reversal and remand; petitioner and cross-respondent Fearnow is not entitled to a new trial.

We affirm or decline to reach all other holdings by the Court of Special Appeals. I. In the fall of 1983, Leon C. Fearnow was a police officer with the Hagerstown Police Department. The Chief of the department, Clinton Mowen, ordered 1 Detectives Ryder, Kauffman and Dunahugh of the department to place a wiretap on Fearnow’s assigned telephone at police headquarters, with neither a court order nor a justification which would allow wiretapping without a court order under the Wiretap Act. Ryder and Kauffman were unable to identify the binding posts associated with Fearnow’s extension. 2 They decided to ask for assistance from Donald K. Wood, who at that time was employed by C & P as a construction supervisor.

Wood had previously worked with the police department as a member of ³⁶⁹ C & P’s Community Service Committee, establishing the procedures through which public agencies could obtain technical assistance from the telephone company in emergencies. Wood also apparently had a friendly relationship with Chief Mowen, as both were active in Hagerstown community affairs and civic clubs. The parties dispute the details of what happened next. Although Wood clearly did go to the police station and provide assistance, where and when the police officers approached him and asked for his assistance is unclear, as is the extent of his participation in the wiretapping of Fearnow’s telephone.

According to Wood, Ryder called him at home in the evening, after work hours, and asked him to come to police headquarters to help with a “problem” not further identified. Wood arrived an hour later, with no tools and no idea of what he was being asked to do, and was admitted to a locked police headquarters by Ryder. Mowen joined them, and both officers told Wood they wanted him to identify the binding posts associated with a certain extension number, but did not tell him whose extension it was or why he was identifying it. After identifying the binding posts, Wood testified, he saw Ryder produce a tape recorder, attach it to the posts Wood had identified, and activate it.

Wood left the building immediately thereafter, and heard nothing further about the incident until the State Prosecutor’s Office began its investigation of Chief Mowen approximately three years later. Ryder, on the other hand, testified that he telephoned Wood at Wood’s office and visited him at his office to request his assistance. He testified at one point that he had informed Wood both that he wanted Wood to assist in a wiretap, and that it was of Fearnow’s telephone; however, he later testified to the contrary that he was not sure whether he had told Wood about the wiretap or that it was for Fearnow’s telephone. Ryder also gave conflicting testimony at a deposition, which was read at trial, as to the extent of Wood’s assistance.

He testified at the deposition that Wood had attached the wires to the terminal and made the actual hook-up of the ³⁷⁰ recorder to the telephone wires, but then on cross-examination at trial stated he was not sure of that fact: “Q. Well, who hooked the wires up? A. We were both looking at the diagram and what have you. I can’t say. I’m not going to blame it on him and say he did it or I’m not going to say I did it because I don’t know.

We were both there together.” The wiretap remained on Fearnow’s telephone for at least a period of several months, although the parties dispute exactly how long and the testimony at trial was not conclusive. Following the incident at police headquarters, Wood did not inform anyone at the telephone company of his assistance to the police or of the attachment of a recording device, despite his acknowledged familiarity with a C & P policy which required employees to refer any requests for assistance with telephone interceptions to the C&P Security Department. 3 Wood explained that he believed the policy applied only when a recording or interception device was placed on telephone company equipment or unless he knew something illegal was occurring. The original complaint by Fearnow against Wood and against C & P as Wood’s employer 4 was filed in October 1987; ³⁷¹ after a series of dismissals and amendments, the only remaining count at the time of trial was based on a charge that Wood had violated the Wiretap Act and that C&P was liable for Wood’s actions by virtue of respondeat superior. The Wiretap Act outlaws the willful interception of wire, oral, and electronic communications, and provides for some narrow exceptions to the general prohibition; § 10-410(a), under which Fearnow brings this suit, provides any person whose communications have been willfully intercepted with a civil cause of action against the person or persons illegally intercepting. 5 ³⁷² Wood and C&P moved for summary judgment, arguing that Wood did not violate the Wiretap Act.

C&P also argued in the alternative that even if Wood was found to have acted in violation of the Wiretap Act, such action would necessarily be outside his scope of employment and C&P would still not be liable. The hearing court found the assertions in the pleadings and supporting documents insufficient to support a finding that Wood willfully intercepted Fearnow’s telephone communications and thus granted summary judgment for both defendants, never reaching C & P’s alternative argument concerning scope of employment. Fearnow appealed from those judgments. In an unreported opinion, (Fearnow I), the Court of Special Appeals held that the asserted facts concerning Wood’s willfulness were sufficiently in dispute to generate a jury issue, especially since determining a party’s intentions is in general within the purview of a factfinder; therefore, the court reversed the circuit court’s summary judgment for both defendants and remanded the case for trial.

