Lary v. Flasch Business Consulting

• Decision Date: 31 October 2003
• Citation: 878 So.2d 1158
• Parties: John LARY d/b/a Internal Medicine Clinic v. FLASCH BUSINESS CONSULTING et al.
• Court: Alabama Court of Civil Appeals

878 So.2d 1158

John LARY d/b/a Internal Medicine Clinic v. FLASCH BUSINESS CONSULTING et al.

2020803.

Court of Civil Appeals of Alabama.

October 31, 2003.

John Lary, pro se.

Robert N. Bailey II and Jeffrey T. Kelly of Lanier Ford Shaver & Payne, P.C., Huntsville, for appellees.

Amicus curiae Robert Bickerstaff, Mt. Pleasant, South Carolina, in support of the appellant.

PITTMAN, Judge.

John Lary, a physician and the sole proprietor of Internal Medicine Clinic, appeals from a judgment of the Madison Circuit Court dismissing, pursuant to Rule 12(b)(6), Ala. R. Civ. P., Lary's action against Flasch Business Consulting, Helmut Flasch, and Doctor Relations, Inc., arising out of the defendants' sending of unsolicited facsimile ("fax") messages to Lary via telephone lines. We affirm in part, reverse in part, and remand.

"On appeal, a dismissal is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6) [, Ala. R. Civ. P.,] is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986)."

Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993); see also Access Capital, Inc. v. Uptown, Inc., 863 So.2d 1127, 1128 (Ala.Civ.App.2003).

According to the complaint as amended, Lary provides medical services, including emergency medical services, under the name Internal Medicine Clinic. Lary has secured the use of a telephone line that is connected to both a telephone and a fax machine and that Lary uses to make and receive, among other things, emergency telephone calls and fax transmissions related to the rendition of emergency medical services. Lary alleged that the defendants, without permission from Lary, transmitted or caused the transmission of unsolicited advertisements via telephone wires to Lary's fax machine despite the absence of an established business relationship between Lary and the defendants. In addition to alleging claims under Alabama law of conversion and invasion of privacy, the complaint averred that the defendants' conduct had violated four subsections of 47 U.S.C. § 227, a portion of the Telephone Consumer Protection Act of 1991 ("the TCPA") as codified. Photocopies of several documents purporting to be unsolicited advertisements sent to Lary's fax machine by the defendants were attached as exhibits to Lary's amended complaint.

Rather than filing an answer, the defendants filed a motion, pursuant to Rule 12(b)(6), Ala. R. Civ. P., to dismiss Lary's complaint. In that motion, the defendants contended that Lary did not have a private right of action under the TCPA and that the complaint did not state invasion-of-privacy or conversion claims cognizable under Alabama law. After a hearing, the trial court entered a judgment granting the defendants' motion to dismiss. Lary appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to § 12-2-7(6), Ala.Code 1975.

In his initial appellate brief, Lary argued that the trial court erred in granting the motion to dismiss as to each of his claims. However, following the submission of that brief and the appellees' brief, he filed what he termed a "Notice of Voluntary Dismissal of Common Law Claims" in which he indicated that he now seeks review only of the trial court's judgment as to his claims arising under the TCPA; his reply brief confirms that this action leaves only the propriety of the trial court's judgment as to those claims for this court's review. Although it is doubtful that Lary's "notice of dismissal" can properly be construed as a notice of dismissal under Rule 41(a), Ala. R. Civ. P., because of the intervening judgment on the merits (and his appeal therefrom), it is well settled that where an appellant expressly waives error in this court, we will disregard that error as a basis of reversal. See, e.g., Baggett v. Webb, 46 Ala.App. 666, 670, 248 So.2d 275, 278 (Civ.1971), and Rowan v. Rowan, 45 Ala.App. 505, 506, 232 So.2d 685, 686 (Civ.1970) (declining to consider "assignments of error" that had been "expressly waived"). We therefore affirm the judgment of the trial court as to Lary's state-law invasion-of-privacy and conversion claims and review the trial court's judgment only as to his claims arising under the TCPA.

