In this case, we are asked to decide whether a banking institution's disclosure of the name and unlisted telephone number of one of its depositors, which, under the circumstances, had the effect of identifying that depositor's checking account number to another depositor, with knowledge of their respective identities, constitutes a violation of Maryland Code (1980, 1998 Replacement Volume), §§ 1-301-1-305 of the Financial Institutions Article, the depositor's contract with the banking institution and the common law. Garfield Taylor (the "petitioner"), filed an action against NationsBank, N.A.
The petitioner and Walter Scott, both employees of the Federal National Mortgage Association ("Fannie Mae"), with checking accounts at the respondent banking institution, signed up with their employer to have their paychecks deposited directly into their checking accounts. Although they both received pay advice stubs, the account number on Mr. Scott's pay advice stub, as it was subsequently discovered, was not his account number. Moreover, Mr. Scott learned that his pay had not been deposited to his account, prompting him to call the respondent. During the conversation with a service representative, he learned both that the account number on the pay advice stub was not his and that his paycheck had been deposited into that account. The customer service representative identified the account into which the funds were deposited, and so informed Mr. Scott, as one belonging to the petitioner. After a discussion of what could be done to protect Mr. Scott's money-it was a Saturday and, thus, the earliest the respondent could correct the error was Monday, the customer service representative gave Mr. Scott the petitioner's unlisted home telephone number, suggesting that he might call the petitioner and explain the situation. Mr. Scott did call the petitioner at home and, in a short conversation, conveyed his concerns to the petitioner.
Alleging that, as a "private person by nature" the ensuing unexpected conversation "caused him a great deal of mental anguish and mental pain, and a severe shock to his nervous system," the petitioner filed suit against the respondent in the Circuit Court for Baltimore City. Both parties moved for summary judgment. Following a hearing, the trial court granted the respondent's motion and denied the petitioners', concluding, "I don't believe that under the undisputed facts presented by this case that it presents viable causes of action.... The case is hereby dismissed."
As indicated, the judgment was affirmed by the intermediate appellate court.
Relying upon Pemberton v. Bethlehem Steel Corp., 66 Md.App. 133, 166, 502 A.2d 1101, 1118 (1986) and Professor Prosser's seminal article describing the tort, William L. Prosser, Privacy, 48 Cal.L.Rev. 383, 393-396 (1960), the Court of Special Appeals affirmed the trial court's grant of the respondent's motion for summary judgment with regard to the count of the complaint alleging invasion of privacy. Id. at 420-422, 738 A.2d at 896-98. Thus, aware that, for an action for invasion of privacy to be maintained, there must be public disclosure of a private matter, the court explained:
Id. at 420, 738 A.2d at 897. As to whether, in this case, a private matter had been disclosed, it reasoned:
* * * *
Id. at 420-21, 738 A.2d at 897 (internal citations omitted).
At issue in this case is the propriety of the court's grant of summary judgment in favor of the respondent. It is resolved by reference to Maryland Rule 2-501 and the cases that have construed it. This Court has made clear that "[t]he purpose of the summary judgment procedure is not to try the case or to decide the factual disputes, but to decide whether there is an issue of fact, which is sufficiently material to be tried," Jones v. Mid-Atlantic Funding Co., 362 Md. 661, 675, 766 A.2d 617, 624 (2001); Frederick Road Ltd. Partnership v. Brown & Sturm, 360 Md. 76, 93, 756 A.2d 963, 972 (2000), and, therefore, it is not a substitute for trial. Goodwich v. Sinai Hosp. of Baltimore, Inc., 343 Md. 185, 205, 680 A.2d 1067, 1077 (1996). Thus, Rule 2-501(e) provides that a trial judge may grant summary judgment "if the motion and response show that there is no genuine dispute as to any material fact and that party in whose favor judgment is entered is entitled to judgment as a matter of law." A material fact is "`a fact the resolution of which will somehow affect the outcome of the case.'" Jones v. Mid-Atlantic Funding Co., 362 Md. at 675, 766 A.2d at 624 (quoting King v. Bankerd, 303 Md. 98, 111, 492 A.2d 608, 614 (1985)). In making that determination, the evidence, and all inferences therefrom, are viewed in the light most favorable to the nonmoving party. Natural Design, Inc. v. Rouse Co., 302 Md. 47, 62, 485 A.2d 663, 671 (1984). Evidentiary matters, credibility issues, and material facts which are in dispute cannot properly be disposed of by summary judgment. See Pittman v. Atlantic Realty Co., 359 Md. 513, 536, 754 A.2d 1030, 1042 (2000) (recognizing that "Maryland law ... has not viewed the function of summary judgment to be determining whether an issue is genuine based on credibility.").
An appellate court's review of the grant of summary judgment involves the determination whether a dispute of material fact exists, Gross v. Sussex, Inc., 332 Md. 247, 255, 630 A.2d 1156, 1160 (1993); Beatty v. Trailmaster Products, 330 Md. 726, 737, 625 A.2d 1005, 1011 (1993), and "whether the trial court was legally correct." Heat & Power Corporation v. Air Products & Chemicals, Inc., 320 Md. 584, 591, 578 A.2d 1202, 1206 (1990) (citations omitted). That the parties file cross-motions for summary judgment is not dispositive of the absence of a genuine dispute of material fact. In that event, as indeed is the case whenever a motion for summary judgment is filed, the court must assess each party's motion on its own merits, drawing all reasonable inferences against the moving party. Natural Design, 302 Md. at 62, 485 A.2d at 671.
