Lasater v. Guttmann

EYLER, DEBORAH S., J. Nancy E. Lasater, the appellant, and John S. Guttmann, Jr., the appellee, were married in 1980. Twenty-five years later, on August 30, 2005, Lasater sued Guttmann, in the Circuit Court for Montgomery County, for conversion, intentional infliction of emotional distress, breach of fiduciary duty, and ⁴³⁶ fraud. The tort claims were premised largely upon Gutt-mann’s alleged financial malfeasance during the marriage. Soon thereafter, on November 14, 2005, Guttmann filed for divorce, also in the Circuit Court for Montgomery County.

Then, in the tort case (the case at bar), he moved for a stay for the pendency of the divorce action. The motion was granted. The parties were divorced on November 15, 2007. The stay was lifted in the case at bar and Guttmann moved to dismiss or, in the alternative, for summary judgment as to all counts.

Lasater filed a cross-motion for partial summary judgment. The court granted Guttmann’s motion in its entirety and denied Lasater’s motion. Lasater appeals from that ruling, posing 13 questions for review, which we have consolidated and rephrased as four: I. Did the circuit court err or otherwise abuse its discretion in staying the tort suit during the pendency of the divorce case?

II

Did the circuit court err in granting summary judgment on the conversion count?

III

Did the circuit court err in granting summary judgment on the intentional infliction of emotional distress count?

IV

Did the circuit err in granting summary judgment on the fraud and breach of fiduciary duty counts? 1 ⁴³⁷ For the reasons that follow, we answer all four questions in the negative and therefore shall affirm the judgment of the circuit court. FACTS AND PROCEEDINGS Both Lasater and Guttmann are lawyers. For the duration of their marriage, Guttmann practiced law at a large firm in Washington, D.C. He was a partner at the firm and for some period of time was the firm’s managing partner. Lasater practiced law until 2000; in 2002 she stopped working to stay home full-time with the couple’s two children, a daughter born in 1995, and a second daughter born in 2000. 2 According to Lasater, 3 throughout the parties’ marriage, until 2003, Guttmann “alone ran every aspect of the family’s finances.” The couple held a joint checking account (“Joint Checking Account”) into which both of their incomes were supposed to be deposited each month. 4 Each spouse wrote checks on this account.

The monthly statements were mailed ⁴³⁸ to the parties jointly at their home address. For 23 years, Lasater never read any of the bank statements. Lasater also held a separate bank account (“Inheritance Account”) titled only in her name and containing monies she had inherited from several relatives. In 2002, the couple opened a second joint bank account in which Lasater deposited earnings from her inheritance account and other properties titled only in her name.

That account, which both parties called the “Education Account,” was used to pay private school tuition and other related expenses for the couple’s older child. According to Lasater, without her knowledge, Guttmann spent large sums of money from their joint accounts on various real estate investments, a huge collection of compact discs (“CDs”), and other expenses she cannot identify because she still does not know what they are. 5 The sums Guttmann was spending exceeded the couple’s monthly income. To deal with the situation, Guttmann took out several loans against his 401 (k) account, some with and some without Lasater’s consent, 6 took out a home equity line of credit, ran up an overdraft balance of more than $10,000 on the Joint Checking Account, and accrued credit card debt. Meanwhile, Lasater was “scrimping” to make ends meet, believing, as Guttmann was telling her, that the couple’s dire financial situation was a function of her having stopped working.

Lasater asserts that she did not know how much money Guttmann was earning during this time and that he withheld that information from her. (In fact, his annual income reached more than $350,000.) She also claims he lied to her, saying he had “gone ‘of-counsel’ ” at his law firm, and therefore no longer was entitled to receive year-end distributions, when that was not the case. Lasater asserts that her concern about the couple’s financial situation heightened in the fall of 2002, after she tried, unsuccessfully, to make a $40 ATM withdrawal from the Joint ⁴³⁹ Checking Account. In December 2002, she told Guttmann she had decided to take over “stewardship” of the family’s finances.

The next month (January 2003), she began keeping a ledger to track their income and expenses. She and Gutt-mann wrote their daily expenditures in a journal. 7 For the first time since their marriage, Lasater opened the bank statements and credit card statements that came to their house. It was then she first learned of the existence of the home equity line of credit and the overdraft balance on the Joint Checking Account. 8 According to Lasater, when she questioned Guttmann, he blamed her lack of income for the debts. Thereafter, Lasater and Guttmann refinanced their home mortgage to eliminate the home equity debt and pay off their credit card balances.

They also sold certain stocks that were losing money. 9 On April 22, 2005, Guttmann moved out of the marital home. 10 On or about May 16, 2005, he called to inform Lasater that he would be returning the following Saturday to pick up his computer and other items he had left behind. Lasater then spent three days going through the items in her husband’s home office. She found in the closet, 11 beneath gym ⁴⁴⁰ bags, sports equipment, and running gear, a red tote bag containing all of the statements for the Joint Checking Account from the past 20 years, in reverse chronological order. She removed these records from the house and placed them in a rented storage unit.

