Wesko v. G.E.M., Inc.

Powers, J., delivered the opinion of the Court. Appellants here, Richard A. Wesko and Patricia Wesko, his wife, filed a suit in the Circuit Court for Baltimore County against G.E.M., Inc. and GEM International, Inc. 1 ¹⁶³ claiming that both compensatory and punitive damages should be awarded to each of them because of steps taken by or on behalf of the defendants in a civil suit for debt. In their declaration the Weskos alleged that for several years they had been customers of G.E.M., a large retail and mercantile business, under various credit plans and credit cards. They alleged that during 1968 their account had fallen into arrears and that in November, 1968, G.E.M. filed suit against them in the People’s Court of Baltimore County and obtained a judgment against them, entered on 11 February 1969.

G.E.M.’s attorney caused a copy of the People’s Court judgment to be recorded in the Circuit Court for Baltimore County. On 24 February 1969 the Wesko account was paid in full to G.E.M. Plaintiffs below further alleged that in October, 1969, the attorney who obtained the judgment ordered the issuance of an attachment on the judgment to be served on Mr. Wesko’s employer, Bethlehem Steel Company. The attachment was served, and a portion of Mr. Wesko’s wages was withheld. Upon these basic allegations, Mr. Wesko asserted under the heading, “Case A” in the declaration what he styled as nine separate causes of action.

Mrs. Wesko, under the heading, “Case B”, incorporated all of the allegations made in Case A, and made additional allegations concerning her right to her own name and reputation and her right to be employed. She claimed compensatory and punitive damages “under each cause of action considered above or all of them considered together”. The causes of action alleged by Mr. Wesko and adopted by Mrs. Wesko, each incorporating the general factual allegations, were: First: He was wrongfully deprived of his property, thereby causing physical loss and mental anguish. Second: Defendant’s actions suggested that plaintiff could not be trusted to pay his debts and therefore could not be trusted, and were ¹⁶⁴ such as to slander and libel him and damage his name and reputation.

Third: Defendant’s actions were wrongful and malicious and fraudulent interference with plaintiff’s employment contract and his rights in connection with his employment. Fourth: Defendant wrongfully and without authority divulged confidential and personal information, which was false, about plaintiff. Fifth: Defendant’s actions were an invasion of plaintiff’s right of privacy. Sixth: Defendant obtained judgment against plaintiff through fraud, irregularities and misrepresentation.

Seventh: Defendant caused plaintiff to suffer “slander and libel by judgment” in wrongfully obtaining judgment, and after the debt was paid improperly transferred the judgment to the Circuit Court, where it was recorded and became available for public inspection. Eighth: Defendant’s actions were a misuse of judicial process because after the judgment was wrongfully recorded in the Circuit Court, defendant used the false and fraudulent judgment as a basis for an attachment of plaintiff’s wages. Ninth: Defendant acted wrongfully and with malice and fraud. (This cause of action does not allege any separate wrongful act, but contains allegations which appear to be designed to lay the foundation for allowance of punitive damages.) Prior to trial a demurrer to the sixth cause of action was sustained by the court without leave to amend.

Appellants do not claim in this Court that there was error in that ruling. ¹⁶⁵ Trial of the case was held before Judge W. Albert Menchine and a jury in the Circuit Court for Baltimore County on 10, 11, 12 and 15 May, 1972. Each of the appellants testified and, in addition, presented evidence through various witnesses, including Robert E. Schwalenberg, G.E.M.’s division credit manager, and N. Frank Lanocha, the attorney who represented G.E.M. in the collection proceedings culminating in the judgment and the subsequent attachment. G.E.M. also called Mr. Schwalenberg and Mr. Lanocha, as well as three witnesses whose testimony dealt with the question of damages. The evidence showed that the overdue account which the Weskos owed to G.E.M. was referred by the credit office of the Baltimore stores to Mr. Lanocha in July of 1967 for collection.

Mr. Lanocha testified that within a day or so he wrote to the Weskos and advised them that the account was in his hands for collection, and that he also wrote them several subsequent letters. He asked that they make payments on the account to him. He said that no payments were made to him, but a few were made directly to one of the stores in Baltimore, and the store notified him. However, the account remained delinquent, and in November of 1968 he filed suit for the balance then due in the People’s Court of Baltimore County.