Although Breach of Privacy was one of the counts in the Complaint that he filed against the respondent, see Count II, and one of the issues addressed by the Court of Special Appeals in affirming the trial court's grant of summary judgment, the petitioner does not argue its applicability in this Court, thus refraining from challenging the intermediate appellate court's ruling in that regard. Instead, he confines his challenge to the other two issues the Court of Special Appeals decided—whether by making the disclosures at issue, the respondent breached its contract with the
To prevail in an action for breach of contract, a plaintiff must prove that the defendant owed the plaintiff a contractual obligation and that the defendant breached that obligation. See Continental Masonry Co., Inc. v. Verdel Const. Co., Inc., 279 Md. 476, 480, 369 A.2d 566, 569 (1977). It is not necessary that the plaintiff prove damages resulting from the breach, for it is well settled that where a breach of contract occurs, one may recover nominal damages even though he has failed to prove actual damages. Hooton v. Kenneth B. Mumaw Plumbing & Heating Co., Inc., 271 Md. 565, 572-73, 318 A.2d 514, 518 (1974); Asibem Assoc., Ltd. v. Rill, 264 Md. 272, 276, 286 A.2d 160, 162 (1972); Rotwein v. Bogart, 227 Md. 434, 438, 177 A.2d 258, 260 (1962); Gilbert Const. Co. v. Gross, 212 Md. 402, 412, 129 A.2d 518, 523 (1957); Envelope Co. v. Balto. Post Co., 163 Md. 596, 606, 163 A. 688, 692 (1933); see Mallis v. Faraclas, 235 Md. 109, 116, 200 A.2d 676, 680 (1964).
The breach of contract count is premised on the depositor agreements that the petitioner entered into with the respondent, and its predecessor, prohibiting the disclosure of the information that the respondent disclosed or, stated differently, providing that the information that the petitioner gave to the bank would be kept private. In effect when the disclosures at issue in this case were made, the respondent's deposit agreement, which the petitioner signed, provided in Paragraph 15:
This section of the depositor agreement also is pertinent to the common law confidentiality issue.
The respondent argued in the Circuit Court that the petitioner, by signing the deposit agreement, specifically agreed to the disclosure of his name and telephone number. In support, it pointed to the petitioner's agreement that it be permitted to furnish its depositor lists to others and to the petitioner's acknowledgment that the respondent would not be held liable for releasing information to a person in possession of "identifying characteristics" of the petitioner. The trial court apparently accepted the arguments. Although, by focusing on the disclosure of the unlisted telephone number and not considering the fact that the petitioner's name was revealed or the context in which it was disclosed, the Court of Special Appeals concluded that the deposit agreement was not controlling. On the other hand, noting this time that the disclosure included the petitioner's name, the intermediate appellate court, concurring with the respondent, determined that the deposit agreement protected the respondent from liability for the disclosure because the petitioner's account number had been supplied to Mr. Scott by Fannie Mae.
This case is not about the disclosure of just the name and telephone number of a depositor; rather, it is about the disclosure of that depositor's account information. To be sure, the deposit agreement permitted the respondent to disclose the petitioner's account information under certain circumstances. None of those circumstances was, or is, present in this case. More than the petitioner's name and telephone number, the respondent disclosed to Mr. Scott the petitioner's account number. Fannie Mae may have given Mr. Scott the numbers and Mr. Scott may have known their significance, i.e., that they represented an account number, but Mr. Scott was not told by Fannie Mae whose account number it was and, indeed, he had no idea. Without a name to go with the number he was given, his mere possession of the number was useless. Thus, it was the disclosure of the petitioner's name, by the respondent's customer service representative, in the context of the inquiry by Mr. Scott, which made the information supplied by Fannie Mae meaningful. The effect of putting a name to the numbers was to reveal that the account number was the petitioner's and the deposit to that account.
The respondent submits that the mere possession of the account number, obtained from a source other than the respondent, even though it is without knowledge as to whose account number it is, is enough to insulate it from the consequences of its intentional act of disclosure. That argument is belied by the agreement
The latter part of the agreement recognizes that unintentional—accidental—disclosures are bound to occur, "that [the bank's] reasonable security measures cannot absolutely ensure against `unauthorized' inquiries." Rather than permit those disclosures, the agreement excuses the respondent from liability for them under certain circumstances, one of which being when a third party, without the depositor's consent or knowledge, learns the depositor's account number.
Maryland follows the objective law of contract interpretation and construction. Adloo v. H.T. Brown Real Estate, Inc., 344 Md. 254, 266, 686 A.2d 298, 304 (1996). As explained in General Motors Acceptance Corp. v. Daniels, 303 Md. 254, 261, 492 A.2d 1306, 1310 (1985) (citations omitted), that means:
It is clear, both from the plain language of the agreement and the context, that the exemption to which the petitioner agreed covered only those disclosures that were accidental, or inadvertent, and did not include a deliberate disclosure, not in accordance with the permitted disclosures, to one whom the respondent knew was not the petitioner.