Guttmann collected the rest of his belongings from the marital home shortly thereafter and told Lasater he did not plan on returning. On August 30, 2005, Lasater filed the instant tort action against Guttmann. As mentioned above, Guttmann thereafter filed the divorce case and this case was stayed pending its outcome. The parties completed extensive discovery in the divorce case.

Lasater was awarded sole legal and physical custody of the couple’s children. The case was scheduled for trial on all other issues. On the day of trial, the ease was called and opening statements were made. Before any evidence was taken, a settlement was reached.

The parties agreed that Lasater would receive 75% of the proceeds of the sales of the marital home and the parties’ vacation home on the Patuxent River. She also would receive approximately $700,000 of the $1.2 million total balance in the parties’ retirement accounts, and an additional $50,000 lump sum payment from Guttmann. Guttmann agreed to forego any claim to the Inheritance Account and to real estate titled in Lasater’s name in Reston, Virginia, the District of Columbia, and in St. John in the Virgin Islands. Guttmann agreed to pay Lasater $12,000 a month in indefinite alimony and $5,000 a month in child support.

Finally, he agreed to maintain the children on his health insurance plan, to pay their private school tuitions, and to finance their college educations or other vocational expenses. After the stay in the case at bar was lifted, Guttmann filed a motion to dismiss or, in the alternative, for summary judgment. He argued that Lasater had failed to state any claim for which relief could be granted; and that, as to the conversion, fraud, and breach of fiduciary duty claims, the causes of action were time-barred. Lasater filed a cross-motion for ⁴⁴¹ partial summary judgment and opposed Guttmann’s motion. 12 A hearing was held, after which the court held the matter sub curia.

On December 19, 2008, the court entered an order granting Guttmann’s motion in its entirety and denying Lasater’s cross-motion. The order did not specify the basis for the court’s ruling, except to say that the dismissal was “for the reasons set forth in [Guttmann’s] Motion to Dismiss the Amended Complaint, or in the Alternative, for Summary Judgment[.]” Lasater noted this timely appeal. We shall include additional facts in our discussion of the issues. DISCUSSION I. Stay When Lasater filed this action, on August 30, 2005, she was representing herself.

She did not make any attempt at service upon Guttmann. On October 26, 2005, by then represented by counsel, Lasater filed an amended complaint. On November 14, 2005, Guttmann filed his complaint in the divorce case. One week later, on November 21, 2005, he was served with Lasater’s amended complaint in this action.

On December 7, 2005, Guttmann filed a motion to stay this action or, in the alternative, to consolidate it with the divorce case. Lasater opposed the motion. The motion to consolidate was summarily denied in an order dated January 25, 2006. A hearing was scheduled on the motion to stay.

At the hearing on February 27, 2006, Guttmann argued that a stay was required under Vaughn v. Vaughn, 146 Md.App. 264 , 806 A.2d 787 (2002). In that case, we held that the circuit court had abused its discretion when it declined to stay a tort ⁴⁴² suit filed by a husband against his wife pending the resolution of a later-initiated divorce case. We reasoned that the issues in the tort suit and the divorce case were interrelated and therefore the resolution of the divorce case potentially could resolve the tort issues as well. Lasater countered that Vaughn was “eviscerated” by Boz-man v. Bozman, 376 Md. 461 , 830 A.2d 450 (2003), in which the Court of Appeals abolished the doctrine of interspousal immunity in Maryland.

The Vaughn holding had relied upon that doctrine as a policy justification for staying the tort suit. In addition, Lasater argued that, unlike the husband’s tort claims in Vaughn , her tort claims involved financial misconduct by her spouse that occurred years before the marriage became irretrievably broken and, therefore, could not be rectified under the doctrine of dissipation. See Heger v. Heger, 184 Md.App. 83, 94-96 , 964 A.2d 258 (2009) (explaining that, under the doctrine of dissipation, marital property will be considered extant when it was used by one spouse during the marriage, when the marriage was undergoing an unreconcila-ble breakdown, to prevent the property’s inclusion in the marital estate for equitable distribution). She maintained that the tort damages she was seeking against Guttmann far exceeded any equitable distribution she could obtain through divorce and that she was entitled to a jury trial on her tort claims.

At the conclusion of the hearing, the circuit court ruled as follows: [CJertainly, Ms. Lasater has a right to have her tort claims heard. But I do feel, having reviewed the case law that was cited, and also the pleadings, that a lot of the issues may be heard by the family court. Certainly, the disputes over the marital and separate property. And, certainly, as plaintiffs counsel just outlined in his argument, that the court, the family court is able to consider equitable adjustments as well, you know.

