Hawes v. Carberry

SALMON, Judge. On March 5,1993, appellees, John L. Carberry and his wife, Barbara A. Carberry, filed suit against appellant, Daniel Hawes, and Roy A. Dickan in the Circuit Court for Howard County. The suit alleged that the defendants violated Maryland’s Wiretap and Electronic Surveillance Law, Md.Code (1974, 1989 Repl.Vol.), § 10-401 et seq., of the Cts. & Jud. Proc.

Article (the “Act”), and requested compensatory and punitive damages, as well as “reasonable attorney’s fees and costs.” The case was heard non-jury on March 8,1994. Mr. Hawes, an attorney licensed in the Commonwealth of Virginia but not in the State of Maryland, appeared as his own counsel. Mr. Dickan also appeared pro se. At the conclusion of plaintiffs’ case, Mr. Hawes moved for judgment 1 pursuant to Md.Rule 2-519(b).

The motion was supported by a written memorandum. Mr. Hawes asserted in the motion that in order to be found civilly liable, plaintiffs must plead and prove that he had “wilfully” violated the Carberrys’ rights under the Act, and this required a showing that he had knowledge that plaintiffs “had rights under that specific statute, and that he [Mr. Hawes] had knowingly and intentionally violated [those] rights.” The trial judge reserved ruling on the motion and advised that he would “consider the motion at the end of the case.” At the conclusion of the case, Mr. Hawes again moved for judgment, and the trial judge again deferred ruling and stated that he would consider any arguments in support of the motion when Mr. Hawes gave his closing argument. In closing argument, Mr. Hawes asserted, inter alia, that it did not matter whether he had secretly taped a conversation ²¹⁶ between himself and the Carberrys because plaintiffs had failed to offer “any evidence that suggests that I knew [at the time of the secret taping] anything about what Maryland law was or that I had any knowledge that makes me a willful violator of [the Act].” Counsel for the Carberrys argued at trial that plaintiffs were required to prove that Mr. Hawes intended to secretly record a conversation between them but that it was “positively absurd” for Mr. Hawes to claim that ignorance of the law prevented the imposition of civil liability under the Act. After closing argument, the trial judge granted judgment in favor of Mr. Dickan.

He then stated: I don’t find the fact that Mr. Hawes testified that he had no specific knowledge that his conduct was violative of [the Act] precludes the plaintiff from recovering. So it’s on all fours right there is [sic] anybody wants to make any, take any further action with reference to that issue. Clearly, I’m satisfied that Mr. Hawes intended to do the very act that he did, namely to intercept the conversation, communication between he and Mr. and Mrs. Carberry, and I find that to be violative of the Act. I will award actual damages—or damages as required by the statute in the amount of $1,000 to Mr. and Mrs. Carberry, enter judgment in their favor against Mr. Hawes.

The trial judge proceeded to deny punitive damages and awarded the Carberrys $750 in attorney’s fees, plus costs. The trial judge did not explicitly rule on Mr. Hawes’ Motion for Judgment, but, as a practical matter, his ruling in favor of the Carberrys amounted to a denial of that motion. On appeal, Mr. Hawes raises numerous issues. Only one major issue needs to be decided.

For clarity, we have rephrased the issue presented as: Did the trial judge err in denying, at the conclusion of the entire case, appellant’s Motion for Judgment? ²¹⁷ STANDARD OF REVIEW We shall relate the facts presented at trial in the light most favorable to the Carberrys, who prevailed below. This Court said in Pahanish v. Western Trails, Inc., 69 Md.App. 342, 353 , 517 A.2d 1122 (1986): Rule 2-519(b) may be dichotomized. In a non-jury trial, when a party has moved for judgment, the court is allowed as trier of fact to determine the facts and render judgment thereon. The trial judge is not compelled to make any evidentiary inferences whatsoever in favor of the party against whom the motion for judgment is made.

When the motion for judgment is made “under any other circumstances,” viz, in a jury trial, the trial judge must consider the evidence and inferences arising therefrom in the light most favorable to the non-moving party. In the case sub judice, the matter was tried by the court. Thus, the trial judge was allowed to evaluate the evidence, as though he were the jury, and to draw his own conclusions as to the evidence presented, the inferences arising therefrom, and the credibility of the witnesses testifying. (Emphasis in original).

