Hamilton v. Ford Motor Credit Co.

BLOOM, Judge. Ford Motor Credit Company (FMCC) repossessed a motor vehicle that had been purchased by Sharon Marie Hamilton and her mother, Verna Hamilton, and financed through an installment sales contract that was assigned to FMCC. Because of FMCC’s conduct before and after repossessing the vehicle, a jury in the Circuit Court for Baltimore County awarded the Hamiltons verdicts totalling $64,757.20 against FMCC and one of its employees, Bernard Alaimo. Judge John F. Fader, II, who had presided over the trial, granted a judgment N.O.V. with respect to one of the Hamilton’s claims, reducing the verdict total to $12,206.20.

Both Sharon and Verna appealed. FMCC and Alaimo cross-appealed, contending that the remaining verdicts resulted from errors committed by the trial judge. The Hamiltons complain that Judge Fader erred 1. In granting judgment N.O.V. against them in their claim for intentional infliction of emotional distress; 2.

In dismissing their claim for negligent infliction of emotional distress on the ground that Maryland does not recognize that cause of action; and 3. In ruling that only Sharon Marie Hamilton, and not Verna Hamilton, could maintain a cause of action for conversion of the motor vehicle. FMCC and Alaimo contend that Judge Fader erred 4. In admitting evidence as to FMCC’s net worth; ⁵¹ 5.

In refusing to instruct the jury that under the laws of Florida, where it repossessed the Hamiltons’ vehicle, FMCC had a right to insist on receiving the entire balance of the secured debt before releasing the vehicle; and 6. In submitting to the jury the Hamiltons’ claim for damages for violations of the Maryland Consumer Debt Collection Act (CDCA), Md.Com.Law Code Ann., §§ 14-201 through 14-204. We reject all of the contentions of error made by appellants and cross-appellant and affirm the judgment of the circuit court. FACTS On November 27, 1979, Sharon Hamilton and her mother, Verna Hamilton, purchased a Ford Courier truck from A1 Packer Ford in Baltimore City.

They executed a Maryland Automobile Retail Installment contract, which Sharon signed as buyer and Verna signed as co-buyer. The truck was purchased for Sharon’s use and was titled in her name. The total purchase price was $9095.36 with monthly payments of $165.32. The contract was immediately assigned to FMCC.

In late 1980 or early 1981 Sharon drove to Florida to visit friends and to investigate the possibilities of working or attending school there. She was involved in an accident; the truck was damaged, and she sustained fractures of cervical vertebrae. She returned to Baltimore in March 1981, leaving the truck in Florida. Verna told an agent of FMCC about the accident and informed him that Sharon would be out of work for a while.

FMCC granted the Hamiltons an extension of one month on the truck payments. In the spring of 1981, the Hamiltons fell behind in their payments. Sharon was only working part time and largely on a volunteer basis, while Verna was devoting most of her time to caring for her husband, who had suffered a heart ⁵² attack and a stroke in 1980 and was terminally ill, requiring not only the care of Verna, a trained nurse, but other family members, as well, to meet many of his basic needs. Verna and her husband received social security benefits.

FMCC representatives began calling Verna persistently to demand payment, although Verna contends that she repeatedly told them that Sharon was injured and unable to work, that her husband was ill, and that she was financially unable to make the payments. FMCC and Alaimo, however, contend that they did not learn of the condition of Verna’s husband until sometime in September of 1981, shortly before the truck was repossessed. Although various FMCC representatives telephoned Verna, the majority of the calls were made by appellee Bernard Alaimo, who had apparently been assigned the role of principal antagonist. All parties agree that Alaimo was rude and hostile to Verna when he called and that his rudeness and abruptness increased with time.

He telephoned at all hours of the day and into the early evening, sometimes several times a week. After a while, he stopped introducing himself when Verna answered the phone and merely began his calls with a demand for payment. One of Verna’s neighbors received several calls for Verna, though no messages were left. In the fall of 1981, Alaimo called one evening after 10:00 p.m., awakening Verna from a sound sleep.

He shouted at her and, referring to Sharon’s earlier assurances that she was seeking employment and would make payment soon, said, “How could you have raised such a liar? I’ll be seeing you in court.” On another occasion he threatened to ruin Verna’s credit. Verna’s daughter Mary and another witness testified that Verna was visibly upset by these calls. Mary took a number of calls herself and once asked FMCC to stop calling because her father was ill and the calls would awaken him and upset Verna.

Verna testified that she began to have considerable difficulty sleeping. She claimed that FMCC’s persistence was the cause of that condition, ⁵³ but there was other evidence to the effect that for several years she had suffered urinary incontinence that caused her to get up several times each night. It is clear, nevertheless, that Verna was extremely agitated, as were other members of her family. She felt harassed and abused.

Between March and October 1981, Sharon travelled back and forth to Florida several times, but the truck remained in Florida. On several occasions, representatives of FMCC demanded that Verna tell them exactly where in Florida the truck was located. Verna insisted that she was never sure exactly where her daughter was, because Sharon moved quite frequently and often stayed with friends. The vehicle was finally repossessed in Florida on November 16, 1981.