And I do agree that I think that the issues in both cases will be intertwined, and are intertwined. And I do feel that, ⁴⁴³ and certainly it is within the Court’s discretion, I do think that staying the tort action, pending the decision in the family case, is appropriate. It doesn’t preclude Ms. Lasater from raising those issues at a later date. But I think that perhaps even the issues that are in the tort case can even be narrowed by whatever the divorce case and divorce court does.

So at this point, I am going to grant the motion to stay. The court entered an order to that effect that same day. Lasater moved to lift the stay once during the pendency of the divorce case, on December 6, 2006. Her motion was denied.

After the divorce was finalized, she again moved to lift the stay. By then, she was once again representing herself. Her motion was granted and the case at bar was placed back on the active civil docket. As discussed, supra, shortly thereafter, the court granted Guttmann’s dispositive motion on all counts.

In this appeal, Lasater contends the circuit court ruled improperly, under Bozman , by imposing the stay in this case. She concedes that, the stay having already been lifted, the issue is moot. She urges us to consider it anyway, however, arguing that the controversy is capable of repetition and evading review. She asserts that, if we do not address this issue, “tortfeasing spouses will file for divorce” to prevent tort suits from going forward against them, “effectively gutting Bozman.” We decline Lasater’s invitation to address this issue.

Even if we were to consider it, however, we would find no abuse of the trial court’s discretion in staying the instant case during the pendency of the divorce case. As we explained in Vaughn, 13 “in a proper case a court may stay proceedings before it pending the determination of another proceeding that may affect the issues raised.” 146 Md.App. at 279 , 806 A.2d ⁴⁴⁴ 787 (citing Coppage v. Orlove, 262 Md. 665, 666-67 , 278 A.2d 587 (1971)). Unlike in Vaughn , however, where we considered whether a stay of the tort suit was required, under the circumstances, the issue here is whether a stay was permissible in the exercise of the circuit court’s discretion. We have no trouble concluding that it was.

There was certain to be overlap between the issues in the divorce case and the case at bar, as will be discussed further, infra. Under the circumstances, it was well within the court’s discretion to stay this action until an equitable distribution of marital property could be achieved in the divorce case.

II

Conversion Lasater contends the court erred in granting Guttmann’s dispositive motion on her conversion claim. In that ⁴⁴⁵ claim, she alleged that Guttmann converted monies from the Joint Checking Account to his personal use without her consent, and that the monies in question were “separate and identifiable,” and therefore could be converted. Guttmann counters that the monies Lasater alleges were wrongfully converted were commingled with the couple’s joint funds and, accordingly, no longer could be identified, as a matter of law, and therefore could not be converted. Before addressing this contention, we first shall address the scope of our review.

As noted, Guttmann moved to dismiss or, in the alternative, for summary judgment as to the conversion count and the other three counts in Lasater’s amended complaint. He attached to his motion excerpts of Lasater’s deposition testimony from the divorce case; a Christmas newsletter Lasater mailed out in 2000; a transcript of the hearing in the divorce case during which the parties placed their settlement agreement on the record; and the parties’ joint statement concerning marital and non-marital property in the divorce case. Lasater opposed the motion, attaching 24 exhibits and a 106-page affidavit. 14 After holding a hearing, the circuit court issued an order granting Guttmann’s motion in its entirety “for the reasons set forth” therein and directing that Lasater’s amended complaint be “DISMISSED, WITH PREJUDICE.” As noted above, the court’s order does not reflect the ground (or grounds) upon which each count was dismissed, nor does it reveal whether the judge considered the evidentiary materials attached to the motion or to Lasater’s opposition. “Pursuant to Maryland Rule 2-322(c), when a trial judge is ⁴⁴⁶ presented with factual allegations beyond those contained in the complaint to support or oppose a motion to dismiss and the trial judge does not exclude such matters, then the motion shall be treated as one for summary judgment.” Okwa v. Harper, 360 Md. 161, 177 , 757 A.2d 118 (2000). Thus, we must treat the court’s order as the grant of summary judgment.

As we have explained, in reviewing a grant of summary judgment: We review a circuit court’s decision to grant summary judgment de novo. Crickenberger v. Hyundai Motor America, 404 Md. 37, 45 , 944 A.2d 1136 (2008). Our review is two-fold. First, we determine whether there was or was not a genuine dispute of material fact on the summary judgment record.

Hill v. Cross Country Settlements, LLC, 402 Md. 281, 294 , 936 A.2d 343 (2007). A material fact is a fact that, if found one way or the other, will affect the outcome of the case. Miller v. Bay City Property Owners Ass’n, 393 Md. 620, 631 , 903 A.2d 938 (2006). Second, if there is no genuine dispute of material fact, we determine whether the party that obtained summary judgment was entitled to judgment in its favor, as a matter of law.