Congress enacted the TCPA in 1991, noting, among other things, that "[u]nrestricted telemarketing ... can be an intrusive invasion of privacy and, when an emergency or medical assistance telephone line is seized, a risk to public safety"; Congress also stated that a federal law governing telemarketing practices was necessary because telemarketers could, at that time, evade the prohibitions of state laws restricting telemarketing "through interstate operations." Pub.L. No. 102-243, § 2, 105 Stat. 2394 (1991). The TCPA, in addition to imposing other standards regarding certain uses of telephone equipment, provides, in pertinent part, that it is unlawful for any person in the United States to make any telephone call using an automated telephone dialing system, other than a call made for emergency purposes or made with the prior express consent of the party being called, "to any emergency telephone line," which includes "any emergency line of a ... medical physician or service office" or a "health care facility." 47 U.S.C. § 227(b)(1)(A)(i). The TCPA also specifically forbids the use of "any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine." Id. at § 227(b)(1)(C). Subsection (b) of 47 U.S.C. § 227, in which those prohibitions appear, also states, among other things, that "[a] person or entity may, if otherwise permitted by the laws or rules of court of a State, bring... an action to recover for actual monetary loss from" a violation of that subsection "or to receive $500 in damages for each such violation, whichever is greater." 47 U.S.C. § 227(b)(3) (emphasis added).¹

The correct interpretation of the phrase "if otherwise permitted by the laws or rules of court of a State" is crucial to the proper disposition of Lary's appeal of the judgment insofar as it dismissed the claims in his complaint alleging violations of 47 U.S.C. § 227(b)(1)(A)(i) and § 227(b)(1)(C). There is a split of authority among the various states concerning whether Congress envisioned that the "permission" of a state necessary for a private party to bring an action under 47 U.S.C. § 227(b)(3) would be tacit permission or express permission. Put another way, we must determine whether, under the TCPA, a state must expressly "opt out" of the state-court enforcement mechanism in order for the courts of that state not to have jurisdiction of claims seeking to enforce 47 U.S.C. § 227(b), or whether a state must expressly "opt in" to the state-court enforcement mechanism in order for the courts of that state to exercise jurisdiction of such claims?² To date, published decisions from Georgia, Missouri, New Jersey, New York, and Pennsylvania have all concluded that 47 U.S.C. § 227(b)(3) confers jurisdiction upon state trial courts to entertain actions alleging violations of 47 U.S.C. § 227(b) despite the lack of laws or court rules expressly showing an intent to "opt in." Hooters of Augusta, Inc. v. Nicholson, 245 Ga.App. 363, 537 S.E.2d 468 (2000); Reynolds v. Diamond Foods & Poultry, Inc., 79 S.W.3d 907, 910 (Mo.2002) ("the TCPA does not condition the right to bring a private cause of action under it on a state's adoption of specific legislation permitting such suits[; s]uit may be brought unless a state does not otherwise permit such a suit"); Zelma v. Market U.S.A., 343 N.J.Super. 356, 778 A.2d 591 (App.Div.2001); Schulman v. Chase Manhattan Bank, 268 A.D.2d 174, 710 N.Y.S.2d 368 (2000); Aronson v. Fax.com, Inc., 51 Pa. D. & C. 4th 421 (Com. Pleas 2001); cf. Kaufman v. ACS Sys., Inc., 110 Cal.App.4th 886, 2 Cal.Rptr.3d 296 (2003) (finding that trial court had jurisdiction to consider claim under 47 U.S.C. § 227(b)(3) because state legislature had never enacted law barring such claims); In re Rules and Regs. Implementing the Tel. Consumer Protection Act of 1991, 7 F.C.C.R. 8752, ¶ 55 (1992) (Federal Communication Commission Report and Order noting existence of private right of action under 47 U.S.C. § 227(b)(3) "[a]bsent state law to the contrary").

In contrast to those authorities, only one reported decision has unequivocally espoused the "opt in" theory. Autoflex Leasing, Inc. v. Manufacturers Auto Leasing, Inc., 16 S.W.3d 815, 817 (Tex.App.2000) ("we hold that Congress intended the states to pass legislation or promulgate court rules consenting to state court actions based on the TCPA, before such suits under the TCPA may be brought in state courts").³ Maryland's Court of Special Appeals, although declining to adopt the reasoning of Autoflex, has concluded that no private right of action existed in that state under 47 U.S.C. § 227(b)(3) because the Maryland legislature had adopted legislation barring unsolicited faxes but had limited standing to sue under that le...