Ziobron v. Crawford

• Decision Date: 21 June 1996
• Docket Number: No. 49A05-9505-CV-162,49A05-9505-CV-162
• Citation: 667 N.E.2d 202
• Parties: Eugene G. ZIOBRON, Appellant-Plaintiff v. Shirley Palmer CRAWFORD, a/k/a, Shirley L. Palmer, Mary M. Brown, Louis Rosenberg, Timothy O'Connell, UAW Legal Services Plan (Chrysler), Jointly and Severally, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 202

667 N.E.2d 202

Eugene G. ZIOBRON, Appellant-Plaintiff v. Shirley Palmer CRAWFORD, a/k/a, Shirley L. Palmer, Mary M Brown, Louis Rosenberg, Timothy O'Connell, UAW Legal Services Plan (Chrysler), Jointly and Severally, Appellees-Defendants.

No. 49A05-9505-CV-162.

Court of Appeals of Indiana.

June 21, 1996.

Rehearing Denied Aug. 29, 1996.

Eugene G. Ziobron, Indianapolis, for Appellant.

Judith E. Seubert, Indianapolis, for Appellees.

OPINION

ROBERTSON, Judge.

Attorney Eugene G. Ziobron appeals the dismissal of his complaint which alleged, among other claims, malicious prosecution, against Shirley L. Palmer and her attorneys, Mary M. Brown, Louis Rosenberg, Timothy O'Connell, and the UAW Legal Services Plan (Chrysler) [collectively referred to herein as UAW Legal Services]. The dispositive issue which requires that we reverse may be restated as:

whether Ziobron's complaint and the materials relied upon below sufficiently support a claim of malicious prosecution. ¹

FACTS

The dispositive facts are largely undisputed. Although collection actions represent a very small percentage of Ziobron's legal practice, he represented Garage Doors, Inc. in an effort to collect a debt owed by Palmer. To this end, Ziobron sent Palmer a demand letter dated September 16, 1991, which read in pertinent part as follows:

Re: Garage Doors of Indianapolis, Inc.

Total Amt. Past Due Including Interest: $515.00

Dear Ms. Palmer:

The above-referenced past due account has been forwarded to me for collection. This is to advise you that unless payment in full is received within ten (10) days from the date hereof, a suit to collect same will be commenced. If a lawsuit is initiated, interest and costs will be added to the sum past due, and attorney fees will be sought.

Unless payment in full is made within the aforementioned time, I will assume that it is your desire for me to initiate legal proceedings. It is your decision as to what course of action is pursued.

Thank you for your cooperation in this matter. Kindly direct all correspondence and payments to this office.

Palmer ultimately paid the debt in full.

It has never been alleged that Ziobron's letter was harassing, misleading, or abusive. Palmer has not claimed that she was harmed in any way by the letter, nor has she disputed that she owed the debt.

After the collection case was settled, Palmer, by UAW Legal Services, sued Ziobron in federal court under the Fair Debt Collection Protection Act [FDCPA], 15 U.S.C. § 1692. UAW Legal Services alleged that Ziobron's letter violated the Act by failing to include the debt collection warning required by 15 U.S.C. § 1692e(11) which reads [T]his is an attempt to collect a debt. Any information obtained will be used for that purpose.

The complaint also alleged that the letter lacked the verification notice as required by 15 U.S.C. § 1692g. UAW Legal Services requested an award of actual damages, statutory damages of $1,000.00 per violation, costs and attorney's fees as provided by 15 U.S.C. § 1692k.

UAW Legal Services prosecuted the lawsuit against Ziobron for approximately one year during which Ziobron defended himself pro se. After partial discovery, the court determined that the dispositive issue in the litigation was whether Ziobron was a "debt collector" as that term had been defined and interpreted under the 15 U.S.C. § 1692a(6). Ziobron moved for summary judgment. Ultimately, UAW Legal Services voluntarily dismissed the lawsuit, apparently conceding that Ziobron was not a "debt collector" due to the limited nature of his collection practice.

Ziobron brought the present lawsuit for malicious prosecution among other claims. The trial court dismissed his complaint, and this appeal ensued. Additional facts are supplied as necessary.