Crickenberger, supra, 404 Md. at 45 , 944 A.2d 1136 . Zitterbart v. Am. Suzuki Motor Corp., 182 Md.App. 495, 501-02 , 958 A.2d 372 , cert. denied, 406 Md. 581 , 961 A.2d 555 (2008). “Conversion is an intentional tort, consisting of two elements, a physical act combined with a certain state of mind.” Darcars Motors of Silver Spring, Inc. v. Borzym, 379 Md. 249, 261 , 841 A.2d 828 (2004). It is defined as “ ‘any distinct act of ownership or dominion exerted by one person over the personal property of another in denial of his right or inconsistent with it.’ ” The Redemptorists v. Coulthard Servs., Inc., 145 Md.App. 116, 155 , 801 A.2d 1104 (2002) (quoting Interstate Ins.

Co. v. Logan, 205 Md. 583, 588-89 , 109 A.2d 904 (1954)). The “act of ownership for conversion can occur either by initially acquiring the property or by retaining it longer ⁴⁴⁷ than the rightful possessor permits.” Darcars Motors, supra, 379 Md. at 261-62 , 841 A.2d 828 . Lasater alleged in her amended complaint that Guttmann exercised unlawful dominion and control over money that rightfully belonged to [her] by spending it on personal adventures, exotic merchandise and ill-advised real estate projects in a manner that was totally inconsistent with his authority and his duty to [her] and his family. According to Lasater, Guttmann “misappropriate[d]” monies from the Joint Checking Account and her separate money for his own private use.

On several occasions, she deposited monies from her Inheritance Account into the Joint Checking Account “specifically and expressly to use for the family’s ‘day-to-day family living expenses.’ ” “The general rule is that monies are intangible and, therefore, not subject to a claim for conversion.” Allied Inv. Corp. v. Jasen, 354 Md. 547, 564 , 731 A.2d 957 (1999). An exception to this rule exists, however, if the monies alleged to have been converted are “specific segregated or identifiable funds.” Id. According to Lasater, her deposits of monies from the Inheritance Account were “specific, segregated, identifiable separate funds” that Guttmann wrongfully converted.

While not entirely clear, it appears that she is asserting that, at Guttmanris request, she made specific transfers of monies from the Inheritance Account to the Joint Checking Account for household expenses. She does not maintain that these specific funds then were spent by Guttmann on non-household expenses or that they otherwise were wrongfully converted. Rather, she asserts that Guttmann on numerous occasions spent funds from the Joint Checking Account without her consent for non-marital purposes and, on at least one occasion, made a large transfer to another account. As Guttmann counters, however, once these monies were commingled with the couple’s joint funds, they lost their separateness for purposes of a conversion claim.

See Jasen, supra, 354 Md. at 565 n. 4, 731 A.2d 957 (noting that a claim for conversion of wages by way of a ’wrongful garnishment ⁴⁴⁸ only could stand if the garnished monies had not be commingled with other funds). For this reason alone, Lasater’s conversion claim fails and there was no error in the grant of summary judgment as to this count.

III

Intentional Infliction of Emotional Distress The elements of the tort of intentional infliction of emotional distress (“IIED”), first recognized in Maryland in Harris v. Jones, 281 Md. 560, 566 , 380 A.2d 611 (1977), are: “(1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; [and] (4) The emotional distress must be severe.” (Citing Womack v. Eldridge, 215 Va. 338 , 210 S.E.2d 145 (Va.1974).) “Extreme and outrageous” conduct is such that is “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Id. at 567, 380 A.2d 611 (quoting Restatement (Second) of Torts § 46 cmt.d (1965)). “Whether the conduct complained of meets this test is, in the first instance, for the court to determine^]” Batson v. Shiflett, 325 Md. 684, 734 , 602 A.2d 1191 (1992). In support of his motion, Guttmann argued below that, accepting as true all of the allegations in the amended complaint and the facts averred in Lasater’s affidavit, his conduct did not rise to the level of “extreme and outrageous.” For the reasons that follow, we agree. Lasater makes the following relevant allegations in her amended complaint and in her affidavit: Guttmann actively deceived her for many years with regard to his income, his expenditures, and his extramarital activities; Guttmann, on one occasion, lost his temper, yelled that he did not like her “tone of voice,” and she did not “trust him”; Guttmann took advantage of his knowledge of abuse Lasater suffered as a child and her experience growing up with very little money; ⁴⁴⁹ Guttmann “deliberately, consciously, and maliciously made [Lasater] feel solely responsible for the family’s financial plight”; and Guttmann “never expressed any remorse” or “ ‘came clean’ ” about his role. As a result of this conduct, Lasater “experienced a slow, steady and debilitating decline in her physical health due to gratuitous and unnecessary stress,” including gastrointestinal problems, pneumonia, vestibular neuronitus, 15 and premature menopause.

In addition, Guttmann subjected Lasater to public humiliation. The example she gives is that the chaplain at her daughter’s private school asked the congregation to “pray ‘for John and Nancy’” as a result of their financial troubles. In her affidavit, Lasater describes several other instances when Guttmann blamed her for their financial problems, troubles, yelled at her, humiliated her, or otherwise caused her stress. She described a “particularly heinous” incident that happened in January of 2003, after she discovered Guttmann’s credit card debt and questioned him about it.

