Hill v. Cross Country Settlement, LLC

HARRELL, J. The only thing that is crystal clear about this case is that the grant of summary judgment, on this record, was inappropriate. Although we cannot state conclusively that no conceivable set of facts that may be developed on remand, based on the analysis here, could support disposition of this dispute by summary judgment, we suggest that it is quite likely that this litigation presents triable issues. I. Mary Sasso acquired the residential property at 533 S. Chester Street in Baltimore City (the “Property”) on 28 March 1991. Approximately six months later, she conveyed the Property to her daughter, Kathleen Hill, reserving for herself, however, a life estate with the power to encumber the Property.

In 1999, Sasso obtained a home equity loan from Provident Bank (“Provident”) using the Property as security for the loan. Provident recorded among the land records of Baltimore City on 22 April 1999 the Deed of Trust associated with that loan. Sasso refinanced the loan with Provident, and a new Deed of Trust was executed, on 25 October 2002. Provident issued a certificate of satisfaction for the 1999 loan and properly recorded the new Deed of Trust.

Sasso died on 18 May 2003. Provident continued to receive from Hill regular payments on the 2002 loan until a last payment on 25 June 2004. In June 2004, Adedayo Mseka (the “Buyer”) agreed with Hill to purchase the Property for $175,000. Cross Country Settlements, LLC (“Cross Country”), was engaged by the Buyer to conduct the closing.

During its title search, Cross Country discovered the outstanding 2002 Deed of Trust in favor of Provident. Cross Country contacted Provident to obtain payoff information. At ²⁹⁰ this point in time, the only relevant information Cross Country had was the name of the borrower (Sasso) and other self-explanatory information revealed by the four corners of the recorded Deed of Trust. The record does not contain written documentation of the initial communications between Provident and Cross Country.

The communications were characterized, however, in an affidavit of Cross Country’s President, Rebecca L. Raras, submitted in support of Cross Country’s motion for summary judgment, as “difficult.” In essence, Cross Country was unable to obtain payoff information from Provident. At some point after Cross Country contacted Provident initially, with no success, Cross Country asked for further information from Hill about the 2002 Deed of Trust loan. Hill gave Cross Country what she thought was the correct account number at Provident, number 96021899. This account number, as it turns out, was for the original 1999 loan on the Property, not the 2002 loan.

Hill also supplied to Cross Country Sasso’s death certificate, which contained such information as Sasso’s Social Security Number. 1 Cross Country, using the account number provided by Hill, contacted Provident again in an effort to obtain payoff information for the 2002 loan. Provident responded on 6 July 2004 with a letter stating “the above referenced loan was paid in full on October 30, 2002. Deed and Certificate of Satisfaction sent to customer on January 24, 2003.” Cross Country nonetheless deemed it odd that a loan would be paid in full only five days after it had been executed and recorded. Cross Country renewed its request to Provident for payoff information for the 2002 loan.

Provident responded by faxing a copy ²⁹¹ of the 6 July 2004 letter to Cross Country, with a cover sheet that said, “[tjhis was faxed to you on 7-6-04. PS Loan has been pd in full.” There is nothing in the record to indicate that Cross Country solicited a confirmatory release or certificate of satisfaction from Provident regarding the 2002 loan. The Hill-Mseka closing on the Property occurred on 15 July 2004. At settlement, Raras claimed, in her summary judgment affidavit, that Hill inquired about a Provident account being paid off.

Raras showed Hill the 6 July 2004 payoff letter from Provident and inquired as to whether there were outstanding mortgages on the Property. Hill responded that the Provident account she had in mind when earlier she supplied the number 96021899 was a credit card account in her mother’s name. Raras also claims that Hill informed her that the payoff letter from Provident was accurate. The form “Owner’s Affidavit” signed by Hill at closing states, “THAT no agreement or contract for conveyance, or deed, conveyance, written lease, or writing whatsoever, is in existence, adversely affecting the title to said premises, except that in connection with which this Affidavit is given.” 2 The settlement proceeded, with Hill receiving the proceeds of the sale of the Property without deduction for any amount due on the 2002 Provident loan.

