Felland Limited Partnership v. Digi-Tel Communication12/22/2004
This is a private action, for monetary damages, under the Telephone Consumer Protection Act, 47 U.S.C. ยง 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, ___ Md. ___, ___ A.2d ___ (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 " 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 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
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