She was sobbing and asking him why he had not told her about the debt. He responded, “I didn’t want you to know what you were doing to our family.” In another instance, she avers that in 1996 she questioned Guttmann about why she needed to work outside the home and he became enraged, leapt from the couch where they were sitting, and yelled that “he was working ‘to buy the butt wipes!’ ” for their daughter. Another time, in 2004, Guttmann yelled at her “so loudly and so aggressively” that she curled up into a fetal position. In the 30 years since the Court of Appeals recognized the tort of IIED, it has upheld such claims only four times.

See Faya v. Almaraz, 329 Md. 435 , 620 A.2d 327 (1993) (reversing dismissal when HIV-positive surgeon operated on the appellants without their knowledge of his disease); Figueiredo- ⁴⁵⁰ Torres v. Nickel, 321 Md. 642 , 584 A.2d 69 (1991) (reversing dismissal when plaintiff alleged psychologist engaged in sexual relations with plaintiffs wife during the time he was counseling the couple); B.N. v. K.K., 312 Md. 135 , 538 A.2d 1175 (1988) (cause of action for IIED could exist when physician had sex with nurse without informing her he had herpes and infected her with the disease); Young v. Hartford Accident & Indem. Co., 303 Md. 182 , 492 A.2d 1270 (1985) (reversing dismissal when workers’ compensation insurer insisted that claimant submit to psychiatric evaluation for the “sole purpose” of harassing her and forcing her to drop her claim or commit suicide). The Court of Appeals has emphasized that “the tort is to be used sparingly and only for opprobrious behavior that includes truly outrageous conduct.” Kentucky Fried Chicken Nat’l Mgmt. v. Weathersby, 326 Md. 663, 670 , 607 A.2d 8 (1992) (citing Batson, supra, 325 Md. at 734-35 , 602 A.2d 1191 ). The behavior alleged in the instant action simply does not rise to the level of extreme or outrageous conduct.

Assuming as true Lasater’s allegations, Guttmann caused his wife to believe she was to blame for their financial difficulties, yelled at her on several occasions, and deceived her about then-finances and his personal life. This behavior is not “so extreme in degree [ ] as to go beyond all possible bounds of decency[.]” Harris, supra, 281 Md. at 567 , 380 A.2d 611 . It pales in comparison to the behavior alleged in the few cases held to have met the high threshold for extreme or outrageous conduct. Accordingly, the circuit court did not err in granting summary judgment in favor of Guttmann.

IY. Breach of Fiduciary Duty and Fraud In her amended complaint, Lasater alleged that Guttmann “took advantage of [a] relationship of trust and confidence” to secretly finance real estate investments, CD purchases, and other as yet undetermined expenditures, and that he “intentionally defrauded and deceived [her] in order to misappropri ⁴⁵¹ ate for his own private purposes hundreds of thousands of dollars of joint funds and [her] money.” Lasater asserted that Guttmann owed her duties of care, loyalty, and disclosure by virtue of their relationship as husband and wife and what she alleges was his dominant position in their marriage, and that he breached these duties by spending their joint monies and her separate monies on “personal adventures and exotic merchandise”; by failing to inform her about the couple’s true financial situation; and by actively concealing their debts. With respect to the fraud count, Lasater alleged that Gutt-mann made numerous misrepresentations to her and “remained silent when there was a duty to speak, about material matters relating to the couple’s and Lasater’s finances.” Guttmann argued below that Lasater’s fraud and breach of fiduciary duty claims were barred by limitations; and that Lasater failed to state a claim for which relief could be granted as to both counts because he had no legally cognizable duty to her to disclose spending from their Joint Checking Account and he was incapable of concealing such conduct from her when she had equal access to the couple’s bank statements. Lasater responded that the statute of limitations was tolled by Guttmann’s fraud and, accordingly, her claim did not accrue until August of 2005, when she discovered the red tote bag containing their Joint Checking Account statements.

She further argued that she had complied with the dictates of Kann v. Kann, 344 Md. 689 , 690 A.2d 509 (1997), in framing her cause of action for breach of fiduciary duty and that, by virtue of their “confidential relationship,” Guttmann owed her an affirmative duty to disclose and not to misrepresent his financial dealings and the couple’s financial status. Lasater repeats her arguments below in this Court, as does Guttmann. Because we find merit in the assertion that, on the facts viewed most favorably to Lasater, Lasater has not stated a viable claim for breach of fiduciary duty or fraud, we shall affirm the grant of summary judgment on those counts on that basis. ⁴⁵² (a) Breach of Fiduciary Duty The seminal Maryland case about breach of fiduciary duty as a cause of action at law is Kann v. Kann, supra, 344 Md. 689 , 690 A.2d 509 . In that case, the beneficiary of a trust brought a counterclaim against the trustee in a declaratory judgment action brought by the trustee.