Cross Country, as agent for Stewart Title Guaranty Company (“Stewart”), issued a title insurance policy to the Buyer. 3 On 16 September 2004, two months after the closing and the last payment on the 2002 loan, Provident faxed Cross Country a pay off sheet for the outstanding loan, account number 96038807. The amount of the payoff was $70,261.26. On 21 September 2004, Cross Country sent a letter to Hill demand ²⁹² ing that Hill “forward to Cross Country Settlements, LLC a certified check [for $70,261.26] made payable to Provident Bank____” Hill did not respond to the demand letter. On 22 December 2004, Provident informed the Buyer that the Property would be sold at foreclosure in early 2005.

Provident initiated foreclosure proceedings in the Circuit Court for Baltimore City. The Buyer made a claim against her title insurer, Stewart. Stewart paid the $70,261.26 to Provident, without apparent protest or mounting a defense to the foreclosure on behalf of the Buyer, its insured. Because the title insurance policy was not made a part of the record here, there is no basis upon which to evaluate Stewart’s decision to pay.

Stewart then made demand upon its issuing agent, Cross Country, for reimbursement of the funds paid to Provident. Cross Country paid Stewart on 18 February 2005. Cross Country claims it was required to reimburse Stewart by the terms of an underwriting agreement between them, although that agreement also was not made part of the record. The sole basis in the record in support of Cross Country’s claim that it was obligated by contract to reimburse Stewart is a bare assertion to that effect in the affidavit of Raras.

Cross Country filed its first Complaint against Hill on 12 November 2004 in the Circuit Court for Baltimore County. 4 After a series of dismissals and amended complaints, the Fourth Amended Complaint (the final complaint) and Cross Country’s motion for partial summary judgment were filed on 8 March 2005, after Cross Country paid Stewart. The Fourth Amended Complaint contained five counts: intentional misrepresentation, intentional misrepresentation— concealment, negligent misrepresentation, unjust enrichment, and monies had and received. The misrepresentation counts were dismissed by the Circuit Court on Hill’s motion on 5 October 2005. 5 Upon the parties’ cross-motions for summary ²⁹³ judgment, 6 the Circuit Court granted summary judgment to Cross Country on Count IV, unjust enrichment, on 2 December 2005. 7 Hill filed a timely appeal to the Court of Special Appeals. The intermediate appellate court, in a reported opinion, affirmed the judgment of the trial court.

Hill v. Cross Country Settlements, LLC, 172 Md.App. 350 , 914 A.2d 231 (2007). We granted certiorari, on Hill’s petition, to consider whether the trial court was correct in granting summary judgment to Cross Country. Hill v. Cross Country Settlements, 398 Md. 314 , 920 A.2d 1058 (2007). 8 ²⁹⁴ II. Maryland law is well settled regarding the appellate standards to be applied in reviewing a grant of summary judgment.

Summary judgment is appropriate where “there is no genuine dispute as to any material fact” and “the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Maryland Rule 2—501(f). “In granting or denying a motion for summary judgment, a judge makes no findings of fact.” King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608, 615 (1985). The appellate court will “review the record in the light most favorable to the nonmoving party and construe any reasonable inferences that may be drawn from the facts against the moving party.” Myers v. Kayhoe, 391 Md. 188, 203 , 892 A.2d 520, 529 (2006). “In reviewing a grant of summary judgment under Md. Rule 2-501, we independently review the record to determine whether the parties properly generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law.” Wells Fargo Home Mortgage, Inc. v. Neal, 398 Md. 705, 714 , 922 A.2d 538, 543 (2007) (quoting Livesay v. Baltimore County, 384 Md. 1, 9-10 , 862 A.2d 33, 38 (2004)). As iterated above, if there is a genuine dispute as to any material fact, summary judgment is improper. Even where the underlying facts are undisputed, “if they [are] susceptible of more than one inference, the party against whom inferences [are] to be drawn ... [is] entitled to the inferences most favorable to his contentions.” Roland v. Lloyd E. Mitchell, Inc., 221 Md. 11, 14 , 155 A.2d 691, 693 (1959) (citing White v. Friel, 210 Md. 274, 285 , 123 A.2d 303, 308 (1956)).