On remand, C&P again sought and won summary judgment, this time on the basis that Wood, even if he acted in violation of the Wiretap Act, was not acting within the scope of employment as a matter of law. Meanwhile, the case against Wood went to trial and the jury returned a verdict in favor of Wood. Fearnow appealed both the summary judgment in favor of C&P and the judgment on the jury verdict, contending that the trial court made several errors in its rulings and in its conduct of the pre-trial discovery and trial. In Fearnow v. Chesapeake & Potomac Telephone Co. of Maryland, et al., 104 ³⁷³ Md.App. 1, 655 A.2d 1 , (1995), (Fearnow II), our intermediate appellate court reversed the judgment for Wood and remanded the case for another trial on the basis of a single faulty jury instruction.

The court carefully reviewed and upheld the rest of the trial court’s actions of which Fearnow had complained and, in particular, affirmed the circuit court’s grant of summary judgment in favor of C & P. Although Fearnow won a new trial against Wood, he still petitioned for certiorari on the other rulings of the Court of Special Appeals in Fearnow II. Wood cross-petitioned for certiorari, challenging the reversal and the remand. We granted both petitions.

II

We first address Wood’s cross-appeal of the intermediate appellate court’s ruling that Fearnow is entitled to a new trial based on a faulty jury instruction. Thoroughness requires us to quote extensively from the record, the briefs of the parties, and the Court of Special Appeals opinion in Fearnow II. The trial court instructed the jury that Fearnow was required to prove that he had a reasonable expectation of privacy in his telephone calls at his workplace, and that Wood knew Fearnow had such a right to privacy: “The Maryland legislature enacted [the Wiretap Act] to prevent the unauthorized interception of conversations where at least one of the parties has a reasonable expectation of privacy. I might stop here and say that the attorneys will argue to you their differing views on what is meant by this law with respect to reasonable expectation of privacy.

In proving a violation of statute, the plaintiff must prove that any conversations that were intercepted were ones in which he had a reasonable expectation of privacy. Let me explain. If the plaintiff, Leon Fearnow, is on the phone and Miss X or Mr. X or Mr. Jones, or anyone calls him, you must find that at least one of the parties had a reasonable expectation of privacy.... ³⁷⁴ In proving a violation of the statute, the defendant [sic] must prove that any conversations that were intercepted were ones in which he had an expectation of privacy. This is a factual determination which must be made by you, the jury.

If you find that the defendant, Donald Wood, knew that Leon Fearnow and all other parties to a telephone conversation had a reasonable right of privacy in their conversation over a telephone, and you further find that, with that knowledge, he, that is, Donald Wood, participated in the interception of a telephone communication of the plaintiff, Leon Fearnow, with others, that is a factor that you may consider in determining whether the defendant, that is, Donald Wood, acted willfully.” (Emphasis added.) Fearnow objected to this instruction on two grounds: first, that Fearnow’s reasonable expectation of privacy was already established by the Court of Special Appeals in Fearnow I, and second, that proving a reasonable expectation of privacy in each conversation was unduly burdensome and impossible inasmuch as Fearnow believed the tapes of those conversations were inadmissible. Fearnow’s attorney stated: “In addition, we except to the giving of Defendant’s Instruction No. 7. We believe that reasonable privacy is not an issue of fact before this jury. The Court of Special Appeals, in the Fearnow decision, has already stated that the plaintiff has a reasonable expectation of privacy and we believe that this Court is bound by that determination and that this is not an issue of fact for the jury.

In addition, we believe that the statute does not require that the plaintiff prove that each conversation intercepted was one in which he had a reasonable expectation of privacy. We don’t believe we have that burden of proof under that statute and that we are entitled to an inference that when the recorder was hooked up on plaintiffs phone, that that constitutes the interception, and we do not have to prove each specific conversation, that there was a reasonable expectation of privacy on each conversation. We believe that the instruction that was given was confusing because it implies that we ³⁷⁵ have to prove each specific conversation. As we pointed out in chambers, the tapes are under seal.

They may have very well been destroyed and the plaintiff has no way of ascertaining the subject matter of each conversation on that tape. Oh, and then we have to get the consent of all the other parties to the conversations on the tape because they have an expectation of privacy. And as also pointed out in chambers, Judge Thayer has ordered the tapes sealed.” (Emphasis added.) The trial judge refused to amend his charge after examining the Fearnow I opinion. At the intermediate appellate court, Fearnow contended error in the judge’s reasonable expectation of privacy instruction on several grounds not mentioned in his oral objection, including the grounds on the basis of which the court reversed the judgment of the trial court and remanded the case.

