Sterling Mirror of Maryland, Inc. v. Gordon

WAGNER, Associate Judge:

Appellant, Sterling Mirror of Maryland, Inc. (Sterling), appeals from a judgment awarding appellee, Daisy Gordon (appel-lee), $1,000 in damages on her counterclaim which alleged that Sterling harassed her by telephone while attempting to collect the balance due on Sterling’s contract with her husband, John Gordon, for the installation of mirrors at the Gordons’ home. Appellant argues that the trial court erred in finding it liable because the facts do not support a claim under the Federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692a-1692k (1982) (Debt Collection Act), the D.C. Consumer Credit Protection Act, D.C.Code §§ 28-3801 to -3819 (1991) (Consumer Act), nor any common law cause of action. We agree and reverse.

I.

Appellant filed a complaint for damages for breach of contract against appellee and her husband, John Gordon, in connection with the installation of mirrors in the Gor-dons’ home. Only Mr. Gordon signed the two contracts which precipitated the dispute, although the second contract reflected the sale of the mirrors to John and Daisy Gordon. The first contract, dated December 6, 1988, was for $4,207.50, and the second, dated January 20,1989, was for $1,325. Appellee’s telephone number was listed as the contact person on the first contract. The trial court found, and it is not challenged on appeal, that the second contract replaced the first.

A dispute arose between the parties about a mirror chipped during installation, and Mr. Gordon refused to pay the balance *66due under the contract. In an attempt to collect the balance, Sterling’s employee made numerous calls to appellee’s place of employment. Sterling then filed suit for breach of contract against appellee and Mr. Gordon. Mrs. Gordon counterclaimed for damages for harassment based on telephone efforts by Sterling to collect the outstanding balance. The trial court entered judgment for Sterling and against John Gordon in the amount of $635 for breach of contract and dismissed Sterling’s complaint against Daisy Gordon. The court awarded Daisy Gordon $1,000 in damages on her counterclaim and found against Mr. Gordon on his counterclaim. Sterling appeals from the judgment in favor of Mrs. Gordon on the counterclaim.

II.

Appellant argues that the trial court erred in imposing liability and awarding damages without statutory authority or a basis in common law. Specifically, Sterling contends that neither the Debt Collection Act nor the Consumer Act applies in this case, and there is no other basis for recovery. We agree.

The Debt Collection Act prohibits certain unfair debt collection practices by persons engaged in the debt collection industry. Crossley v. Lieberman, 868 F.2d 566, 570 (3rd Cir.1989).1 It covers the activities of collection agents working on behalf of third parties, rather than those of creditors attempting to collect debts owed to them directly by debtors, as in the instant case. Id.; Kizer v. Finance America Credit Corp., 454 F.Supp. 937, 939 (N.D.Miss.1978) (“debt collectors” covered by Act are those who regularly collect debts for others and not creditors of consumers even though debt created between consumer and third person and subsequently assigned to creditor); Mendez v. Apple Bank For Sav., 143 Misc.2d 915, 541 N.Y.S.2d 920, 923 (N.Y.City Civ.Ct.1989) (statute reflects legislature’s belief that third party debt collectors are prime source of egregious collection practices). Appellant does not fall within the categories of debt collectors covered. The plain language of the statute does not include actions of a creditor taken in an effort to collect its own debts directly from its debtors. Sterling is a creditor which falls within this exclusion.

Here, Sterling was attempting to collect a debt by telephone calls made by its employee to appellee, one of the recipients of the merchandise. An employee of a creditor seeking to recover a debt on the employer’s behalf likewise is not within the coverage of the Act. 15 U.S.C. § 1692a(6)(A). Even though appellant called the wife of the actual debtor, the Debt Collection Act does not prohibit such actions insofar as creditors seeking to recover debts due to them as opposed to debts due to third party creditors. Thus, the trial court’s decision to award $1,000 in civil damages cannot rest upon the provision of the Debt Collection Act which allows civil damages not to exceed $1,000 to an individual aggrieved by a debt collection *67violation under the Act.2

Nor can support for the trial court’s decision be found in the Consumer Act. That Act is limited by its terms to “actions to enforce rights arising from a consumer credit sale or a direct installment loan.” D.C.Code § 28-3801 (1991). Neither a consumer credit sale3 nor a direct installment loan4 was involved. The basis of appellant’s claim was a contract under the terms of which the purchaser paid a deposit and agreed to pay the balance upon delivery and installation of the merchandise.