In February of 1969 judgment was entered against the Weskos on a motion for summary judgment supported by an affidavit made by the local credit manager. The attorney obtained a copy of the judgment, which was filed in the Circuit Court for Baltimore County on 17 February 1969. Mr. Lanocha wrote the appellants on 13 February, advising them of the judgment, and stating that if arrangements for payment were not made, he would attach their assets. Because he had heard nothing from the Weskos and had not been advised of any payments on the judgment, he caused an attachment to be issued in October 1969 against Mr. Wesko’s wages and served on his employer.

On the day that Mr. Wesko received his paycheck, reduced to $100.00, with a notice that his employer was withholding $42.25 because of G.E.M.’s attachment, he called Mr. ¹⁶⁶ Lanocha and also called Mrs. Wesko. She later that day had two telephone conversations with the attorney. Between those conversations Mr. Lanocha called the G.E.M. office at Hyattsville, where the credit records were maintained, and was advised that payment of the full balance of the Wesko account had been made. He called Mrs. Wesko back and told her that he had confirmed payment, and would dismiss the attachment and close out the case.

He talked again to Mr. Wesko, and told him the same thing. On the same day he prepared and sent to the court an order of satisfaction and dismissal, and sent copies to the legal office of Bethlehem Steel. In addition to his telephone conversations with Mr. and Mrs. Wesko and with G.E.M., Mr. Lanocha said that on the same afternoon he received a call from an attorney representing the Weskos, accusing G.E.M. of willfully, knowingly, and falsely attaching Mr. Wesko’s wages. Mr. Lanocha testified: “ * * * I tried to explain to him that that wasn’t so, obviously.

It wasn’t our intention to willfully, knowingly and so forth, to attach the wages, that it is, very obviously, a goof, that with the amount of accounts that G.E.M. may handle, it is very obvious that the human factor came into the picture. I just wasn’t notified about it, and, of course, had I known, I wouldn’t have filed the attachment, * * Mr. Schwalenberg testified that he was the division credit manager for G.E.M., with headquarters at Hyattsville, and that he had general supervision over the credit accounts of the stores known as Baltimore West and Baltimore East, as well as those of other stores in the Washington Suburban Area and Virginia. He said that there was a credit manager at the Baltimore West store, and over him was a city credit manager for the two Baltimore stores. Credit records for all stores were kept at Hyattsville.

When the Hyattsville office considered an account to be delinquent, a copy of the ledger card was sent to the appropriate store. The decision to refer an account to an attorney for collection was made by the city ¹⁶⁷ credit manager. When that was done, it was the procedure to make a notation on the face of the ledger card in Hyattsville that the account had been referred to an attorney. Mr. Schwalenberg testified that in this particular case that was overlooked; the Wesko account was not so marked; and that failure to mark it was a mistake.

Because the ledger card was not so marked, the credit office did not advise the collection attorney when full payment of the account was made at one of the Baltimore stores, approximately two weeks after the entry of judgment. Mr. Schwalenberg testified that the attachment resulted from a clerical mistake. He said that he had never met nor talked to Mr. Wesko and had no personal grudge or anything against him at all. At the close of the evidence offered by the plaintiffs on the issue of liability, the defendants filed motions for a directed verdict as to each cause of action in each claim.

The trial judge granted the motions as to the first and third causes of action in Case A, and as they were adopted in Case B. At the close of all of the evidence, the motions were made again as to the remaining causes of action. At that time the court granted the defendants’ motion for a directed verdict as to the second, fourth, fifth and seventh causes of action as to Mr. Wesko, and denied the motion as to the eighth cause of action. The judge commented that he interpreted the ninth cause of action merely as a claim for punitive damages which he would allow the jury to consider. As to all of Case B asserting the claims of Mrs. Wesko, the court granted the motion for a directed verdict.

The case was submitted to the jury for consideration of the claim asserted by Mr. Wesko in his eighth cause of action, for misuse of judicial process, including his claim for punitive damages as asserted in the ninth cause of action. The jury returned a verdict in favor of Mr. Wesko and assessed compensatory damages at $5,000.00, and assessed punitive damages at $15,000.00. Thereafter the court, upon consideration of defendants’ motion for judgment n.o.v., timely filed, granted that ¹⁶⁸ motion. Motions for a new trial were denied.

