Dick v. Mercantile-Safe Deposit and Trust Co., MERCANTILE-SAFE

• Decision Date: 01 September 1984
• Docket Number: No. 1243,MERCANTILE-SAFE,1243
• Parties: Richard D. DICK, et ux., v.DEPOSIT AND TRUST COMPANY, et al. ,
• Court: Court of Special Appeals of Maryland

Page 270

63 Md.App. 270

492 A.2d 674

Richard D. DICK, et ux., v. MERCANTILE-SAFE DEPOSIT AND TRUST COMPANY, et al.

No. 1243, Sept. Term, 1984.

Court of Special Appeals of Maryland.

May 17, 1985.

Thomas G. Slater, Frederick (James W. Respess, Frederick, on the brief), for appellants.

H. Patrick Stringer, Jr., Towson (T. Rogers Harrison and Mudd, Harrison & Burch, Towson, on the brief), for appellees.

Argued before WILNER, ADKINS and BLOOM, JJ.

ADKINS, Judge.

Appellants Richard and Joyce Dick, affronted by conduct and language used during debt-collection efforts by appellee Edward C. Mullendore, vice-president of appellee Mercantile-Safe Deposit and Trust Company, sued Mercantile and Mullendore in the Circuit Court for Frederick County. In their declaration they charged, among other things, violation of the Maryland Consumer Debt Collection Act (count I) and intentional infliction of severe emotional distress (count II). ¹ The court eventually sustained appellees' demurrer without leave to amend. Appellants aver that this was error.

Specifically, appellants argue that the transaction that produced the debt-collection activity was a consumer transaction as defined in § 14-201(c) of the Commercial Law Article. On the basis of this, they contend that Mullendore (and through him Mercantile) used sufficiently "obscene or grossly abusive language in communicating with [them]" to present a jury question of violation of § 14-202(7). And they aver that Mullendore's (and hence the Bank's) conduct was so "extreme and outrageous" as to entitle them to present to a jury their claim of intentional infliction of severe emotional distress.

Since these questions arise on demurrer, we accept as true the well-pleaded factual allegations of appellants' second amended declaration. ² To withstand a demurrer, a declaration "need only allege facts which, if proven, would entitle [the plaintiffs] to relief." Tadjer v. Montgomery County, 61 Md.App. 492, 502-03, 487 A.2d 658 (1985). Our first endeavor, therefore, must be to summarize the well-pleaded facts in appellants' declaration.

Facts

According to the declaration, appellants are licensed pilots, although neither is employed as a commercial pilot. They have a residence in Frederick, Maryland, and another in West Point, Virginia. There are airports near both residences, thus making it convenient to commute between their residences by air.

In 1981, appellants purchased a 1980 Arrow Aircraft. To fund the purchase they borrowed $93,042 from Mercantile. The loan was to be repaid in 84 consecutive monthly installments of $1,107.65, beginning on March 26, 1981. To help defray the cost of the airplane, appellants occasionally leased it to others when they were not using it for personal and family purposes.

Appellants failed to make all their monthly payments on time. Because of their delinquencies, three telephone conversations and one meeting took place, including either or both of appellants and appellee Mullendore. These incidents occurred over a period of about nine months, beginning in May 1982. Putting aside appellants' conclusory characterizations of Mullendore's conduct and language as "threatening, grossly abusive, vindictive, unprofessional and extreme and outrageous," we find the following factual allegations in the declaration:

Mullendore shouted at appellants and spoke in angry tones. He said he had heard they were getting a divorce. He threatened that if appellants declared bankruptcy he would attach their homes and wages. He insisted that delinquent payments be made in cash, rather than by check. He demanded that they not contest a summary judgment proceeding Mercantile had brought to collect its indebtedness. At a meeting with Mrs. Dick at the Frederick Airport, following a third repossession of the airplane, Mullendore again threatened to attach her house and salary, insisted on payment of $441, and thanks to his arrogance, reduced Mrs. Dick to tears. After a fourth repossession, Mullendore called Mrs. Dick at her office and shouted so loudly that a third party who was present could hear his remarks. He interrupted Mrs. Dick throughout this conversation, accused her of lying, and said "[y]ou're not as stupid as you act." When Mrs. Dick suggested that Mercantile might be liable for lost rentals on the airplane, he yelled "[A]re you trying to scare me? I'm not afraid of something like you." Later, Mullendore reported to The Credit Bureau Inc., that Mrs. Dick had a history of delinquent credit obligations.