If the facts are subject to more than one inference, those inferences should be submitted to the trier of fact. Porter v. Gen. Boiler Casing Co., 284 Md. 402, 413 , 396 A.2d 1090, 1096 (1979); Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138 , 265 A.2d 256, 258 (1970).

III

In 2000, this Court identified the elements of a claim of ²⁹⁵ unjust enrichment, 9 previously considered by the Court of Special Appeals in Everhart v. Miles, 47 Md.App. 131, 136 , 422 A.2d 28, 31 (1980). Unjust enrichment consists of three elements: 1. A benefit conferred upon the defendant by the plaintiff; 2. An appreciation or knowledge by the defendant of the benefit; and 3.

The acceptance or retention by the defendant of the benefit under such circumstances as to make it inequitable for the defendant to retain the benefit without the payment of its value. Berry & Gould, P.A. v. Berry, 360 Md. 142, 151-152 , 757 A.2d 108, 113 (2000) (quoting County Comm’rs v. J. Roland Dashiell & Sons, Inc., 358 Md. 83 , 95 n. 7, 747 A.2d 600 , 607 n. 7 (2000)). Unjust enrichment is a claim, however, that may not be reduced neatly to a golden rule. See Daniel Friedmann, Restitution of Benefits Obtained Through the Appropriation of Property or the Commission of a Wrong, 80 Colum.

L.Rev. 504, 504-05 (1980) (“[U]njust enrichment is notoriously difficult to define. It has on occasion been regarded as too indefinite and vague to be recognized as a general legal principle, with concern expressed that its adoption might undermine legal stability, confuse legal thinking, and jeopardize clear, systematic organization of the law.”). A successful unjust enrichment claim serves to “deprive the defendant of benefits that in equity and good conscience he ought not to keep, even though he may have received those benefits quite ²⁹⁶ honestly in the first instance, and even though the plaintiff may have suffered no demonstrable losses.” Dep’t of Hous. & Cmty. Dev. v. Mullen, 165 Md.App. 624, 659 , 886 A.2d 900, 921 (2005), cert. denied, 391 Md. 579 , 894 A.2d 546 (2006) (quoting Dobbs, supra, § 4.1). “A person who receives a benefit by reason of an infringement of another person’s interest, or of loss suffered by the other, owes restitution to him in the manner and amount necessary to prevent unjust enrichment.” Berry & Gould, P.A v. Berry, 360 Md. 142, 151 , 757 A.2d 108, 113 (2000) (quoting Restatement (Second) of Restitution § 1 (Tentative Draft No. 1, 1983)). “The restitution claim ... is not aimed at compensating the plaintiff, but at forcing the defendant to disgorge benefits that it would be unjust for him to keep.” Mass Transit Admin, v. Granite Const.

Co., 57 Md.App. 766, 775 , 471 A.2d 1121, 1126 (1984). “The defendant who has received money from the plaintiff by mistake, even though the mistake is an honest one, may be compelled to make restitution of the money.” Dobbs, supra, § 4.1. A defendant, however, “is not unjustly enriched, and therefore not required to make restitution where the benefit was conferred by a volunteer or intermeddler.” Dobbs, supra, § 4.9 (citing Restatement (First) of Restitution § 112 (1937)). This principle is based on the notion that “one who confers a benefit upon another without affording that other the opportunity to reject the benefit, has no equitable claim for relief against the recipient of the benefit in the absence of some special policy....” Dobbs, supra, § 4.9. “If plaintiff pays defendant’s debt under the mistaken apprehension that he was himself under a duty to do it ... there is less reason to treat him as being officious, and the courts will usually grant restitution.” John W. Wade, Restitution for Benefits Conferred Without Request, 19 Vand. L.Rev. 1183, 1201 (1996); see Boney v. Cent.