DECISION

The parties utilized materials outside the pleadings in arguing the motion to dismiss before the trial court. Accordingly, the present proceedings have been transformed into a motion for summary judgment by operation of Ind. Trial Rule 12(B)(8). J.A.W. v. Roberts, 627 N.E.2d 802, 806 n. 1 (Ind.Ct.App.1994). In such cases, our standard of review is well-settled. Id. at 807. We must determine whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Id. In doing so, we stand in the shoes of the trial court and construe all evidence properly designated by the parties in favor of the nonmoving party. Id. Even if facts are not in dispute, summary judgment is inappropriate if conflicting inferences arise from the undisputed facts. Id.

I. Record on Appeal

UAW Legal Services first asserts that Ziobron's appeal should be dismissed because he did not submit the entire record generated below to this court on appeal. The appellate rules require an appellant to transmit only those parts of the record that are necessary for review of the issues raised on appeal. In re the Visitation of Walker, 665 N.E.2d 586, 588 (Ind.1996). In Walker, our supreme court, recognizing that reproducing the entire record for appeal can be wasteful and expensive, expressly encouraged litigants to utilize, and reviewing courts to permit the utilization of, procedures that minimize the expense and administrative burdens for the parties and the court system. Id. at 588. The Walker court reviewed a case tried on the merits where only the proposed findings of fact and the trial court's findings, conclusions, order, and judgment were included in the record on appeal. Id. at 587-88, 589.

The record submitted by Ziobron included the pleadings, UAW Legal Service's motion to dismiss, and the various memoranda submitted to the trial court for its ruling. As will hopefully be obvious from our discussion below, our review of this case is largely, if not completely, resolved by examination of the undisputed facts alleged in the pleadings. As the record provided by Ziobron is more than sufficient for us to conduct a meaningful review, we find no error.

II. Federal Preemption

UAW Legal Services asserts that the FDCPA preempts Ziobron's malicious prosecution claim noting that the Act provides a remedy for defendants wronged in prosecutions brought under the Act in 15 U.S.C. § 1692k(a)(3) which provides:

On a finding by the Court that an action under this Section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney's fees reasonable in relation to the work expended and costs.

Under the Supremacy Clause of the United States Constitution, U.S. Const. art. VI, cl. 2, state law which conflicts with federal law is without effect. Wilson v. Pleasant, 660 N.E.2d 327, 329 (Ind.1995). The intent of Congress to preempt state law may be expressed in the statute's language or implied in the statute's structure and purpose. Id. If the preemption question is not settled by a precise and narrow application of the statute's language, we must determine whether the state law in question actually conflicts with federal law. Id. at 334. State law actually conflicts with federal law where it is impossible for a citizen to comply with both state and federal requirements or if state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Id. In Wilson, our supreme court held that a plaintiff's common law product liability claim against an automobile manufacturer for the failure to install an airbag was not preempted by federal law despite the detailed safety regulations imposed upon auto manufacturers by the Federal National Traffic and Motor Vehicle Safety Act of 1966. Id. at 339.

In enacting the FDCPA, Congress stated its findings and declared the purposes of the Act as follows:

(a) There is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors. Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy.

(b) Existing laws and procedures for redressing these injuries are inadequate to protect consumers.

(c) Means other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts.

(d) Abusive debt collection practices are carried on to a substantial extent in interstate commerce and through means and instrumentalities of such commerce. Even where abusive debt collection practices are purely intrastate in character, they nevertheless directly affect interstate commerce.

(e) It is the purpose of this subchapter to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.

15 U.S.C. § 1692. The FDCPA addresses preemption as follows:

Relation to State laws

This subchapter does not annul, alter or affect, or exempt any person subject to the provisions of this subchapter from complying with the laws of any State with respect to debt collection practices, except to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency. For purposes of this section, a State law is not inconsistent with this subchapter if the protection such law affords any consumer is greater than the protection provided by this subchapter.

15 U.S.C. § 1692n. The FDCPA has been held to preempt state law where the state has not addressed objectionable debt collection practices with legislation which is either parallel to, or more severe than, the FDCPA. Johnson v. Statewide Collections, Inc., 778 P.2d 93, 99 (Wyo.1989).

The Act's preemption clause, 15 U.S.C. § 1692n, does not purport to preempt state law malicious prosecution claims. Instead, it is specifically addressed to the "laws of any...