Absent a statutory basis for the trial court’s decision awarding damages to appellee, we review to determine whether recovery is based properly upon some common law theory of liability.5 Appellee contended at trial that she was subjected to telephone harassment by Sterling, and the trial court agreed, as reflected in its finding, and awarded damages. Appellee’s testimony reveals no actual damages. At best, appellee’s claim is for mental disturbance caused by Sterling’s calls. The only possible theory of recovery for mental distress associated with the calls, but one which cannot be made on the facts presented, is one for intentional infliction of emotional distress.6 Liability for such an action is predicated upon conduct so outrageous and extreme as to exceed the bounds of decency and to be regarded as atrocious and intolerable in a civilized society. Bown v. Hamilton, 601 A.2d 1074, 1079 (D.C.1992); Waldon v. Covington, 415 A.2d 1070, 1076 (D.C.1980). Liability will not be imposed for mere indignities or annoyances for this cause of action. Id. A prerequisite to recovery is an intent on the part of the alleged tortfeasor to cause a disturbance in another person’s emotional tranquility so acute that harmful physical consequences might result. Id. at 1077. The requisite intent may be inferred from the outrageous character of the offensive actions or circumstances which impart to a reasonable person the likelihood that emotional or physical harm will result. See id. The facts of this case do not support such a claim.

Appellee testified that she received telephone calls from someone at Sterling who said that she owed them money and *68that they had tried to reach her husband. Appellee also testified that her supervisor informed her that Sterling’s representatives called and that she suspected she was moved to another work station because of the calls. However, appellee proved no actual damages, and she did not claim that she personally suffered emotional distress as a result of Sterling’s actions. Neither Sterling’s conduct as described by appellee in her testimony at trial nor its consequences to her as disclosed by the evidence rises to the level required to support a claim for intentional infliction of emotional distress.

We disagree with our dissenting colleague that the record is inadequate for review. On the contrary, appellant designated as the record on appeal, inter alia, a transcript of appellee’s testimony, all trial exhibits, and a transcript of the trial court’s findings of facts and conclusions of law.7 Our rules and ease law do not require an appellant to provide the entire trial transcript nor all pleadings. Rather, “[t]he normal practice is to obtain a verbatim transcript of the pertinent trial pro-ceedings_” Cobb v. Standard Drug Co., Inc., 453 A.2d 110, 111 (D.C.1982). D.C.App.R. 10(c)-(f). The rules contain explicit provisions for allowing an appellant to designate only portions of the transcript. See D.C.App.R. 10(c). Here, the record reflects that appellant designated and requested all of appellee’s testimony and we have no reason to believe that all of the testimony is not before us.8

Our dissenting colleague suggests incorrectly that we consider it to be appellee’s burden to provide an adequate record. On the contrary, we recognize that it is appellant’s burden to provide this court “with a record sufficient to show affirmatively that error occurred.” Cobb, 453 A.2d at 111. However, we simply conclude that appellant met that burden. Here, appellant designated a record sufficient to show that appellee failed to prove a cognizable claim entitling her to recover damages based on appellant’s alleged harassing telephone calls. Id. at 111. Appellee’s testimony reveals that she was claiming damages for harassment.9 The trial court’s findings and conclusions also show that it ruled for appellee on the counterclaim based on appellant’s “unjustifiable harassment” by telephone calls associated with its collection efforts.10 Therefore, we have considered *69whether there is any statutory support or common law theory of recovery based thereon.