Mut. Ins. Co. of Chi, 213 N.C. 563 , 197 S.E. 122 (1938) (holding that plaintiff insurance broker is entitled to recovery from defendant insurance carrier where the plaintiff paid claim denied by carrier out of moral responsibility); but see Gallagher, Magner & Solomento, Inc. v. Aetna Cas. & Sur. Co., 214 Pa.Super. 233 , 252 A.2d 206 , 207 ²⁹⁷ (1969) (denying recovery where plaintiff insurance broker paid claim denied by insurance carrier because “where the plaintiff is not liable for the debt, he has no right to volunteer a payment”); Gaul v. McLaughlin, 207 Pa.Super. 434 , 217 A.2d 757 (1966).

An unjust enrichment claim is “equitable in nature, and the right to restitution is therefore subject to any counter-equities that the recipient of benefits may assert.” Dobbs, supra, § 11.9. Although the basis for recovery in unjust enrichment is not based on fault, misconduct or fault of one of the parties is sometimes considered in determining whether to permit recovery. Dobbs, supra, § 11.9. 10 III. The parties to the present case vigorously contest the application of the elements of unjust enrichment to the record.

Hill argues that, as a matter of law, none of the required elements, especially the second element, can be satisfied, and therefore summary judgment was inappropriate. Cross Country contends that all three elements have been satisfied, and demands affirmance of the trial court’s judgment. A. Regarding the first element, whether the plaintiff conferred a cognizable benefit on the defendant, Hill argues ²⁹⁸ that Cross Country was not capable of bestowing a benefit, as it did not pay over to Hill monies belonging to Cross Country. As a settlement agent, Hill contends, Cross Country had no financial stake in the closing transaction, other than its own fees.

Cross Country’s role in the transaction essentially was to act as an intermediary and conduit for monies belonging to others. Cross Country counters by pointing out that a representative of Cross Country at the closing handed Hill a check drawn on a Cross Country checking account. Cross Country contends that there is no doubt that Hill received a benefit from Cross Country. Both parties largely are incorrect.

Although the consummation of the real estate closing did not constitute a conveyance of a benefit to Hill by Cross Country for the purposes of analysis of an unjust enrichment claim, the events alleged to have occurred subsequent to the closing may support a conclusion that a benefit was conferred. As a matter of law, the payment of the debt of another constitutes a benefit conferred, and thus may satisfy the first element of an unjust enrichment claim. The Restatement (First) of Restitution § 76 (1937) states, “[a] person who, in whole or in part, has discharged a duty which is owed by him but which as between himself and another should have been discharged by the other, is entitled to indemnity from the other, unless the payor is barred by the wrongful nature of his conduct.” Thus, when a plaintiff pays the liability of the defendant, the defendant’s balance sheet improves as a result of such payment. See Wade, supra, at 1186 (“One is enriched not only when he receives an asset but also when someone else performs for him a duty which would be a burden to him.

The clearest case is that of one person paying another’s debt. The elimination of this obligation is clearly a benefit....”). Moreover, we have not required always that a benefit conferred in an unjust enrichment action come necessarily and directly to the defendant from the plaintiffs own resources. See Plitt v. Greenberg, 242 Md. 359, 364 , 219 A.2d 237, 241 (1966) (‘“It is immaterial how the money may have come into the defendant’s hands, and the fact that it was received from a third ²⁹⁹ person will not affect his liability, if, in equity and good conscience, he is not entitled to hold it against the true owner.’ ” (quoting Empire Oil Co. v. Lynch, 106 Ga.App. 42 , 126 S.E.2d 478, 479 (1963))); Plitt, 242 Md. at 364 , 219 A.2d at 241 (“[A] plaintiff could recover money from even an innocent transferee who was without knowledge that he possessed the plaintiffs money.”).

Cross Country, by reimbursing Stewart, paid an asserted debt which it contends is more properly chargeable to Hill. If Hill were found to be liable to Stewart, and as a result of the payment by Cross Country that liability was erased, Hill may be said to have received a benefit from satisfaction of that claim. By contrast, if Hill should be determined not to be liable to Provident or Stewart in an action brought directly against Hill, Hill received no benefit as Cross Country paid a debt that Hill did not owe. B. Hill contends that the second element of an unjust enrichment claim is not present because, viewing the well-pleaded facts in the light most favorable to her as the nonmoving party, she was unaware of the 2002 mortgage at the time she received the overpayment at closing.