Fearnow’s appellant’s brief in the Court of Special Appeals quoted the jury instruction on reasonable expectation of privacy and then stated: “This instruction erred on several grounds. Under § 10-401(l)(i) of Maryland’s Wiretap Act, Fearnow’s communications over his illegally intercepted phone line were wire communications not requiring proof of a reasonable expectation of privacy. All parties to a telephone conversation have a reasonable expectation of privacy. Furthermore, the defendant elicited absolutely no evidence to support this instruction, which coupled with the clear and convincing evidence[ 6 ] instruction amounted to a directed verdict for the defendant.” (Emphasis and footnote added.) Wood argued the threshold issue of preservation to the Court of Special Appeals, noting that Fearnow did not state at ³⁷⁶ trial the grounds he pressed on appeal, as required by Maryland Rule 2-520.

The intermediate court rejected Wood’s preservation argument, holding: “It is clear that appellant objected to this jury instruction based, in part, on the contention that his expectation of privacy in his telephone communications was not an issue for the jury. Indeed, appellant stated specifically ‘that reasonable privacy is not an issue of fact before this jury.’ We believe that this was sufficient, pursuant to Md. Rule 2-520(e), to preserve that issue for our review. As it is upon this basis that we hold the instruction to be reversible error, we need not discuss appellant’s additional claims in this regard.” Fearnow II, 104 Md.App. at 31 , 655 A.2d at 16 . The court went on to discuss extensively the law of privacy and its relationship to the Wiretap Act, agreeing with Fearnow’s specific argument found only in his appellate brief that telephone communications were “wire communications” and not “oral communications” under the Wiretap Act and case law, and that privacy expectations were “irrelevant to statutory liability for the alleged interception of wire communications....” (Emphasis added.) The intermediate appellate court recognized that “oral communication” under § 10-401 of the Wiretap Act means “any conversation or words spoken to or by any person in private conversation.” Thus, when an oral communication is intercepted, determining whether a violation of the Wiretap Act occurred hinges on a jury determination that at least one of the parties had a reasonable expectation of privacy.

The definition of wire communication, on the other hand, makes no reference whatsoever to privacy and thus privacy is not relevant to determining a violation of the Wiretap Act when wire communication has been intercepted. See Benford v. American Broadcasting Co., Inc., 649 F.Supp. 9, 11 (D.Md.1986) (the Wiretap Act parallels the federal wiretap act in its requirement that oral communications require factual finding of reasonable expectation of privacy); Briggs v. American Air Filter Co., Inc., 630 F.2d 414 , 417 n. 4 (5th Cir.1980); PBA Local No. 38 v. ³⁷⁷ Woodbridge Police Dep’t, 832 F.Supp. 808, 819 (D.N.J.1993) (comparing the New Jersey wiretap act to the federal act and noting that telephone conversations, as wire rather than oral communications, are protected generally regardless of the speakers’ expectation of privacy). The intermediate appellate court then held that the error was not harmless because the jury was prevented from properly considering the issue of Wood’s willfulness: “Therefore, had the jury been properly instructed, i.e., ‘because plaintiffs telephone communications are “wire communications,” the plaintiffs reasonable expectation of privacy is irrelevant to your determination of whether Wood acted willfully,’ it would have been free to decide whether Wood acted willfully when he allegedly intercepted appellant’s telephone conversations, regardless of appellant’s reasonable expectation of privacy and Wood’s knowledge of that expectation.” Fearnow II, 104 Md.App. at 36 , 655 A.2d at 18 . In other words, the court held that the question of a reasonable expectation of privacy was not an issue for the jury not because, as Fearnow had argued at trial, it was already settled as the law of the case that Fearnow had such an expectation, but to the contrary, because it was not a relevant issue for anyone, judge or jury, in the context of this particular alleged violation of the statute.

Based on this instructional error by the trial judge, the court remanded the case for a new trial. Without question, notwithstanding the vague rationale given in the previous paragraphs of its opinion, the court actually based the holding of error on the distinction between wire and oral communications in the statute, which was the first ground for objection in Fearnow’s bdef. Fearnow made no such distinction at trial in his objection to the judge’s instruction and in fact never mentioned § 10-401 of the Wiretap Act. Consequently, we disagree with the Court of Special Appeals that Fearnow sufficiently preserved the grounds on which the court based its reversal and remand.