While it is primarily appellant’s burden to provide an adequate record, our appellate rules explicitly impose upon ap-pellees the duty of designating additional portions of the transcript which they deem to be necessary. See D.C.App.R. 10(c)(4) and (5).11 Our case law recognizes an ap-pellee’s duty to assure that information helpful to his or her cause is not omitted. If portions of the record helpful to appellee are missing, it is incumbent upon appellee to provide it or at least to protest that appellant has not met his obligations under D.C.App.R. 10(a)(1); Parker v. Stein, 557 A.2d 1319, 1323 (D.C.1989); see Dulles v. Dulles, 302 A.2d 59, 60 (D.C.1973) (“an appellee also has a duty to insure an adequate record so the judgment in the latter’s favor may be upheld and may not abdicate that responsibility”). In this case, appellant served upon appellee the required notice of its statement of portions of the transcript which it intended to include in the record. See D.C.App.R. 10(c)(3). Ap-pellee did not file and serve on appellant a designation of additional portions to be included as required by the rule. See D.C.App.R. 10(c)(4). Where an appellee fails to furnish other portions of the record which might be helpful to him or her, we decide the case only on the record before us. Parker, 557 A.2d at 1323. The record before the court supports the decision reached by the court here.

Nor can we agree with our dissenting colleague that we cannot determine from the record available whether the trial court’s decision is supportable under a statute or any common law theory without a copy of appellee’s counterclaim or other pleadings. We are not reviewing here a motion to dismiss or for summary judgment where an examination of the pleadings is essential. Rather, we have before us the trial testimony of the complainant and exhibits admitted into evidence from which it can be determined readily whether the elements of any cognizable cause of action have been made out or whether any damages recoverable by statute or under common law theories have been proven. Appellee must bear the consequences of a failure to designate any other portions of the transcript. See id.

For the foregoing reasons, we conclude that the trial court erred in granting judgment for appellee, Daisy Gordon, on her counterclaim. Accordingly, the judgment for appellee hereby is reversed, and the case is remanded for the entry of judgment for appellant, Sterling Mirror of Maryland, Inc., on appellee’s counterclaim.

Reversed.

. A “debt collector" is defined in the Act, in pertinent part, as:

any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (G) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts_ The term does not include—
(A) any officer or employee of a creditor while in the name of the creditor, collecting debts for such creditor.
******
(G) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor.

15 U.S.C. § 1692a(6)(A), (G).

. The trial court did not state the basis for its decision. Where a debt collector fails to comply with the provisions of the Debt Collection Act, civil damages may be awarded not exceeding $1,000 for an aggrieved individual. 15 U.S.C. § 1692k(a)(2)(A).

. The term "consumer credit sale” is defined in the statute as:

a sale of goods or services in which—
(A) A credit is granted by a person who regularly engages as a seller in credit transactions of the same kind;
(B) the buyer is a natural person;
(C) the goods or services are purchased primarily for a personal, family, household, or agricultural purpose;
(D) either the debt is payable in installments or a finance charge is made; and
(E) the amount financed does not exceed $25,000.

D.C.Code §§ 28-3802(2)(A)-(E). The term also covers certain bailment and lease contracts not pertinent here. See id.

. “ ‘[D]irect installment loan' means a direct installment loan as the term is used in section 28-3308 ... ”, with certain exclusions irrelevant to our review. D.C.Code § 28-3802(3). Installment loans covered by D.C.Code § —28-3308 include, with certain exceptions not pertinent here, those "to be repaid in equal or substantially equal monthly or other periodic installments, including a loan obtained by using a check, credit card, or other device to access a line of credit_” D.C.Code § 28-3308(a). The cash on delivery transaction involved here does not fall within any of these categories.

