APPEAL FROM THE SUPERIOR COURT, PATRICIA A. WYNN, J. [711 A2d Page 813]
Before Steadman, Schwelb, and Ruiz, Associate Judges.
The opinion of the court was delivered by: Schwelb, Associate Judge.
A jury awarded Robert G. Homan $40,000 against Devinder Goyal as compensatory damages for intentional infliction of emotional distress. On January 18, 1996, in a written order, the trial judge granted Goyal's motion for judgment notwithstanding the verdict (JNOV). On appeal, Homan contends that there was sufficient evidence to support the jury's verdict. We agree with Homan. Accordingly, we reverse. [711 A2d Page 814]
THE TRIAL COURT PROCEEDINGS
This is the kind of case that could persuade the cynical reader who believes he has seen it all that something new and different may still be lurking around the corner.
(1) Robert Homan's testimony.
Prior to January 1993, Robert Homan, a Senior Evaluator at the General Accounting Office, had never heard of Gabriel DaSilva or Devinder Goyal. Beginning at about 1 a.m. on Tuesday, January 12 of that year, however, Homan received a series of telephone calls from a man who identified himself as Gabriel DaSilva. The caller claimed on each occasion that Homan had DaSilva's wife, Irene, and demanded to speak to Irene. Homan repeatedly explained to the caller that he had the wrong number and that Homan did not know Irene. Homan eventually hung up, but DaSilva continued to call back, sometimes as often as twenty times a night. Homan reported the bizarre calls to the police, and an officer spoke to the caller. Nevertheless, DaSilva was undeterred and continued to call for several days. According to Homan, the calls became progressively more hostile.
During the course of these conversations, Homan asked DaSilva where he had obtained Homan's telephone number. DaSilva revealed that he had received the number from a certified public accountant named Devinder Goyal. DaSilva insisted that he knew he had the right number because Goyal had given it to him.
On January 13, 1993, following DaSilva's disclosure of the source of his purported information, Homan telephoned Goyal at Goyal's office. Homan told Goyal about the bizarre calls that he had been receiving from DaSilva. Goyal explained to Homan that DaSilva's wife, Irene DaSilva, had briefly been employed by Goyal. According to Goyal, DaSilva had been beating his wife, and Mrs. DaSilva had left her husband. Goyal told Homan that for the year or so following Mrs. DaSilva's departure, Gabriel DaSilva had been "on the warpath" in search of his wife and harassing Goyal regarding the wife's whereabouts. In fact, Goyal later told Homan that DaSilva had called Goyal at his office "maybe twenty times a day for the last year," and had made it difficult for Goyal to run his business. Homan told Goyal his (Homan's) telephone number, and Goyal confirmed that this was the number that he (Goyal) had given to DaSilva. Homan asked Goyal where Goyal had obtained Homan's number, and Goyal responded that he had received it from a friend called Paul. Goyal agreed to tell DaSilva that Homan's number was the wrong number, and Homan hoped that this information would deter DaSilva from continuing his contacts with Homan.
Homan testified, however, that the telephone calls did not stop in the wake of his initial conversation with Goyal. Instead, they continued unabated during the weekend of January 16-17. Homan testified that he spoke with Goyal again on Thursday, January 21, and that
again I asked him would you please speak to Gabriel again and he said that he would and I was a little frustrated at that point. I said, frankly I don't know why you would give a telephone number to any man who used to beat up his wife and say here's your ex-wife, and [Goyal] had no response and that was the end of the conversation.
Meanwhile, Homan contacted the telephone company, which traced the unwelcome calls to DaSilva. According to Homan, the company apparently sent a registered letter to DaSilva threatening to cut off DaSilva's telephone service. As a result, the calls from DaSilva stopped for approximately a week, and Homan believed that the problem had finally been resolved. Once again, he was wrong.
On January 25, 1993, shortly after Homan returned home from work, he received a "beep" from DaSilva (apparently on the apartment house intercom). DaSilva disclosed that he was downstairs in front of Homan's building. As he had done in the past, DaSilva demanded to see his wife, Irene. [711 A2d Page 815]
Homan decided to go downstairs to "try and talk some sense into this guy." He spoke with DaSilva in the lobby. DaSilva was in possession of a yellow "post-it" note with Homan's address on it. *fn1 Homan and a neighbor attempted to assure DaSilva that Homan did not know Mrs. DaSilva and that "there haven't been any Indian women going in and out of my apartment," but DaSilva demanded to go into the apartment to see for himself. Homan declined to admit DaSilva to Homan's apartment. DaSilva pursued Homan to the apartment, which was on the fifth floor. Homan locked the door, and DaSilva banged on the door with considerable ferocity for about twenty minutes. Homan called the police, but by the time officers arrived, DaSilva had left.
Homan testified that an hour or so after the personal encounter between the two men, DaSilva telephoned once again. On this occasion, DaSilva "said very distinctly five times I'm going to kill you." Homan hung up. DaSilva later repeated the death threat in a subsequent phone call; this time, Homan's friend, Daniel McGoldrick, was listening on another extension. *fn2 Fearing for his life, Homan left his apartment and moved in with McGoldrick and McGoldrick's wife in their home in Arlington, Virginia for approximately one month. Homan also obtained an unlisted number for his own apartment.
In the wake of this escalation of DaSilva's harassment, Homan believed that he "needed to get some information was this a credible threat." He testified that he called Goyal a dozen times, and that he advised Goyal's secretary that Gabriel DaSilva had showed up at Homan's home and had threatened to kill Homan. According to Homan, however, Goyal would not take his calls. *fn3
In response to a question as to how these events affected him, Homan testified:
Well, I mean this turned my life upside down. I had no idea what was happening to me. I wasn't living in my own home. I didn't know if I could go back home. I didn't know how this was going to end. The one person that could provide information for me refused to talk to me. It appeared as if I had been singled out for some unknown reason. A crazy person had been sicked after me and I couldn't explain why.
I had to explain to all my friends and family why I had to get an unlisted number. I had to explain to my employers why I was missing work. I had to miss work to go look for a new place to live, and it was really hard to focus on my work. Every time I would leave the apartment — well, I moved home after about a month, but every time I would walk around the street I'd wonder, you know, is this guy following me. I had no idea what was going on.
[H]e kept repeating the same thing, I got this number from Mr. Goyal and it just kept escalating. . . . I mean I never thought that he would come to my house, and then when he did that and he threatened to kill me and I said well, if you threaten to kill me maybe he will kill me. I don't know. I didn't know what to do.
(2) Gabriel DaSilva's testimony.
DaSilva, an immigrant from India who worked as a chef, was called as a witness for the plaintiff. DaSilva substantially corroborated Homan's testimony. DaSilva explained that his wife had briefly worked for Goyal, and that he (DaSilva) was convinced that she and Goyal were having an affair. *fn4 DaSilva acknowledged that he had beaten his wife on [711 A2d Page 816]
one occasion, apparently to punish her for her supposed infidelity.
DaSilva related that after his wife left him, he was "crying and just calling [Goyal], where's my wife, where's my wife, you know." He testified that he continued to make these calls every day for almost a year. He also stated ...