On November 18, Verna received from FMCC a form entitled “Notice of Repossession and Right to Redeem or Reinstate.” This notice was in accordance with Md.Com.Law Code Ann. § 12-625 (1983), which reads as follows: (a) Holder to retain repossessed goods. — For 15 days after the holder gives the notice required by § 12-624(d) of this subtitle, the holder shall retain any repossessed goods in the county where the goods were sold to the buyer or were repossessed. (b) Buyer may redeem goods repossessed. — During the period provided for in subsection (a) of this section, the buyer may: (1) Redeem and take possession of the goods; and (2) Resume the performance of the agreement. (c) Requirements for redemption. — To redeem the goods, the buyer shall: (1) Tender the amount due under the agreement at the time of redemption, without giving effect to any provision which allows acceleration of any installment otherwise payable after that time; (2) Tender performance of any other promise for the breach of which the goods were repossessed; and ⁵⁴ (3) if the discretionary notice provided for in § 12-624(c) of this subtitle was given, pay the actual and reasonable expenses of retaking and storing the goods. Sections 12-624(c) and (d) provide: (c) Discretionary notice before repossession. — (1) At least 10 days before he repossesses any goods, the holder may serve a written notice on the buyer of his intention to repossess the goods.

(2) The notice shall: (i) State the default and any period at the end of which the goods will be repossessed; and (ii) Briefly state the rights of the buyer in case the goods are repossessed. (3) The notice may be delivered to the buyer personally or sent to him at his last known address by registered or certified mail. (d) Required notice after repossession. — Within five days after he repossesses the goods, the holder shall deliver to the buyer personally or send to him at his last known address by registered or certified mail, a written notice which briefly states: (1) The right of the buyer to redeem the goods, and the amount payable for them; (2) The rights of the buyer as to a resale, and his liability for a deficiency; and (3) The exact location where the goods are stored and the address where any payment is to be made or notice delivered. A clause in the Hamiltons’ retail sales agreement expressly provided that the agreement was governed by Maryland law.

Accordingly, the November 18 notice informed Verna that she had the right to reinstate the contract within fifteen days by paying a total of $536.88 or that she could redeem the contract by paying the balance due of $4299.40. Verna promptly advised FMCC’s branch office in Hunt Valley, Maryland, that she would contact the facility in Florida where the truck was being stored. She also made ⁵⁵ an appointment to visit Samuel Gilland, FMCC’s account manager, at Hunt Valley to reinstate the contract. On November 24, 1981, Verna, accompanied by her daughter Mary, went to Hunt Valley to keep her appointment with Mr. Gilland, taking a check for $536.88 to reinstate the contract.

Informed that Mr. Gilland was not in, Verna asked to see Mr. Alaimo. At that point, a man in another room, who had apparently heard her request, began shouting that he wanted nothing to do with the Hamiltons and did not want to talk to Verna. In court, Verna was unable to identify that man as Alaimo. In any event, Verna testified that “everybody in the place” looked at her.

She said, “I stood there and I was so embarrassed I could have cried, but I figured I would just try to stay on the best side of him. The only thing I had in mind was to get the car.” Verna and Mary were then met by Joseph Murdzak, a supervisor for FMCC. Apparently under the impression that since the car was repossessed in Florida, Florida law applied, Murdzak told Verna that the notice of right to reinstate was a mistake and that she could get the truck back only by paying the full balance of $4299.40. Verna’s tender of the $536.88 check was refused.

The Hamiltons were unable to pay the full $4299.40, and FMCC subsequently disposed of the truck. Verna contacted the Commissioner of Consumer Credit and later hired an attorney. She had no further contact with FMCC. In 1982 FMCC, at the suggestion of the Commissioner of Consumer Credit, offered to provide the Hamiltons with a comparable truck and permit them to resume payments.

Sharon had since purchased a used vehicle in Florida; and as neither she nor her mother wanted anything more to do with FMCC, they rejected that offer. In February 1984, Sharon and her mother brought suit against FMCC and Alaimo in the Circuit Court for Baltimore County. In Count One of a six count amended declaration, Sharon sued FMCC for conversion by wrongfully ⁵⁶ depriving her of the truck; in Count Two, Sharon and Verna sued FMCC for conversion by wrongfully retaining the truck; in Count Three, Sharon and Verna sued FMCC and Alaimo for conduct that constituted violations of the Maryland Consumer Debt Collection Act and which caused the Hamiltons to suffer emotional distress and mental anguish; in Count Four, Sharon and Verna sued FMCC for breach of contract in failing to return the truck and reinstate the conditional sales agreement; in Count Five, Verna sued FMCC and Alaimo for intentional infliction of emotional distress; and in Count Six, Verna sued FMCC and Alaimo for negligent infliction of emotional distress. During the trial, the court ruled that only Sharon could recover for conversion of the vehicle since she alone, and not Verna, had a sufficient possessory interest in the property to sustain that cause of action.