FACTS Mr. Hawes was hired by Office Systems Integration (“OSI”) to collect money from Mr. Carberry and two others. On February 19, 1992, Mr. Hawes obtained a judgment, in Virginia, in favor of OSI in the amount of $423,811. The judgment was against Mr. Carberry; WTM, Inc.; and Franz P. Nader. At about 6:00-6:30 p.m. on March 11, 1992, Mr. Hawes and Mr. Dickan, President of OSI, went to the Carberrys’ Columbia, Maryland, townhouse.

The purpose of this unannounced visit was to discover the address and other information about Franz Nader and WTM, Inc. While Mr. Dickan waited in a parked automobile, Mr. Hawes went to the front door of the Carberry home and knocked. Mr. Carberry answered the door. ²¹⁸ With the front door ajar, appellant and the appellees conversed. Mr. Carberry stood on the threshold of his home during the conversation; Mr. Hawes stood outside about one to one-and-one-half feet away; and Mrs. Carberry stood inside the house and closely behind her husband in a position where she could see Mr. Hawes. It was dark outside and the Carberrys could see no one else in the vicinity.

Mr. Hawes introduced himself and then advised that OSI had a judgment in Virginia against Mr. Carberry and others for “a little less than one-half a million dollars.” During the unfriendly conversation that ensued, Mr. Carberry asserted that he had no knowledge of the Virginia suit, and therefore, he adamantly maintained, the judgment was invalid. Mr. Hawes said he felt that the judgment was valid and enforceable but said he had made the visit to obtain Mr. Carberry’s cooperation regarding collection of the judgment from the other judgment debtors. Mrs. Carberry interjected herself into the conversation from time to time, mainly by commenting that Mr. Hawes’ visit was “unprofessional” and advising her husband to terminate the conversation immediately by closing the door. The conversation concluded with Mr. Hawes leaving his card and Mr. Carberry advising that he would consult "with his attorney.

This entire conversation was secretly taped by Mr. Hawes without the consent or knowledge of either Mr. or Mrs. Carberry. On March 14, 1992, three days after the aforementioned conversation, Mr. Hawes, aided by a Maryland attorney, brought an action in Howard County, Maryland, to enroll the Virginia Judgment. On January 21, 1993, a Motion for Sanctions was filed by Mr. Hawes against Mr. Carberry and his attorney. This motion was filed in the suit to enroll judgment, and attached to the motion was a transcript of the aforementioned secretly recorded March 11, 1992 conversation.

This filing provided the Carberrys with their first notification that their conversation with Mr. Hawes had been taped without their knowledge. At the trial of the case sub judice, the Carberrys called Mr. Hawes as an adverse witness. During their counsel’s exami ²¹⁹ nation of Mr. Hawes, no attempt was made to show that Mr. Hawes knew (on the date the Carberrys’ conversation was secretly taped) that he was violating the Carberrys’ rights under the Act. Moreover, appellees did not attempt in any other manner to show appellant’s state of mind on the date in question.

Mr. Hawes called himself as a defense witness. He posed the following question and answered it as follows: Q. What experience have you had with respect to wiretapping and eavesdropping statutes in the past? A. The simple answer is none. Before I received notice of this action and the criminal charges, I had never had occasion to read the wiretapping and eavesdropping law of any state much less Maryland.

And my knowledge of it was what I had obtained from other attorneys, which was basically that federal law gives a person the right to make a record of his own conversation with other people. Subsequent to these charges having been made and this case being filed, I’ve had occasion to research the law in more depth and now I know more about Maryland’s law. But at the time any of this happened, I had been in Maryland maybe four times in the last ten years all related to this one case, and I have no prior knowledge of anything related to this before having been served. And I believed that federal statute authorized me to do what I was doing.

(Emphasis added). DISCUSSION Section 10-402 of the Act states in pertinent part: (a) Unlawful acts—Except as otherwise specifically provided in this subtitle it is unlawful for any person to: (1) Wilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral or electronic communication; .... Section 10-401(c) of the Act defines “oral communication” as meaning “any conversation or words spoken to or by any person in private conversation.” ²²⁰ The evidence was sufficient to show that the March 11,1992 conversation between the Carberrys and Mr. Hawes was a private conversation within the meaning of the Act because appellees had both a subjectively and objectively reasonable expectancy of privacy when they talked to appellant. Fearnow v. C & P Telephone Co. of Md., et al., 104 Md.App. 1, 32-34 , 655 A.2d 1, 16-18 (1995).

See also Benford v. American Broadcasting Companies, Inc., 649 F.Supp. 9, 11 (D.Md., 1986).