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01/15/93 STERLING MIRROR MARYLAND v. DAISY GORDON

January 15, 1993

STERLING MIRROR OF MARYLAND, INC., APPELLANT
v.
DAISY GORDON, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Rufus G. King, III, Trial Judge)

Before Ferren, Wagner, and King, Associate Judges. Opinion for the court by Associate Judge Wagner. Dissenting opinion by Associate Judge Ferren.

The opinion of the court was delivered by: Wagner

WAGNER, Associate Judge: Appellant, Sterling Mirror of Maryland, Inc. (Sterling), appeals from a judgment awarding appellee, Daisy Gordon (appellee), $1,000 in damages on her counterclaim which alleged that Sterling harassed her by telephone while attempting to collect the balance due on Sterling's contract with her husband, John Gordon, for the installation of mirrors at the Gordons' home. Appellant argues that the trial court erred in finding it liable because the facts do not support a claim under the Federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692a-1692k (1982) (Debt Collection Act), the D.C. Consumer Credit Protection Act, D.C. Code §§ 28-3801 to -3819 (1991) (Consumer Act), nor any common law cause of action. We agree and reverse.

I.

Appellant filed a complaint for damages for breach of contract against appellee and her husband, John Gordon, in connection with the installation of mirrors in the Gordons' home. Only Mr. Gordon signed the two contracts which precipitated the dispute, although the second contract reflected the sale of the mirrors to John and Daisy Gordon. The first contract, dated December 6, 1988, was for $4,207.50, and the second, dated January 20, 1989, was for $1,325. Appellee's telephone number was listed as the contact person on the first contract. The trial court found, and it is not challenged on appeal, that the second contract replaced the first.

A dispute arose between the parties about a mirror chipped during installation, and Mr. Gordon refused to pay the balance due under the contract. In an attempt to collect the balance, Sterling's employee made numerous calls to appellee's place of employment. Sterling then filed suit for breach of contract against appellee and Mr. Gordon. Mrs. Gordon counterclaimed for damages for harassment based on telephone efforts by Sterling to collect the outstanding balance. The trial court entered judgment for Sterling and against John Gordon in the amount of $635 for breach of contract and dismissed Sterling's complaint against Daisy Gordon. The court awarded Daisy Gordon $1,000 in damages on her counterclaim and found against Mr. Gordon on his counterclaim. Sterling appeals from the judgment in favor of Mrs. Gordon on the counterclaim.

II.

Appellant argues that the trial court erred in imposing liability and awarding damages without statutory authority or a basis in common law. Specifically, Sterling contends that neither the Debt Collection Act nor the Consumer Act applies in this case, and there is no other basis for recovery. We agree.

The Debt Collection Act prohibits certain unfair debt collection practices by persons engaged in the debt collection industry. Crossley v. Lieberman, 868 F.2d 566, 570 (3rd Cir. 1989). *fn1 It covers the activities of collection agents working on behalf of third parties, rather than those of creditors attempting to collect debts owed to them directly by debtors, as in the instant case. Id.; Kizer v. Finance America Credit Corp., 454 F. Supp. 937, 939 (N.D. Miss. 1978) ("debt collectors" covered by Act are those who regularly collect debts for others and not creditors of consumers even though debt created between consumer and third person and subsequently assigned to creditor); Mendez v. Apple Bank for Sav., 143 Misc. 2d 915, 541 N.Y.S.2d 920, 923 (N.Y. City Civ. Ct. 1989) (statute reflects legislature's belief that third party debt collectors are prime source of egregious collection practices). Appellant does not fall within the categories of debt collectors covered. The plain language of the statute does not include actions of a creditor taken in an effort to collect its own debts directly from its debtors. Sterling is a creditor which falls within this exclusion.

Here, Sterling was attempting to collect a debt by telephone calls made by its employee to appellee, one of the recipients of the merchandise. An employee of a creditor seeking to recover a debt on the employer's behalf likewise is not within the coverage of the Act. 15 U.S.C. § 1692a (6)(A). Even though appellant called the wife of the actual debtor, the Debt Collection Act does not prohibit such actions insofar as creditors seeking to recover debts due to them as opposed to debts due to third party creditors. Thus, the trial court's decision to award $1,000 in civil damages cannot rest upon the provision of the Debt Collection Act which allows civil damages not to exceed $1,000 to an individual aggrieved by a debt collection violation under the Act. *fn2

Nor can support for the trial court's decision be found in the Consumer Act. That Act is limited by its terms to "actions to enforce rights arising from a consumer credit sale or a direct installment loan." D.C. Code § 28-3801 (1991). Neither a consumer credit sale *fn3 nor a direct installment loan *fn4 was involved. The basis of appellant's claim was a contract under the terms of which the purchaser paid a deposit and agreed to pay the balance upon delivery and installation of the merchandise.

Absent a statutory basis for the trial court's decision awarding damages to appellee, we review to determine whether recovery is based properly upon some common law theory of liability. *fn5 Appellee contended at trial that she was subjected to telephone harassment by Sterling, and the trial court agreed, as reflected in its finding, and awarded damages. Appellee's testimony reveals no actual damages. At best, appellee's claim is for mental disturbance caused by Sterling's calls. The only possible theory of recovery for mental distress associated with the calls, but one which cannot be made on the facts presented, is one for intentional infliction of emotional distress. *fn6 Liability for such an action is predicated upon conduct so outrageous and extreme as to exceed the bounds of decency and to be regarded as atrocious and intolerable in a civilized society. Bown v. Hamilton, 601 A.2d 1074, 1079 (D.C. 1992); Waldon v. Covington, 415 A.2d 1070, 1076 (D.C. 1980). Liability will not be imposed for mere indignities or annoyances for this cause of action. Id. A prerequisite to recovery is an intent on the part of the alleged tortfeasor to cause a disturbance in another person's emotional tranquility so acute that harmful physical consequences might result. Id. at 1077. The requisite intent may be inferred from the outrageous character of the offensive actions or circumstances which impart to a reasonable person the likelihood that emotional or physical harm will result. See id. The facts of this case do not support such a claim.

Appellee testified that she received telephone calls from someone at Sterling who said that she owed them money and that they had tried to reach her husband. Appellee also testified that her supervisor informed her that Sterling's representatives called and that she suspected she was moved to another work station because of the calls. However, appellee proved no actual damages, and she did not claim that she personally suffered emotional distress as a result of Sterling's actions. Neither Sterling's conduct as described by appellee in her testimony at trial nor its consequences to her as disclosed by the evidence rises to the level required to support a claim for intentional infliction of emotional distress.

We disagree with our Dissenting colleague that the record is inadequate for review. On the contrary, appellant designated as the record on appeal, inter alia, a transcript of appellee's testimony, all trial exhibits, and a transcript of the trial court's findings of facts and Conclusions of law. *fn7 Our rules and case law do not require an appellant to provide the entire trial transcript nor all pleadings. Rather, "the normal practice is to obtain a verbatim transcript of the pertinent trial proceedings. . . ." Cobb v. Standard Drug Co., Inc., 453 A.2d 110, 111 (D.C. 1982). D.C. App. R. 10 (c)-(g). The rules contain explicit provisions for allowing an appellant to designate only portions of the transcript. See D.C. App. ...


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