At the close of the plaintiffs’ cáse, the court granted defendants’ motion for judgment on the Sixth Count (negligent infliction of emotional distress) on the ground that Maryland does not recognize such a cause of action. Defendants moved for judgment on all remaining claims at the close of all the evidence; the court reserved ruling on the issue of punitive damages for the conversion claim and issues of liability and damages as to the claim for intentional infliction of emotional distress. The jury returned a verdict in favor of Sharon on the conversion claim and awarded her $200.60 for property damage, $1.00 for mental pain and suffering, and $1804.00 in punitive damages. The Hamiltons were awarded $200.60 damages on their breach of contract claim.

The jury found for both Sharon and Verna on the claim for violation of the CDCA, for which they awarded Sharon $1.00 and Verna $10,000.00. The jury also found for Verna on her claim for intentional infliction of emotional distress, awarding her $1.00 in compensatory damages and $52,500.00 punitive damages against FMCC and $50.00 punitive damages against Alaimo. ⁵⁷ Judge Fader subsequently granted defendants’ motion for judgment N.O.V. as to the count for intentional infliction of emotional distress on the basis that plaintiffs had failed to present sufficient proof to justify recovery on that cause of action. The court denied all other aspects of defendants’ motion. 1 I. Intentional Infliction of Emotional Distress This appeal directs our attention once again to the tort of intentional infliction of emotional distress. The tort of intentional infliction of emotional distress has only recently found recognition in this State, initially by the Court of Appeals in Harris v. Jones, 281 Md. 560 , 380 A.2d 611 , aff'g Jones v. Harris, 35 Md.App. 556 , 371 A.2d 1104 (1977).

Maryland litigants have been quick to test its limits, eager to assert that its principles should be extended to the facts of their particular cases. In Harris, the Court of Appeals was asked to recognize a cause of action for an employee with a speech impediment against a supervisor who repeatedly mimicked and taunted him, exacerbating his nervous condition. The cross-appellant in Continental Casualty Company v. Mirabile, 52 Md.App. 387 , 449 A.2d 1176 (1982), argued that he had established a cause of action by alleging that his supervisor gave him a low evaluation, moved him from desk to desk, hummed at him, made faces at him, yelled and screamed at him to move away from a certain desk, and tapped him on the nose and pushed him. In Beye v. Bureau of National Affairs, 59 Md.App. 642 , 477 A.2d 1197 (1984), a discharged employee insisted that he was entitled to recover from his supervisors who gave him poor performance ratings, passed over him to promote less qualified individuals, appointed as his supervisor a man whom appellant had attempted to have prosecuted, and ⁵⁸ deceived him into resigning.

In Dick v. Mercantile-Safe Deposit and Trust Company, 63 Md.App. 270 , 492 A.2d 674 (1985), debtors sought recovery from their creditor because its collection agent shouted angrily at them, threatened to attach their homes and wages, demanded payment in cash only, yelled at them over the telephone, and accused one of them of lying. Most recently, in Leese v. Baltimore County, 64 Md.App. 442 , 497 A.2d 159 (1985), a disappointed applicant argued he had made out a cause of action when he argued that by virtue of a “sham” interview and because of personal bias and the application of a different standard in judging him than was applied to other applicants he was denied a full-time position in the Department of Aging and relegated to a non-merit, part-time position. In each case it was held that the facts alleged did not support a cause of action for intentional infliction of emotional distress. Harris, adopting the reasoning of the Supreme Court of Virginia in Womack v. Eldridge, 215 Va. 338 , 210 S.E.2d 145 (1974), held that there are “four elements which must coalesce to impose liability for intentional infliction of emotional distress....” Those elements are: (1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; (4) The emotional distress must be severe. 281 Md. at 566 , 380 A.2d 611 .

We wish to stress that each of these four requirements must be satisfied completely before a cause of action will lie; meeting even one element less than fully will not suffice. Moreover, the initial determination of whether these elements have been satisfied rests with the trial judge. Id. at 569 , 380 A.2d 611 . If the judge decides that reasonable men would not differ on any one of these elements, he is within his rights to grant a motion to dismiss for failure to state a cause upon which ⁵⁹ relief can be granted or to enter a judgment notwithstanding the verdict, as Judge Fader did below.

The Hamiltons contend that the court erred in granting appellees’ motion for judgment following the return of the jury’s verdict, arguing that there was sufficient evidence to go to the jury. We disagree. The evidence which the Hamiltons presented consisted of a wide array of objectionable and harassing conduct. There were persistent phone calls, one allegedly late at night.

There were repeated calls even after Verna insisted she did not know where the truck was and that she was in no financial condition to pay. There were threats to sue, threats to ruin the Hamiltons’ credit, and threats to attach Verna’s house and property. There were incorrect assertions that Florida law applied. There was Verna’s already strained emotional state due to her husband’s illness, Sharon’s injuries, and her own difficulty in sleeping, all of which Verna contends appellees knew.

Yet even considering all of the evidence in the light most favorable to appellants, which we must do when reviewing the entry of a judgment notwithstanding the verdict, Vance v. Vance, 41 Md.App. 130, 134 , 396 A.2d 296 , aff'd in part and