This argument fails to for two reasons. First, as discussed above, the alleged benefit being litigated in this case is Cross Country’s reimbursement to Stewart. The essence of the requirement that the defendant have knowledge or appreciation of the benefit is that the defendant have an opportunity to decline the benefit. “It is quite appropriate to say ... that the opportunity may exist later; and that the defendant has a true opportunity to decline by insisting that he pay the debt himself. This would produce a ... result ... which should be encouraged.” Wade, supra, at 1213.

Hill apparently had knowledge and appreciation of that payment, as she received a written demand from Cross Country that she pay the balance owed on the mortgage to Provident. In fact, this litigation was initiated prior to the payment ³⁰⁰ from Cross Country to Stewart. Hill had a fair opportunity to decline the alleged benefit ultimately conferred by Cross Country by making the payment herself. 11 Second, Hill misunderstands the purpose behind the requirement that the defendant against whom a successful unjust enrichment claim is lodged have knowledge or appreciation of the benefit conferred. When the benefit conferred is money, there is no requirement that a defendant necessarily have knowledge or appreciation of the benefit precisely at the time the benefit is conferred. 12 Some courts have held that when a defendant declines a plaintiffs request to return a conferred benefit, the defendant has been afforded a fair opportunity to reject the benefit, and thus, recovery may be permitted.

See Consol. Fisheries Co. v. Consol. Solubles Co., 112 A.2d 30, 35 (Del.1955) (“As a general rule, also, even a volunteer who pays the obligation of another is entitled to reimbursement from the obligor when he takes advantage of the act of the volunteer.”); Beacon Homes, Inc. v. Holt, 266 N.C. 467 , 146 S.E.2d 434 (N.C.1966) (holding that when plaintiff erroneously built a house on defendant’s land, and defen ³⁰¹ dant refused to permit plaintiff to remove the structure, plaintiff was entitled to recovery because defendant had a choice of retaining the benefit). In other words, restitutionary recovery may be permitted under a theory of unjust enrichment when the recipient of the benefit “in fact retains a choice of keeping or returning it.... ” Dobbs, supra, § 4.9.

If a plaintiff is mistaken as to the duties or rights that he or she owes another and “because of his mistake confers a benefit upon another, that [plaintiff] is often entitled to recover the value of that benefit, in spite of the fact that the recipient was given no opportunity to decline it.” Dobbs, supra, § 4.9. C. The final element of an unjust enrichment claim is a fact-specific balancing of the equities. “The task is to determine whether the enrichment is unjust.” Wade, supra, at 1185. In making fact-specific determinations, a reviewing court considers the facts in the record, and the reasonable inferences drawn from those facts, in a light most favorable to the non-moving party, Hill in this case. Harford County v. Saks, 399 Md. 73, 82 , 923 A.2d 1, 6 , (2007).

Hill presents two related arguments. First, Hill argues that, because either Cross Country or Stewart could have avoided enforcement of any asserted liability owed to Provident by asserting the doctrine of equitable estoppel, Cross Country was a volunteer and therefore prohibited from recovery against her. Second, Hill argues that an unjust enrichment claim should not be allowed to be maintained in lieu of a subrogation claim which, if anything, was the more proper form of remedy, if any remedy existed. Under subrogation, Hill contends, she would be able to assert the defense of equitable estoppel against Cross Country and defeat recovery.

We will address each of these arguments in turn. 1. It is undisputed that once properly yoked with the label of “mere volunteer” or “officious payor,” a plaintiff is prohibited from recovering under theories of unjust enrich ³⁰² ment or subrogation. It less clear, however, precisely when a plaintiffs payment to a third party satisfying the liability of the defendant renders a plaintiff a volunteer and casts him or her “into legal outer darkness.” Dobbs, supra, § 4.3. Palmer notes that “[w]hen one person, without request, knowingly pays the debt of another ... restitution will normally be denied.” George E. Palmer, The Law op Restitution § 10.2 (1978).