The trustee was seeking a declaration of the rights and obligations of the parties to certain segregated assets previously part of the trust. The beneficiary made a claim for breach of fiduciary duty in her counterclaim, and prayed a jury trial. Her counterclaim was dismissed for failure to state a claim for which relief could be granted, and the declaratory judgment action was tried to the court. The trustee prevailed.

The beneficiary appealed, arguing, in part, that the circuit court had erred in dismissing her counterclaim and not trying her claim to a jury. The Court of Appeals first considered whether the beneficiary had been entitled to a jury trial on any of her claims. It concluded that she had not because a suit by a beneficiary against a trustee for breach of fiduciary duty historically has been within the equity jurisdiction of the circuit court. The Court next turned to the question whether a breach of fiduciary duty “constitutes a tort in the sense that it would be actionable at law, triable to a jury, and, in appropriate cases, capable of supporting punitive damages.” Id. at 706 , 690 A.2d 509 .

The Court noted that it twice had assumed, without deciding, the existence of such a separate cause of action in tort, see Adams v. Coates, 331 Md. 1, 12 , 626 A.2d 36 (1993), and Alleco, Inc. v. Harry & Jeanette Weinberg Found., Inc., 340 Md. 176, 191-92 , 665 A.2d 1038 (1995), but never actually had recognized the tort. The Court looked to Section 874 of the Restatement (Second) of Torts (1977), entitled “Violation of Fiduciary Duty,” which states: “One standing in a fiduciary relation with another is subject to liability to the other for harm resulting from a breach of duty imposed by the relation.” It concluded, based ⁴⁵³ upon the comments to Section 874, that the section was not meant to create an action at law for any breach of fiduciary duty. Rather, the traditional “law/equity dichotomy” applied equally to such breaches and, therefore, the starting point for determining the existence of such a cause of action remained an historical analysis of the remedy (or remedies) available for the particular breach alleged. In its analysis, the Court rejected this Court’s analysis in Hartlove v. Maryland School for the Blind, 111 Md.App. 310 , 681 A.2d 584 (1996), overruled by Kann, supra, 344 Md. at 709 , 690 A.2d 509 , in which a divided panel held that “fiduciaries who breach their duty should be held accountable under an independent cause of action aimed” at their wrongful conduct. 111 Md.App. at 331 , 681 A.2d 584 .

The Kann Court concluded that, in purporting to recognize a general cause of action in tort for breach of fiduciary duty, this Court had “read too much into § 874 of the Restatement.” 344 Md. at 710 , 690 A.2d 509 . That section, according to the Court, recognizes “the universal proposition that a breach of fiduciary duty is a civil wrong, but the remedy is not the same for any breach by every type of fiduciary.” Id. Relying upon its earlier conclusion that the beneficiary’s claims against the trust were equitable in nature, the Court rejected the beneficiary’s attempt to enlarge the damages liability of the trustee by transforming her equitable suit into a tort action in which compensatory damages and possibly punitive damages could be recovered. The Kann Court held as follows: [The beneficiary] asks this Court to make a very far reaching change in Maryland law by creating a tort that will apply to all fiduciaries.

Neither [the appellant] nor the Court of Special Appeals in Hartlove has undertaken to review all of the relationships to which the new tort would apply. There has been no analysis of whether, as to any given fiduciary relationship, the tort would duplicate existing remedies at law or would eliminate, as in the case of trustees, the nearly complete exclusivity of equitable jurisdiction. There has been no analysis of the effect of the new ⁴⁵⁴ tort on the probate area. Further recognition of the new tort would make trustees, and any other fiduciaries whose breaches are currently primarily remediable in equity, subject to potential liability for punitive damages.

Accordingly, we hold that there is no universal or omnibus tort for the redress of breach of fiduciary duty by any and all fiduciaries. This does not mean that there is no claim or cause of action available for breach of fiduciary duty. Our holding means that identifying a breach of fiduciary duty will be the beginning of the analysis, and not its conclusion. Counsel are required to identify the particular fiduciary relationship involved, identify how it was breached, consider the remedies available, and select those remedies appropriate to the client’s problem.

Whether the cause or causes of action selected carry the right to a jury trial will have to be determined by an historical analysis. Counsel do not have available for use in any and all cases a unisex action, triable to a jury. This Court would not preside over the death of contract by recognizing as a tort a breach of contract that was found to be in bad faith. Nor shall we preside over the death of equity by adopting [the appellant’s contentions.

