FELLAND LID PARTNERSHIP v. Digi-Tel

• Decision Date: 22 December 2004
• Docket Number: No. 20,20
• Citation: 864 A.2d 1027,384 Md. 520
• Parties: FELLAND LIMITED PARTNERSHIP v. DIGI-TEL COMMUNICATIONS, LLC.
• Court: Maryland Court of Appeals

864 A.2d 1027

384 Md. 520

FELLAND LIMITED PARTNERSHIP v. DIGI-TEL COMMUNICATIONS, LLC.

No. 20, September Term, 2003.

Court of Appeals of Maryland.

December 22, 2004.

Reconsideration Denied February 2, 2005.

Stephen H. Ring (Stephen H. Ring, P.C., on brief), Gaithersburg, for petitioner.

Roger W. TItus (Samantha M. Williams, Venable, LLP, on brief), Rockville, for respondents.

Argued before BELL, C.J., ELDRIDGE,¹ RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

ELDRIDGE, J.

This is a private action, for monetary damages, under the Telephone Consumer Protection Act, 47 U.S.C. § 227, against an employer based upon an employee's alleged violations of the federal statute. The alleged violations consisted of broadcasting unsolicited commercial telephone facsimile advertisements. The trial court granted the defendant's motion for summary judgment on the ground, inter alia, that the employee's actions were not within the scope of his employment and that, therefore, the employer was not liable, under the principle of respondeat superior, for the employee's actions. The Court of Special Appeals affirmed on an alternative ground which had also been relied on by the trial court. We shall hold that the evidence was insufficient to generate a triable issue that the employee's alleged unlawful actions were within the scope of his employment. Consequently, we shall affirm the decisions below on this ground.

I.

The basic facts relevant to the scope of employment issue in this case are, for the most part, undisputed. To the extent that there is any dispute over these facts or the reasonable inferences to be drawn from them, we shall set forth such facts or inferences in the light most favorable to the plaintiff. See, e.g., Lee v. Cline, 384 Md. 245, 863 A.2d 297 (2004)

; Walk v. Hartford Casualty, 382 Md. 1, 14, 852 A.2d 98, 106 (2004); Jurgensen v. New Phoenix, 380 Md. 106, 114, 843 A.2d 865, 869 (2004); Sadler v. Dimensions Healthcare Corp., 378 Md. 509, 533-534, 836 A.2d 655, 669 (2003); Remsburg v. Montgomery, 376 Md. 568, 579-580, 831 A.2d 18, 24 (2003).

The defendant-respondent, Digi-Tel Communications, LLC, was formed in 1998 as a limited liability company organized pursuant to the laws of Virginia. The company sells cellular telephones and service as an authorized representative of Nextel Communications, Inc. Digi-Tel has retail business locations in the following municipalities: Fairfax, Virginia; Winchester, Virginia; Vienna, Virginia; Rockville, Maryland; and Baltimore, Maryland.

In 1999, Digi-Tel hired John Taylor as a sales representative. The written employment contract between Digi-Tel and Taylor, in the first paragraph of the contract, provided that "[t]he duties of the Representative [Taylor] shall be those of a sales representative and in connection therewith the Representative shall represent the Company in the solicitation, sale, lease and promotion of products to purchasers, and users of such products and services." The employment contract went on to provide, in paragraph six, that Digi-Tel had the right "to set policies, standards and guidelines for the conduct" of the sales representative, that the sales representative agreed to abide by such policies, standards and guidelines, and that Digi-Tel's policies and procedures were incorporated into the employment contract. Paragraph 16 of the employment contract stated that the sales representative "shall in no case be authorized to change, modify or make exceptions to Company policies [and] procedures ..., nor enter into any agreement or contract which would bind the Company for any debt or obligation." The contract recited that Digi-Tel "shall not compensate" Taylor "for certain travel, or entertainment, expenses related to performing the business of the Company" and that Digi-Tel would pay to Taylor "commissions on all sales completed by" Taylor. Taylor's only compensation from Digi-Tel consisted of the sales commissions.

The written employment contract between Digi-Tel and Taylor did not mention advertising at all. Thus, the employment contract itself neither expressly authorized nor expressly prohibited Taylor from creating and using advertising via facsimile to sell the Nextel products and services. Nevertheless, the written contract between Digi-Tel and Nextel required that all of Digi-Tel's advertising "must receive Company's [Nextel's] prior written approval."

Several affidavits, the deposition of John Taylor, the pertinent contracts, and other documents were submitted to the trial court in connection with Digi-Tel's motion for summary judgment and the plaintiff's opposition thereto. The affidavit by the President of Digi-Tel stated in relevant part as follows:

"3. Digi-Tel sells cellular telephones and service for Nextel Communications, Inc. (`Nextel') pursuant to a contract. A true and correct copy of Digi-Tel's contract with Nextel is attached hereto as Exhibit A.

