Hollander v. Lubow

Smith, J., delivered the opinion of the Court. We shall here hold that seeking and obtaining information as to the fact that an individual was a partner in a firm under the circumstances of this case does not constitute an invasion of privacy. Accordingly, we shall set aside judgments totaling $106,001.01 obtained by appellee, Ralph Lubow (Lubow), against appellants, Leroy Hoffberger (Hoffberger), Lawrence F. Rodowsky (Rodowsky), and Maryland National Bank (Maryland National), for an alleged invasion of privacy. 1 ⁴⁹ As the prior opinions of this Court reflect, there has been extensive litigation growing out of Lubow’s former employment by Merchants Mortgage Company (Merchants Mortgage). See Merchants Mortgage Co. v. Lubow, 275 Md. 208 , 339 A. 2d 664 (1975); Schwartz v. Merchants Mort.

Co., 272 Md. 305 , 322 A. 2d 544 (1974); and Suitland Dev. v. Merchants Mort., 254 Md. 43 , 254 A. 2d 359 (1969). This is but another chapter in that ongoing story. On February 21, 1973, Lubow filed suit in the Superior Court of Baltimore City against Morton J. Hollander (Hollander), Hoffberger, Rodowsky, and Maryland National. Count 1 of the declaration against Hollander was dismissed by Lubow with prejudice.

Count 2 charged that Hoffberger “in June, 1969, without the consent or authority of [Lubow], express or implied, violated [Lubow’s] right to privacy, intruded into and invaded his seclusion, solitude and private affairs, by contacting [Maryland National] Bank and by wrongful and unlawful means did use economic pressure and influence which he possessed as a substantial customer of the Defendant Bank and did obtain from the Bank, private and confidential information of a business nature indicating among other matters [Lubow’s] financial interest in Traders Mortgage Company.” It was claimed that “[t]he above intrusion into [Lubow’s] private affairs was not discovered until October 10, 1971 when the Defendant Hoffberger submitted an affidavit in other proceedings acknowledging the above intrusion,” and that Lubow “could not with the exercise of reasonable diligence have discovered the intrusion of his private affairs prior to the affidavit of October 10, 1971.” Lubow claimed that “ [a]s a result of this wrongful invasion of [his] privacy, [he] suffered great expense in attempting to discover the source of the information,” and that “these acts directly and proximately resulted in the infliction upon [him] of injury in the form of severe emotional distress.” The third count of the ⁵⁰ declaration was against Maryland National. It was similar in content to the second count and incorporated “each and every allegation contained in the [preceding] paragraphs of th[e] Declaration with the same force and effect as [t] herein fully set forth.” The fourth count was against Rodowsky. It was similar in form and incorporated the prior counts. It alleged that Rodowsky “urg[ed] the Defendant Leroy Hoffberger to ... gather information concerning Lubow’s interest in Traders Mortgage Company and other personal matters.” The fifth count was against Rodowsky, Hollander, Hoffberger, and Maryland National.

After again incorporating prior paragraphs by reference, it was claimed that Maryland National, Hollander, Hoffberger, and Rodowsky conspired to invade Lubow’s privacy by conspiring to make known that Lubow had a financial interest in Traders Mortgage Company. Each count of the declaration claimed $25,000 as compensatory damages and $150,000 as punitive damages. Demurrers interposed by each defendant were overruled. Each defendant then entered a general issue plea and also pleaded limitations, claiming that the cause of action accrued more than three years prior to the filing of the suit.

Lubow pursuant to Maryland Rule 610 moved for summary judgment on the issue of liability only. If the judge who considered that motion (not the one who presided at trial) addressed himself to the issue of limitations, that fact does not appear in the record. Under Rule 610 d 1 in passing on the motion he was required to consider “the pleadings, depositions, and admissions on file, together with the affidavits, if any . .. .” Accordingly, he should have addressed himself to the issue of limitations. Summary judgment as to liability was entered against the individual defendants but denied as to Maryland National.

The matter proceeded to trial before a jury. It returned a verdict of $4,000 compensatory damages and $30,000 punitive damages against Hoffberger on the second count; $1.01 compensatory damages and $10,000 punitive damages against Maryland National on the third count; $4,000 compensatory damages and $10,000 punitive damages against Rodowsky on the ⁵¹ fourth count; $4,000 compensatory damages and $10,000 punitive damages against Rodowsky on the fifth count; $4,000 compensatory damages and $30,000 punitive damages against Hoffberger on the fifth count; and a verdict in favor of Maryland National on the fifth or conspiracy count. It found no compensatory damages and no punitive damages against Hollander under the fifth or conspiracy count. A number of interesting questions are raised by this appeal, not the least of which is whether the claims were barred by limitations.

It will not be necessary for us to address ourselves to those matters, however, because in the view we take of this case summary judgment should have been entered in favor of all defendants. Maryland National moved for summary judgment. The other defendants did not, but under Rule 610 d 1 “[w]here appropriate, the court on the hearing may render judgment for the opposing party even though he has not filed a cross-motion for summary judgment.” In Melbourne v. Griffith, 263 Md. 486 , 283 A. 2d 363 (1971), the defendant appealed from a jury verdict against him, invoking Maryland Rule 887 that on an appeal from a final judgment “every interlocutory order which has previously been entered in the action shall be open to review by this Court, unless an appeal has theretofore been taken from such interlocutory order and been decided on the merits by this Court.” We held that Melbourne’s motion for summary judgment should have been granted, thus reversing the judgment of the trial court, and entered a judgment in favor of Melbourne against the plaintiff for costs. That reasoning is applicable here.