Id. at 713, 690 A.2d 509 (internal citations omitted) (italics in original; bold added). The breach of fiduciary duty tort claim Lasater is pursuing is for the violation by one spouse of an alleged fiduciary responsibility to the other spouse to properly use and maintain marital funds for the benefit of the marital unit. (Although Lasater and Guttmann no longer are married, Lasater’s breach of fiduciary duty claim is based upon their prior status as spouses and upon events alleged to have happened during the marriage.) Under Kann , therefore, the threshold question is whether any fiduciary duty could exist under the facts asserted, when the claimed fiduciary relationship was husband and wife. ⁴⁵⁵ Before we embark upon our analysis of that issue, we must disabuse Lasater of the notion, central to the arguments she makes, that the abrogation of the doctrine of interspousal immunity in Maryland compels the conclusion that breaches of marital duties now may be vindicated in this State by causes of action in tort for breach of fiduciary duty between spouses. The doctrine of interspousal immunity acted as a bar to a civil action by one spouse against the other.

It operated to prevent one spouse from taking legal action against the other spouse for a civil wrong that, had it been committed by a non-spouse, would have been actionable. For example, a driver on a Maryland road owes a duty to others generally to operate his or her vehicle with care. In the days of interspousal immunity, a spouse who drove negligently, causing injury to the other spouse, could not be sued for damages, even though the negligent spouse would have been liable in tort to the injured spouse if they were not married. The removal of the bar of interspousal immunity in Maryland means that the same injured spouse now can sue the negligent spouse in tort, just as the injured spouse could have sued any other negligent driver.

It does not mean, however, that the marital relationship itself now gives rise to duties that are actionable in tort. See Doe v. Doe, 358 Md. 113, 121 , 747 A.2d 617 (2000) (stating that “[a] claim of immunity is a defense. It need be reached only if the plaintiff has alleged a viable cause of action.”). Accordingly, the question whether Maryland recognizes marital torts is independent of the issue of interspousal immunity To be sure, because interspousal immunity existed throughout Maryland’s legal history, until the last vestiges of the doctrine were removed in 2003, the marital tort issue never could arise, as spouses could not sue each other at all.

It does not follow from the abrogation of the doctrine, however, that marital torts are now cognizable in Maryland. We return to our analysis. A fiduciary relationship sometimes is described in contrast to a confidential relationship, with which it often is confused but from which it differs. In Buxton v. Buxton, 363 Md. 634, 654 , 770 A.2d 152 (2001), the ⁴⁵⁶ Court of Appeals explained the difference between “the duties and obligations of true fiduciaries” and the duties and obligations “that may exist between any two or more people” who by their conduct enter into a confidential relationship: Professor Scott articulates the distinction quite well.

A fiduciary relationship, he observes, such as between trustee and beneficiary, guardian and ward, agent and principal, attorney and client, partners in a partnership, corporate directors and their corporation, “involves a duty on the part of the fiduciary to act for the benefit of the other party to the relation as to matters within the scope of the relation.” 1 Scott and Fratcher, The Law of Trusts [ ] § 2.5 [ (4th ed.1988) ]. That is not necessarily the case with respect to persons in a confidential relationship. Scott and Fratcher note: “A fiduciary relation is to be distinguished from a merely confidential relation. A confidential relation exists between two persons when one has gained the confidence of the other and purports to act or advise with the other’s interest in mind.

A confidential relation may exist although there is no fiduciary relation; it is particularly likely to exist where there is a family relationship----A fiduciary relation involves certain consequences as to transactions between the parties that flow automatically as a matter of law from the relation---- On the other hand, where there is merely a confidential relation between the parties, such consequences do not automatically follow.” Buxton, supra at 654-55 , 770 A.2d 152 (quoting 1 Scott & Fratcher, The Law of Trusts, supra, § 2.5). As the above makes evident, in Maryland, a husband and wife are not true fiduciaries, as a matter of law, absent an agreement establishing that relationship. 16 More ⁴⁵⁷ over, Maryland law also makes plain that a husband and wife are presumed not to occupy a confidential relationship. Upman v. Clarke, 359 Md. 32, 42 , 753 A.2d 4 (2000); Bell v. Bell, 38 Md.App. 10, 13-14 , 379 A.2d 419 (1977). 17 The Court in Upman explained that, while there are some relationships that are presumed confidential, “[o]therwise, and particularly in family relationships, such as parent-child and husband-wife, the existence of a confidential relationship is an issue of fact and is not presumed as a matter of law.” 359 Md. at 42 , 753 A.2d 4 . 18 ⁴⁵⁸ The proponent of a confidential relationship bears the burden of showing that it exists, ie., that by virtue of the relationship she (or he) was justified in assuming that the other spouse would not act in a manner inconsistent with her (or his) welfare. Hale v. Hale, 74 Md.App. 555, 566 , 539 A.2d 247 (1988); Tedesco, supra, 111 Md.App. at 673, 683 A.2d 1133 ; Bell, supra, 38 Md.App. at 13 , 379 A.2d 419 .