Md. Rule 2-520(e) provides: ³⁷⁸ “No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection.” We and our intermediate appellate court have consistently interpreted this rule and its precursor, former Md. Rule 554(d), as requiring parties to be precise in stating objections to jury instructions at trial, for the plain reason that the trial court has no opportunity to correct or amplify the instructions for the benefit of the jury if the judge is not informed of the exact nature and grounds of the objection. Sergeant Co. v. Pickett, 283 Md. 284, 288-89 , 388 A.2d 543, 546 (1978); Rhone v. Fisher, 224 Md. 223, 232 , 167 A.2d 773, 779 (1961); Maszczenski v. Myers, 212 Md. 346, 356 , 129 A.2d 109, 114 (1957); Barone v. Winebrenner, 189 Md. 142, 145 , 55 A.2d 505, 506 (1947); Black v. Leatherwood Motor Coach Corp., 92 Md.App. 27, 33-34 , 606 A.2d 295, 298 , cert. denied, 327 Md. 626 , 612 A.2d 257 (1992); Edmonds v. Murphy, 83 Md.App. 133, 178 , 573 A.2d 853, 875 (1990), aff'd, 325 Md. 342 , 601 A.2d 102 (1992); Ghassemieh v. Schafer, 52 Md.App. 31, 39 , 447 A.2d 84, 88 (1982). See also Lynch & Bourne, Modern Maryland Civil Procedure, § 9.7(b). If the party objecting does not clearly state, at the time of the objectionable instruction, the nature of the objection and the reasoning and law on which the objection is grounded, an appellate court can hardly find error, at that same party’s request, in a trial judge’s failure to correct a mistake in the charge.

In the instant case, Fearnow certainly did object to sending the issue of determining privacy expectations to the jury, but not because it was irrelevant to the consideration of Wood’s willfulness; to the contrary, Fearnow stated that the Court of Special Appeals had already made the determination that he had a reasonable expectation of privacy, and that the jury was “bound by” that determination. Fearnow himself submitted a request for jury instruction which cited Fearnow I and read: ³⁷⁹ “ PLAINTIFF’S INSTRUCTION NO. 12 You are instructed as a matter of law that the plaintiff, Leon Fearnow, had a reasonable expectation of privacy on his office telephone and certainly any other party to a conversation with the plaintiff would have an expectation of privacy.” Fearnow’s oral objection, combined with this written request which was submitted to the trial judge, clearly were not sufficient to alert the trial judge to any actual errors in his instructions. To a significant extent, Fearnow’s objections and stated grounds even confirmed the judge’s erroneous understanding that reasonable expectation of privacy was a consideration under the statute. Black v. Leatherwood Motor Coach Corp., 92 Md.App. 27 , 606 A.2d 295 , cert. denied, 327 Md. 626 , 612 A.2d 257 (1992), is closely analogous to the case sub judice.

Plaintiffs suing for injuries caused by a bus accident won a jury verdict, but did not receive punitive damages. On appeal, they claimed error in the jury instructions on punitive damages. The Court of Special Appeals examined the record of plaintiffs’ objections at trial and found that they had indeed excepted to the instructions as “unnecessary” and “improper and confusing;” yet, in their brief to the Court of Special Appeals, plaintiffs/appellants listed four very specific grounds for objection, two of which were not raised at trial. Those two grounds included a failure of the judge to define a term used and a misleading implication by the judge that both parties had requested the instruction when in fact only one party had.

The court held that the grounds raised in the brief but not at trial were not preserved for appellate review under Md. Rule 2-520(e), because the purpose of the rule was to allow the trial judge the opportunity to correct, supplement, or otherwise “amplify” his charge to cover the law of the case. Id. at 33-34 , 606 A.2d at 298 . Had the plaintiffs in Black raised their specific objections to the trial judge, the trial court might have been able to correct any misimpressions he may have given the jury, or define any confusing terms he used; similarly, the trial judge ³⁸⁰ in the instant case could have reconsidered his statement of the law as it applied to “wire communications” had Fearnow raised the proper grounds for objection at trial rather than later in his appellate brief. In Edmonds v. Murphy, 83 Md.App. 133 , 573 A.2d 853 (1990), aff'd, 325 Md. 342 , 601 A.2d 102 (1992), defendants in an automobile negligence suit appealed from a judgment on a jury verdict for the plaintiffs, contending that the trial court erred in failing to instruct the jury on a specific legal doctrine relevant to the case, and on the plaintiffs’ proper burden of proof.

The plaintiffs/appellees responded that the defendants/appellants had not properly preserved these issues because when they objected at trial they referred to the instructions by their numbers and