In ancient Roman law, volunteering to interfere and manage the business of another was encouraged and rewarded. Edward W. Hope, Officiousness, 15 Cornell L.Q. 25, 25 (1929). In the course of the development of the English common law, however, a prohibition on the recovery of volunteers became accepted. “With considerable truth, it has been said whenever the courts for some reason see fit to refuse subrogation, they denote the unsuccessful plaintiff a ‘volunteer.’ It maybe pointed out also that even where subrogation is allowed, the courts almost invariably pay lip service to the rule.” Note, Subrogation and the Volunteer Rule, 24 Va. L.Rev. 771, 772 (1938).

Although older surveyed cases strictly and harshly applied the volunteer rule, more recent cases map a trend to a “liberal attitude toward those who pay the debt of another, taking the form of a pronounced reluctance to designate the claimant a ‘volunteer.’ ” Note, supra, at 774; See Daniel Friedmann, Unjust Enrichment, Pursuance of Self-Interest, and the Limits of Free Riding, 36 Loy. L.A.L.Rev. 831, 854 (2003) (“The modern approach in American law is more liberal and tends to relax the traditional rule and allow the payor, who has an interest in discharging the debt or a moral duty to do so, to recover from the real debtors.”) The drafters of the Restatement (First) of Restitution avoided the difficulty associated with defining the circumstances by which one becomes a “volunteer” prohibited from recovery in unjust enrichment largely by ignoring the term altogether. See Restatement (First) of Restitution § 162 cmt. b (1937) (“Where a person discharges an obligation owed by another, or a lien upon the property of another, and does so officiously, he is not entitled to reimbursement from the other ³⁰³ ... and is not entitled to be subrogated to the position of the obligee or lien-holder____ On the other hand, where the plaintiff is not officious, and he uses his property or his property is used in discharging the obligation of another or a lien upon another’s property, he is entitled to reimbursement and is entitled to the remedy of subrogation to obtain reimbursement.”). The Restatement’s definition of “officiousness” is no more helpful to the present inquiry than its approach to “volunteer.” See Restatement (First) of Restitution § 2 (1937) cmt. a (“Officiousness means interference in the affairs of others not justified by the circumstances under which the interference takes place.”). 13 The legal principles regarding subrogation contain a parallel prohibition against volunteers from recovering.

Although it is difficult to lay down a general rule applicable to all cases in which subrogation is sought, the essential elements necessary for legal subrogation (as distinguished from conventional and statutory subrogation) are: (1) the existence of a debt or obligation for which a party, other than the subrogee, is primarily liable, which (2) the subrogee, who is neither a volunteer nor an intermeddler, pays or discharges in order to protect his own rights and interests, (emphasis added) George L. Schnader, Jr., Inc. v. Cole Bldg. Co., 236 Md. 17, 23 , 202 A.2d 326, 330 (1964) (citing James Morfit Mullen, The Equitable Doctrine of Subrogation, 3 Md. L.Rev. 201, 203 (1939)). The foregoing descriptions of how subrogation and unjust enrichment should operate are helpful, but lacking in a significant respect, as applied to the present case, because of the vaguely defined terms “volunteer” and “intermeddler.” The issues become more complex in cases such as this, where it is asserted that a “plaintiff settled and paid a ... claim asserted by a third party on which the defendant was solely liable.” ³⁰⁴ Palmer, supra, § 22.2. 14 In McNiece v. Eliason, 78 Md. 168 , 27 A. 940 (1894), an unsecured creditor of an estate sought to pay an overdue mortgage on property owned by the estate and thereby become subrogated to the rights of a mortgagor. The Court held that the general creditor had no such right and would be a mere volunteer.

In Robertson v. Mowell, 66 Md. 530 , 8 A. 273 (1887), we enforced a plaintiffs subrogation rights when she paid her brother’s mortgage with the understanding that she was to be subrogated. In holding that she was not a volunteer, we noted: It is true she was under no legal obligation to make this payment, but, under the circumstances stated, she cannot be regarded as a mere stranger or volunteer, officiously intermeddling with a matter which in no way concerned her. There are no intervening incumbrances or rights of creditors to be interfered with, nor any superior or equal equities to be displaced. Robertson, 66 Md. at 538 , 8 A. at 277 .