Given this interpretation of the deposit agreement, which necessarily is a rejection of the interpretation of the deposit agreement advocated by the respondent and adopted by the Court of Special Appeals, the undisputed material facts show a contractual obligation that the respondent owed the petitioner and the breach of that duty. Therefore, it follows that summary judgment was improperly entered on this point.
Suburban Trust Co. v. Waller, 44 Md.App. 335, 408 A.2d 758 (1979), which the petitioner maintains controls the outcome of this case, is the foundation for the petitioner's allegations that the respondent breached his right to confidentiality. In that case, the intermediate appellate court considered the "novel question of the existence and scope of a bank's duty of confidentiality concerning the affairs of its depositors." Id. at 336, 408 A.2d at 760. There, Waller deposited $800, consisting of fifty and one hundred dollar bills, sequentially numbered, in his bank account at Suburban Trust Company. Believing the money to be stolen, an assistant security
Regarding the existence and scope of a bank's duty of confidentiality, the court, id. at 344, 408 A.2d at 764, concluded:
We agree with Waller. The respondent disclosed to a third party, whom it knew was not the petitioner, the petitioner's name and telephone number and it did so under circumstances that identified, for the third party, the account number in his possession as that belonging to the petitioner and the fact that a deposit recently had been made to that account. Unless the respondent was permitted, expressly or impliedly by the deposit agreement, to make the disclosure, then the holding in Waller applies equally to the case sub judice. We have already rejected the rationale advocated by the respondent and which carried the day in the intermediate appellate court—"that Walter Scott, through no fault of NationsBank, possessed [the petitioner's] account number not from NationsBank, but from reading his payment advice stub."
The petitioner challenges, finally, the grant of summary judgment with respect to the allegation that the respondent acted in violation of § 1-302 when it disclosed to Mr. Scott his name, telephone number, account number and that Mr. Scott's pay check had been deposited in the petitioner's account. Given the latter disclosure, he submits that "the bank released account activity to Mr. Scott," which "is clearly account information under any possible reasonable definition of the term, and is certainly within the scope of § 1-301 et seq. of the Financial Institutions Code, as well as the definition provided in Waller."
Determining whether the respondent violated § 1-302 involves statutory construction. The canons of statutory construction are well settled. See, e.g., Mid-Atlantic Power Supply Ass'n v. Public Service Com'n of Maryland, 361 Md. 196, 203, 760 A.2d 1087, 1091 (2000); Mayor & City Council of Baltimore v. Chase, 360 Md. 121, 128, 756 A.2d 987, 991 (2000); Chesapeake and Potomac Tel. Co. of Md. v. Dir. of Fin. for Mayor and City Council of Baltimore, 343 Md. 567, 578, 683 A.2d 512, 517-18 (1996). Those pertinent to the case sub judice are, in pursuing the real goal of statutory interpretation, the discernment of the intent of the Legislature, we begin our inquiry with the words of the statute and, when they are clear and unambiguous, we normally end it there, as well. We neither add nor delete words to a clear and unambiguous statute to give it a meaning not reflected by the words the Legislature used or engage in forced or subtle interpretation in an attempt to extend or limit the statute's meaning. Moreover, whenever possible, the statute should be read so that no word, clause, sentence
Section 1-302 provides, as relevant:
"(i) The customer has authorized the disclosure to that person;
Section 1-301(b)(1) defines "financial institution" to include a "national banking association," which the respondent concedes it is and, thus, that it is subject to the provisions of the Act. "Financial records" are defined by § 1-301(c)(1). It provides:
By its plain terms, what is contemplated to be prohibited, with the possible exception of item (v), pertaining to loan accounts and applications for loans, is the disclosure of certain records, rather than information about those records. Section 1-301(c) is specific in its reference to "the original or any copy or record of" certain documents,
There is in this case no contention that any records were given to Mr. Scott-no originals or copies of any documents, statements, ledger cards, checks, clear drafts, money orders, items of any kind, or information is alleged. Rather, the only allegations, and the undisputed facts, are that the respondent orally disclosed information that undoubtedly is account information. That does not, however, render the information financial records and, therefore, violative of the statute. We hold that the statute was not violated.
The petitioner relies, in advocating the opposite result, on Waller,
What the court said does not support the conclusion that the petitioner draws. In explaining its conclusion that the legislative action was consistent with its decision, the Court of Special Appeals stated:
'(a) The General Assembly of Maryland finds and declares that:
44 Md.App. at 344-45, 408 A.2d at 764-65 (footnote omitted). Thus, the concern that the statute addressed was one which lends credence to the interpretation of the statute that we reach. Moreover, we agree with the respondent that "Waller does not
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED, IN PART. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AND REMAND THE CASE TO THAT COURT FOR FURTHER PROCEEDINGS, CONSISTENT WITH THIS OPINION. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE RESPONDENT.