. A correct judgment of the trial court will be affirmed on appeal even if the conclusion is based upon the wrong ground. Marinopoliski v. Irish, 445 A.2d 339, 340 (D.C.1982); Max Holtzman, Inc. v. K. & T. Co., Inc., 375 A.2d 510, 513 n. 6 (D.C.1977); Bakal v. Weare, 583 A.2d 1028, 1030 (Me.1990); Small v. Colbeth, 447 A.2d 82, 82-83 (Me.1982); see also Gov’t Employees Ins. Co. v. Group Hospitalization Medical Serv. Inc., 602 A.2d 1083, 1086 (D.C.1992). For that reason, we have considered whether the trial court’s decision is affirmable on any other grounds. It is our discharge of this responsibility that our dissenting colleague inaccurately characterizes as "acting ... as [appellee’s] lawyer to identify her theories.”

. Although an action for mental distress was not recognized at common law, its existence as an independent tort now is well-established. Saunders v. Nemati, 580 A.2d 660, 661 (D.C.1990).

. Appellant also specified in the Notice of Appeal that it requested the transcript of appellee’s testimony and not just a portion of it. Appellant’s "Statement Regarding Transcript” filed with the court also indicates the appellant ordered ”[a]ppellee’s testimony” without limitation.

. The trial was brief, and the record reveals the following chronology in the proceedings:

Case called before the court for non-jury trial. Plaintiffs testimony completed. Plaintiffs oral motion for directed verdict heard and denied. Defendant’s testimony completed. Findings of Fact and conclusion of law made a part of the record.

The court reporter's transcript shows that appel-lee's only testimony was the direct and cross-examination which is a part of the record on appeal, as designated by appellant. At the conclusion of appellee’s trial testimony, the trial court excused her in a customary way: "All right, thank you ma’am. You may step down.” Although all of appellee’s testimony is a part of the record on appeal, it fails to disclose that she suffered any cognizable injury or damages as a result of the conduct of appellant’s agents or employees. Of course, if an appellee deems other portions of the transcript to be necessary, the appellee is required to take steps consistent with our rules to designate them, D.C.App.R. 10(c)(4), and if necessary, to obtain an order requiring the appellant to order it. D.C.App.R. 10(c)(5).

. Appellee testified:

The only thing I want to say the harassment that I went through really caused me a lot of hardship on my job, ... different people calling me constantly about this money ... ******
I think that is really rotten that I would have to lose time off my job and possibly be in a situation where I have to deal with [my husband] getting sicker because of this ...

Appellee's testimony is devoid of evidence supporting any other theories of liability or any other claims for damages.

. The trial court found in pertinent part as follows:

And as to the claim, counterclaim of Mrs. Gordon, I find that there again on that claim, her testimony is unrebutted and unaddressed by the defendant — by the plaintiff, not the defendant, and that there were a large number of calls to her job with respect to a contract that she didn’t sign and had not partici*69pated in in any way. It — the making of some calls under those circumstances, as the plaintiff has testified that that was a need to have a daytime phone number at work or that there was the customary practice in getting these phone numbers, that makes sense. But as to a non-party to the transaction, the real collection measures would not appropriately go to that person, and I find that — that the line between reasonable notification and even— and even reasonable collection efforts was made, and unreasonable ones or unjustifiable harassment in proceeding against a non-party was crossed in these circumstances, and I find for the counter-plaintiff in the amount of $1,000.

. D.C.App.R. 10(c)(4) and (5) provides respectively, in pertinent part, as follows:

(4) Designation by appellee of additional transcript. If the appellee deems a transcript of other portions of the proceedings to be necessary, the appellee shall file and serve on the appellant within five days after the service of the statement required by paragraph (3) a designation of additional portions to be included.
(5) Duty of appellee if appellant refuses to order additional transcript. If the appellant shall refuse to order a transcript pursuant to paragraph (4), the appellant shall so notify the appellee within five days after service of the appellee’s designation and shall file a copy of the notice with the clerk of the court and with the Clerk of the Superior Court. The appellee within five days thereafter shall either order the designated portions, in which event a statement shall be filed with respect to the ordering of the transcript similar to the aforesaid statement required of the appellant, or shall apply to the Superior Court for an order requiring the appellant to order the transcript.