The question we now address is whether these facts, if proven, would be sufficient to sustain an action either for intentional infliction of emotional distress or for violation of § 14-202(7) of the Commercial Law Article.

Infliction of Emotional Distress

The elements of the tort of intentional infliction of emotional distress are set forth in Harris v. Jones, 281 Md. 560, 566, 380 A.2d 611 (1977), affirming Jones v. Harris, 35 Md.App. 556, 371 A.2d 1104 (1977). They are:

(1) The conduct must be intentional and reckless;

(2) The conduct must be extreme and outrageous;

(3) There must be a causal connection between the wrongful conduct and the emotional distress;

(4) The emotional distress must be severe.

All of these elements must "coalesce" if liability is to be imposed. Id. We focus here on the second element. If the allegations were not sufficient to show extreme and outrageous conduct, the demurrer was properly sustained as to count II even if we assume, arguendo, that the other three elements were adequately alleged.

As to what constitutes extreme and outrageous conduct in the context of this tort, the Court of Appeals has quoted with approval comment d to § 46, Restatement (Second) of Torts. Vance v. Vance, 286 Md. 490, 506, 408 A.2d 728 (1979); Harris, 281 Md. at 567, 380 A.2d 611. That comment explains:

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. [Liability does not extend, however,] to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind....

Put otherwise, extreme and outrageous conduct exists only if "the average member of the community must regard the defendant's conduct ... as being a complete denial of the plaintiff's dignity as a person." Alsteen v. Gehl, 21 Wis.2d 349, 124 N.W.2d 312, 318 (1963). We do not think Mullendore's conduct, as alleged, achieved this level of outrageousness.

The threats made by Mullendore were essentially that he, or Mercantile, would attach appellants' home and wages. A creditor has a right to insist on payment of a just debt, however, and may "threaten to resort to proper legal procedures to enforce the obligation, even if the steps taken cause some degree of mental anguish and anxiety." Annot., 87 A.L.R.3d 201, 205 (1978). As to the repossessions, appellees had the right to repossess the collateral when appellants were in default.

As to harassment by telephone call, the number of calls involved here were fewer, and their content less threatening, than those held not to constitute harassment in Household Finance Corp. v. Bridge, 252 Md. 531, 250 A.2d 878 (1969). Moreover, one of the calls in the case sub judice was initiated by Mrs. Dick, not by Mullendore. The "lying" accusation may have been rude, but it surely did not amount to "a complete denial of [Mrs. Dick's] dignity as a person." So far as shouting is concerned, the declaration suggests that this was often mutual and that there was considerable thrust and parry during the conversations. In any case, in Continental Casualty Co. v. Mirabile, 52 Md.App. 387, 405, 449 A.2d 1176 (1982), we held that "yelling and screaming" by a supervisor at "an extremely sensitive young man," although perhaps rude and violent, did not amount to conduct so extreme and outrageous as to establish intentional infliction of emotional distress.

Nor can the inquiries about appellants' marital status be viewed as extreme and outrageous under the circumstances. Mullendore was concerned about a delinquent $93,000 loan, the primary source for repayment of which was the joint incomes of Mr. and Mrs. Dick. Appellants themselves offered their (apparently temporary) separation as an excuse for some missed payments.

The conduct and language involved in cases such as Harris and Mirabile fairly can be said to have been more egregious than that alleged here, yet in those cases recovery was denied. Of similar import is Beye v. Bureau of National Affairs, 59 Md.App. 642, 477 A.2d 1197, cert. denied, 301 Md. 639, 484 A.2d 274 (1984). There, the plaintiff alleged that for six years, his supervisor, among other things, "threatened to fire him, harassed him and physically assaulted him...." Affirming the sustaining of a demurrer, we held that the allegations failed to establish extreme and outrageous conduct. See also Alsteen, 124 N.W.2d 312; and Public Finance Corp. v. Davis, 66 Ill.2d 85, 4 Ill.Dec. 652, 360 N.E.2d 765 (1976). The short of it is that if appellants' allegations are true (as we must take them to be for purposes of demurre...