"4. Virtually all of Digi-Tel's advertising materials, including flyers, are created by Nextel. Digi-Tel does not create its own advertising because all such advertising would have to be approved by Nextel in advance pursuant to a clause of the contract...."

"5. Digi-Tel employs a full-time Director of Marketing, Sam Talbert, who is responsible for placing advertisements on Digi-Tel's behalf. The bulk of Digi-Tel's advertising is done through newspaper and radio. Talbert does not have the authority to place an advertisement without my approval or the approval of one of the other two officers of the company.

"6. Digi-Tel does not, and has never, used fax machines to promote its business or to advertise in any way. Digi-Tel has only seven fax machines and these are used for receiving incoming faxes or communicating with current customers or other entities with whom Digi-Tel does business."

* * *

"9. Taylor's duties for Digi-Tel are to sell cellular telephones and service for which he is compensated on a commission-only basis. Taylor's duties do not include creating or placing advertisements for Digi-Tel.

"10. Taylor is assigned to work out of Digi-Tel's Virginia office during normal business hours. Digi-Tel provides Taylor with a cubicle, a desk, and a telephone to enable him to sell Digi-Tel's products. In addition, Digi-Tel provides Taylor with all advertising materials, including written flyers, which are, in turn, provided to Digi-Tel by Nextel.

"11. Digi-Tel did not learn that Taylor had hired Capital Fax (`Capital') to send advertisements regarding Digi-Tel's services until January 2002, when Digi-Tel's attorneys provided Digi-Tel with a copy of Exhibit A referenced in the Complaint and bearing John Taylor's name.

"12. Taylor's actions in creating an advertising flyer and hiring Capital were all done without the knowledge of Digi-Tel and were wholly unauthorized."

John Taylor's affidavit set forth the nature of his duties for Digi-Tel and the facts underlying the alleged violations of the federal Telephone Consumer Protection Act. The pertinent portions of the affidavit are as follows:

"3. My duties for Digi-Tel are to sell Nextel Communications, Inc. (`Nextel') cellular telephones and service for which I am compensated on a commission-only basis. I have no other duties.

"4. I am assigned to work out of Digi-Tel's Fairfax, Virginia office during normal business hours. Digi-Tel provides me with a cubicle, a desk, and a telephone to enable me to sell Digi-Tel's products. In addition, all advertising materials are provided to me by Digi-Tel. I have been instructed by Digi-Tel to obtain advertising flyers by accessing Nextel's web site and printing out the flyers created by Nextel.

"5. My duties do not include creating or placing advertisements for Digi-Tel.

"6. I do not have authority to enter into contracts on Digi-Tel's behalf or to create advertising materials for Digi-Tel.

"7. In early January 2001, I was walking past the fax machine in Digi-Tel's Fairfax, Virginia office and saw an advertisement that had been faxed to Digi-Tel from Capital Fax (`Capital'). In the advertisement, Capital offered to send faxes to people in the Washington/Baltimore area for a fee.

"8. Without informing anyone at Digi-Tel, I took Capital's advertisement off the fax machine, out of curiosity, and contacted Kevin Conner, the Capital employee referenced in the advertisement. Conner assured me that Capital's services were legal. I did not keep and no longer have a copy of Capital's advertisement.

"9. As a result of my conversation with Conner, I received a letter and a price list from Capital. A true and correct copy of the information I received from Capital is attached as Exhibit B.

"10. Without informing anyone at Digi-Tel, I decided to hire Capital on my own. I provided Capital with an advertising flyer that I created initially on my computer. I also gave Capital my personal check for $100. It was my understanding that I was hiring Capital on my own behalf and not on behalf of Digi-Tel. Capital modified the flyer that I prepared by adding language at the bottom giving instructions to recipients who receive the flyer in error.

"11. In the second half of February 2001, Conner provided me with a list of the telephone numbers to which Capital had faxed my flyer. I did not keep the list and do not have it.

"12. I have never requested reimbursement from Digi-Tel for the $100 I paid to Capital, nor have I been reimbursed.

"13. I never informed anyone at Digi-Tel about my dealings with Capital until January 2002, when the President of Digi-Tel showed me the Complaint that had been filed against Digi-Tel and a copy of the flyer that I had created."

Taylor stated in his deposition testimony that he had, sometime in the past, read a Digi-Tel written "form" which had informed Digi-Tel's sales representatives that the use of "e-mail" and "faxes" was limited and that, "whether it be an e-mail or a fax, you can only send that to your own customers that you have already." Taylor testified that he...