Judgment absolute was entered in favor of the defendants for costs. Both plaintiffs appealed. In their brief here they pose the questions presented as follows: 1. Was it error to grant Judgment N.O.V. to strike out the Jury verdict of compensatory damages and exemplary damages for Richard Wesko as to malicious prosecution? 2.

Was it error to grant Directed Verdicts as to the claims of Richard Wesko for slander and libel? 3. Was it error to grant Directed Verdicts as to the claims of Richard Wesko for invasion of privacy? 4. Was it error to grant directed verdicts as to the claims of Patricia Wesko for slander and libel, and invasion of privacy? 5. Should all of the claims of Richard Wesko and Patricia Wesko have been submitted to the Jury “en masse”?

In their brief, appellees present these questions: 1. Did the trial court properly rule that there was no legally sufficient evidence of malice to support the verdict against appellees for malicious prosecution of a civil action? 2. Did the trial court properly direct verdicts in favor of appellees as to the counts alleging slander and libel? 3. Did the trial court properly direct verdicts in favor of appellees as to the counts alleging invasion of privacy? 4.

Did the trial court err in its instructions to the jury concerning punitive damages? 5. Did the trial court err in its rulings on the admission of evidence? A contention that it was error to grant the judgment n.o.v. ¹⁶⁹ merely raises the question whether the motion for a directed verdict should have been granted when the motion was made. The single question, as we see it, is whether the evidence was legally sufficient to entitle the jury to find in favor of either or both of the appellants on any of their claims for malicious prosecution, defamation, or invasion of privacy.

The contention of appellants that all of their claims should have been submitted to the jury “en masse” is rare, if not unique. No supporting authority is suggested to us. We know of none. The appellants alleged several different causes of action, combined in one declaration, which Maryland Rule 313 permits them to do.

But before any one of the several causes of action may be submitted to a jury, the evidence supporting it must be sufficient unto itself. Evidence insufficient to support one cause of action may not be borrowed for another cause of action, itself insufficiently proved, so as to add up to legal sufficiency. The People’s Court Judgment The sixth cause of action declared by appellants was based specifically upon the proceedings resulting in the judgment against them in the People’s Court. Such an attack when made in this case was collateral.

No direct attack was ever made. A collateral attack is not permitted. In Board v. Baden Volunteer Fire Dep’t, 257 Md. 666 , 264 A. 2d 844 , the Court of Appeals said at 670-71: “Even if the judgment or decree is erroneous or voidable, matters which might have been raised as a defense in the original action cannot be made the basis of a collateral attack.” See also Fisher v. Demarr, 226 Md. 509 , 174 A. 2d 345 . Not only was the People’s Court judgment unassailed, but anything said in that proceeding by G.E.M. or its agents was privileged.

This privilege was discussed by the Court of Appeals in Kennedy v. Cannon, 229 Md. 92 , 182 A. 2d 54 . The Court said, at 97: “This absolute immunity extends to the judge as well ¹⁷⁰ as to witnesses and parties to the litigation, for defamatory statements uttered in the course of a trial or contained in pleadings, affidavits, depositions, and other documents directly related to the case.” In DiBlasio v. Kolodner, 233 Md. 512, 197 A. 2d 245 , Chief Judge Bruñe discussed the principle further, and reiterated the Court’s view expressed in Kennedy v. Cannon. We have noted that a demurrer to the sixth cause of action was sustained without leave to amend. That cause of action is not before us in this appeal, but we have discussed it because what was separately alleged there was also alleged as a part of the second, fifth, seventh and eighth causes of action.

Since the steps followed by G.E.M. and its agents in obtaining the People’s Court judgment and in recording a copy of that judgment in the Circuit Court were not subject to collateral attack, and were privileged, they constitute no actionable wrong. The second, fifth, seventh, and eighth causes of action must be viewed accordingly. The only additional allegation in the seventh cause of action was that the judgment was improperly recorded in the Circuit Court after the debt was paid. The proof showed otherwise.

We consider the eighth cause of action as alleging a misuse of judicial process only in the attachment of Mr. Wesko’s wages. The second and fifth causes of action, as we view them, as well as the first and third causes of action as alleged, do no more than state some of the consequences of the alleged misuse of judicial process covered in the eighth cause of action. Except for his view at that