We have already referred at some length to the allegations of the declaration. Nevertheless, as we proceed to a consideration of the propriety of the action on the motions for summary judgment we reiterate that we do not here have an action in contract against Maryland National, but a suit in tort against that bank and others. In support of his motion for summary judgment on the issue of liability Lubow filed: affidavits of Hoffberger and Rodowsky originally filed in Merchants Mortgage Co. v. ⁵² Lubow, supra; an affidavit of Lubow; and depositions of Hoffberger and Rodowsky. From these the trial judge could have gleaned the following relevant facts: Lubow was a former employee of Merchants Mortgage.

The business of Merchants Mortgage included the making of loans, principally land loans. It also included the brokering of real estate mortgage loans if the opportunity were presented to obtain a profit or fee from the placement of a loan. After the parting of the ways of Merchants Mortgage and Lubow, Rodowsky’s law firm was employed by Merchants Mortgage to represent it against Lubow. There was ongoing litigation.

See, e.g., Merchants Mortgage Co. v. Lubow, supra, 275 Md. at 223-49 . The suspicion existed that Lubow during the period of his employment was a partner in a competing firm, Traders Mortgage Co. (Traders Mortgage). Investigation revealed, among other things, a mortgage in Charles County to Traders Mortgage from a firm that had first applied to Merchants Mortgage. The land records of Montgomery County revealed an agreement to which Lubow and Jack Gordon, known to have been a partner in Traders Mortgage, were parties but from which it could not be clearly determined as to the intent of the agreement or their relationship.

Inquiry at the Department of Assessments and Taxation revealed that Traders Mortgage was not a corporation. Finally, in June 1969 Rodowsky requested Hoffberger, an officer and director of Merchants Mortgage, to make inquiry of Maryland National to confirm whether or not Lubow was a partner in Traders Mortgage. The deposition of Hoffberger indicates that the request was solely limited to that fact. Hoffberger contacted an individual at Maryland National whom he believed to be “a vice-president ... in charge of the Mortgage Department.” The inquiry was made by telephone.

That individual, who was not called as a witness by any party in this proceeding, subsequently advised Hoffberger by telephone that Lubow was a partner of Traders Mortgage together with Herman Speert. The deposition further indicates that no inquiry was made of the Maryland National official as to the source of the information and that Hoffberger did not ask to obtain ⁵³ Lubow’s financial statement, having “no curiosity about it nor did [he] think that would have been a proper question for [him] to ask.” Hoffberger said that such “information [was] available from other sources ...[,] Dun & Bradstreet, for instance.” Hoffberger subsequently advised Rodowsky of the information obtained. Lubow claimed that in the normal course of his business dealings with Maryland National he delivered to the bank his personal financial statement and that his interest in Traders Mortgage was indicated on the face of this financial statement. Nowhere, however, does the source of the information conveyed by Maryland National’s officer to Hoffberger appear.

It could have come from Maryland National’s records, from a lunch table conversation in no way connected with the bank, or from any number of other possible sources. Hollander’s connection is that he and Hoffberger were law partners. In Carr v. Watkins, 227 Md. 578, 586 , 177 A. 2d 841 (1962), Judge Hammond said for the Court that “in a proper case” Maryland would recognize an action for an unwarranted invasion of privacy. He there traced for this Court the background of the law relative to this tort.

In Household Fin. Corp. v. Bridge, 252 Md. 531 , 250 A. 2d 878 (1969), Judge Finan did likewise. Chief Judge Hammond again reviewed the law in Harnish v. Herald-Mail Co., 264 Md. 326, 336-37 , 286 A. 2d 146 (1972), as did Judge Barnes for the Court in Summit Loans, Inc. v. Pecola, 265 Md. 43 , 288 A. 2d 114 (1972), and Beane v. McMullen, 265 Md. 585, 599-603 , 291 A. 2d 37 (1972). In Household Finance Corp. Judge Finan pointed out for the Court that when Carr was decided the opinion paraphrased Restatement, Torts, § 867 (1939).

He quoted from W. Prosser, The Law of Torts, Chapter 22, p. 832 (3d ed. 1964). A nearly identical quotation is now found in W. Prosser, The Law of Torts, (4th ed. 1971) which states: “The early cases in all jurisdictions were understandably preoccupied with the question whether the right of privacy existed at all, and gave little or no consideration to what it would amount ⁵⁴ to if it did. Today, with something over four hundred cases in the books, some rather definite conclusions are possible. What has emerged is no very simple matter.

As it has appeared in the cases thus far decided, it is not one tort, but a complex of four. To date the law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff ‘to be let alone.’ ” Id. at 804. Judge Finan then said: “Professor Prosser is now the Reporter for the Restatement, covering the sections on invasion of privacy, and in Tentative Draft No. 13, published April 27, 1967, of the Restatement of the Law, Second, Torts there is found listed in § 652A the four different kinds of invasions of privacy . . . .” Id. at 537. (Emphasis in original.) He then quoted from § 652A as it appeared in Tentative Draft No. 13.

Tentative Draft No. 21, published April 5, 1975, has altered the prior text somewhat, stating: “§ 652A. General Principle (1) One who invades the right of privacy of another is subject to liability to the other if the invasion is unreasonable. (2) The right of privacy is invaded when there is (a) Intrusion upon the seclusion of another, as stated in § 652B; or (b) Appropriation of the other’s name or likeness .. .; or (c) Publicity given to the other’s private life, as stated in § 652D; or (d) Publicity which places the other in a false light before the public . .. .’’Id. at 88. ⁵⁵ Accordingly, for liability to exist here that which was done must constitute an “[intrusion upon the seclusion of another” or “[publicity given to the other’s private life” since what is involved in no way constitutes “[appropriation of the other’s name or likeness” or “[p]ublicity which places the other in a false light before the public .. . .” Insight into this tort is provided by the language of § § 652B and 652D: “§ 652B. Intrusion Upon Seclusion One who