See also Green v. Michael, 183 Md. 76, 84 , 36 A.2d 923 (1944) (holding that, “ ‘[t]o establish [a confidential relationship,] there must appear at least a condition from which dependence of the grantor [of a trust] may be found’ ”) (quoting Snyder v. Hammer, 180 Md. 690 , 23 A.2d 653 (decision reported without opinion), 180 Md. 690 , 23 A.2d 653, 655 (opinion reported in full) (1942)). Among the factors to be considered in deciding whether a confidential relationship exists are “ ‘the age, mental condition, education, business experience, state of health, and degree of dependence of the spouse in question.’ ” Tedesco, supra, 111 Md.App. at 671, 683 A.2d 1133 (quoting Bell, supra, 38 Md.App. at 13-14 , 379 A.2d 419 ). The Maryland law of confidential relationships has developed in cases involving family relations in which the validity vel non of particular transactions or agreements between the parties has been in question. See, e.g., Upman, supra, 359 Md. at 42 , 753 A.2d 4 (confidential relationship between elderly and questionably competent donor of trust and donee nephew who cared for her needs was not in dispute); Hale, supra, 74 Md.App. at 555 , 539 A.2d 247 (confidential relationship between husband and wife when wife less educated and physically and emotionally unwell).

In such cases, the effect of the trier of fact finding a confidential relationship between the parties is to shift the burden of proof away from the person seeking to set the transaction or agreement aside and to place the burden on its proponent to show that it should remain in place. In Bell , for example, this Court explained that, in the absence of proof of a confidential relationship, a ⁴⁵⁹ separation agreement between spouses that is not facially unjust or inequitable is presumed valid, and the spouse challenging the agreement bears the burden of proving that it resulted from fraud, coercion, or mistake. 38 Md.App. at 14 , 379 A.2d 419 . When a confidential relationship is shown to exist between the parties, however, the burden shifts to the spouse advocating the agreement to prove that it was not the product of fraud, coercion, or mistake. 19 Because Maryland does not consider the relationship between spouses to be one that is by nature fiduciary, and there is no allegation that by agreement Guttmann was acting as a true fiduciary, Lasater’s breach of fiduciary duty claim must be based, if at all, on an assertion that, as a matter of fact, she occupied a confidential relationship with Guttmann with respect to the couple’s finances. (For ease of discussion, we shall continue to call the claim one for breach of fiduciary duty.) It is important to note, however, that this case does not concern a particular transaction or agreement between Lasater and Guttmann that Lasater is seeking to set aside.

Her breach of fiduciary duty claim is far more expansive than that. She is alleging that, for virtually all of the parties’ marriage, she occupied a position of trust and confidence vis a vis her husband regarding his financial management of their marital funds; that for the duration of the marriage, at least until 2003, he mismanaged those funds; and that, as a result, over time the couple’s marital estate lost its value, so that it was worth less than it would have been had Guttmann not been mismanaging it. This action is not an attempt by ⁴⁶⁰ Lasater to set aside a particular transaction or agreement, or even specific transactions or agreements, between her and Guttmann. It is an attempt to recover as damages her portion of the loss in value of the marital estate caused by Guttmann’s breach of the duty she maintains he owed her to properly manage the marital funds he controlled.

As already mentioned, Lasater maintains that Guttmann depleted the parties’ marital estate over the years by spending marital funds on unsuccessful real estate transactions in the Carribean, on an extensive CD collection, and on other items and activities not specified. One particular example she gives, to illustrate that she will be able to prove damages, is the couple’s marital home in Bethesda. Lasater asserts that because Guttmann was wasting marital funds on losing endeavors, or at least on endeavors that did not advance the position of the marital estate, he did not spend any of the funds on upkeep of the marital home. As a consequence, it became run down.

When the parties put it on the market as part of the divorce settlement, it sold to a developer for $650,000. Within months, the developer renovated the house and sold it for $1,150,000. Lasater is seeking tort damages from Guttmann for breach of fiduciary duty for the difference between 75% of the profit that would have been realized from the sale of the marital home had the home been maintained and 75% of the profit that actually was realized from the sale of the home. Our survey of cases from other jurisdictions reveals that, even when the relationship of husband and wife is considered confidential as a matter of law, courts have not permitted a spouse or former spouse to use a breach of fiduciary duty action to launch a broad attack on the other spouse’s (or former spouse’s) handling of financial matters during the marriage.

For example, in Smith v. Smith, supra, 438 S.E.2d at 458, the North Carolina Court of Appeals upheld a trial court’s dismissal of a breach of fiduciary duty claim by a former husband against a former wife. The former husband had alleged that, during the marriage, the former wife had engaged in numerous adulterous affairs, and had used marital ⁴⁶¹ funds to finance them. He sought to recover those funds as damages. The court observed that the North Carolina appellate courts only had found a breach of a spouse’s confidential duty to the other spouse “within the context of a distinct agreement or transaction between the spouses.” Id. at 459.

Noting that the former husband was not seeking to set aside a particular transaction or agreement between the former spouses, the court held that he had not stated a cause of action for which relief could be granted. See also Beers, supra, 724 So.2d at 117 (affirming the dismissal of a tort action for breach of fiduciary duty and fraud against a former husband and holding “that one spouse may not be sued by the other in tort for a breach of [the]