In Springham v. Kordek, 55 Md.App. 449 , 462 A.2d 567 (1983), children made payments on their mother’s mortgage after her spouse abandoned her. The Court of Special Appeals held that, although the children acted without legal compulsion, they were not prohibited from recovery on the bases that: (1) they had a moral obligation to assist their mother; (2) they were protecting their own property interest; and, (3) they acted at the request of their mother. Absolute legal compulsion is not required in order for a plaintiff to avoid the fatal designation of “officious.” See Restatement (First) of Restitution (1937) § 79. (“A person ... who was claimed by the creditor to be an obligor, upon an ³⁰⁵ obligation which, as between such person and another, the other had a primary duty to discharge, and who has paid the creditor in discharge of the obligation at a time when it existed against the other, is entitled to indemnity from the other, although originally or at the time of payment, the payor was under no duty to make the payment, unless his payment was officious.”) (emphasis added); Palmer, supra, § 22.1 (“If one person mistakenly pays the debt of another, usually in the mistaken belief that it is his own debt, the policy against intervention of in the affairs of another loses its force.... ”).

The issue turns on whether the plaintiff made a “justified intervention in the defendant’s affairs.” Palmer, supra, § 22.2. The factual novelty of the present case requires us to adopt a rule to guide future unjust enrichment and subrogation actions. We agree with the Restatement (First) of Restitution (1937) § 79, that a plaintiff may recover for a payment or payments to a third party as long as the plaintiff was not officious in making such payment or payments. Although we shall not supply an exhaustive list of situations where a plaintiff would not be deemed officious, generally a plaintiff is not officious when he or she acts under a legal compulsion or duty, acts under a legally cognizable moral duty, acts to protect his or her own property interests, acts at the request of the defendant, or acts pursuant to a reasonable or justifiable mistake as to any of the aforementioned categories. 15 ³⁰⁶ Applying the considered rules regarding volunteers to the present case, Hill would be allowed to defend on the ground that Cross Country was an officious payor, if Cross Country had no legal or moral obligation to pay Stewart or that any mistake by Cross Country regarding its legal obligations was unreasonable and unjustified.

Cross Country implied in the Circuit Court that its payment to Stewart was not voluntary by asserting baldly that the payment was required pursuant to an underwriting agreement between them. Maryland Rule 2-501 (a) requires that a motion for summary judgment be supported by an affidavit if it is “based upon facts not in the record.” In its motion for partial summary judgment, Cross Country relied upon Raras’s attached affidavit, which stated, “Stewart made demand upon Cross Country, in accordance with the terms of our underwriting agreement, for reimbursement of the funds it paid to Provident. On February 18, 2005, Cross Country paid Stewart the $76,402.94 incurred by it to avert the foreclosure.” Raras’s affidavit, by mere allusion to a document and without attaching that document or reciting its relevant terms, sought to imply a legal conclusion. In essence, Cross Country argues for the legal proposition that it was obligated contractually to pay Stewart, and thus, suffered financial loss.

Maryland Rule 2—501(c) requires that an affidavit supporting a motion for summary judgment “set forth such facts as would be admissible in evidence.” The wholly legal conclusions, explicit and implicit, contained in Raras’s affidavit regarding the asserted legal effect of the alleged underwriting agreement are neither facts nor would they be admissible in evidence, notwithstanding whether the document itself, had it been attached, would have been admissible. “The interpreta ³⁰⁷ tion of a contract ... is a question of law----” Sy-Lene of Wash., Inc. v. Starwood Urban Retail II, LLC, 376 Md. 157, 163 , 829 A.2d 540, 544 (2003); see Langston v. Langston, 366 Md. 490, 506 , 784 A.2d 1086, 1095 (2001), abrogated on other grounds, Bienkowski v. Brooks, 386 Md. 516 , 873 A.2d 1122 (2005); Wells v. Chevy Chase Bank, 363 Md. 232, 250 , 768 A.2d 620, 629-30 (2001); Auction & Estate Reps. v. Ashton, 354 Md. 333, 340 , 731 A.2d