Taylor v. NationsBank, N.A.

BELL, Chief Judge. 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. 1 (the “respondent”), alleging breach of contract, breach of privacy and breach of legally guaranteed confidentiality, 2 premised on one of the respondent’s agents having identified his private ¹⁷⁰ checking account by disclosing the petitioner’s name and by giving his unlisted phone number to one of the petitioner’s coworkers. The Circuit Court for Baltimore City granted the respondent’s motion for summary judgment, and the Court of Special Appeals affirmed, holding, as to the breach of contract action that the disclosure was a violation of neither the petitioner’s right to privacy nor his contract with the respondent.

Taylor v. NationsBank, 128 Md.App. 414, 419-22 , 738 A.2d 893, 896-98 (1999). Having granted the petitioner’s Petition for Writ of Certiorari, 357 Md. 481 , 745 A.2d 436 (2000), we shall reverse the judgment of the intermediate appellate court. I. 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. ¹⁷¹ 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. 3 With regard to the breach of contract count, the court held that the depositor agreements which the petitioner signed were not controlling and that the trial court correctly granted summary judgment. 128 Md.App. at 418 , 738 A.2d at 896 .

Focusing on the disclosure of the petitioner’s unlisted phone number, it concluded that “[a]n unlisted telephone number ... hardly qualifies as account information,” the concern of the depositor’s agreements. The Court of Special Appeals also rejected the petitioner’s argument that Suburban Trust Co. v. Waller, 44 Md.App. 335 , 408 A.2d 758 (1979) controlled the resolution of the case. Noting that Waller makes clear that disclosure of a depositor’s name and telephone number to another customer is improper only in the absence “ ‘of the express or implied consent of the depositor,’ ” 128 Md.App. at 420 , 738 A.2d at 896 (quoting Waller, 44 Md.App. at 344 , 408 A.2d at 764 ), and that the depositor agreement in this case exempted the respondent from responsibility for the release of information to a third person when the third person has acquired, and is in possession of, the depositor’s account number, id., the court determined that “it is uncontradicted that Walter Scott, through no fault of NationsBank, possessed appellant’s account number not from NationsBank, but from reading his payment advice stub.” Id. at ¹⁷² 420, 738 A.2d at 896-97 . Once again, the court focused on the disclosure of the unlisted phone number, pointing out that Waller did not address the legality of divulging that kind of information.

Id. 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: “In other words, the plaintiff must be able to show more that just a desire to keep a particular fact private, but that the matter revealed must be a personal matter that would be highly offensive for a reasonable person to have disclosed to others.” Id. at 420 , 738 A.2d at 897 .

As to whether, in this case, a private matter had been disclosed, it reasoned: “Here, the supposedly private fact, the unlisted telephone number, is hardly the kind of matter that a reasonable person would suffer mental distress upon learning , that it had been revealed to one other person, in this case, a coworker, who used it by calling to request that his earned wages, which had been mistakenly deposited in the appellant’s account, not be withdrawn over the weekend. The particular number, the fact of its being unlisted or anything else about a telephone number, does not achieve the level of a private fact that, if revealed, could cause a reasonable person the kind of mental distress that resembles the distress suffered by victims of defamation. In order to be actionable, the disclosure must be about private facts that would be highly offensive and objectionable to a person of ordinary sensibilities. The revelation of an unlisted telephone number is unlikely to offend a person of ordinary ¹⁷³ sensibilities, and to trespass substantially upon another’s right to be free from unwarranted publicity, the right to live without interference by the public into matters with which the public is not properly concerned, the heart of the right to privacy. * * * # “Even if the unauthorized revelation of an unlisted telephone number could somehow be considered a wrong that could cause an injury from defamation, the revelation to a single person, as NationsBank did here, would not generate sufficient intrusion to constitute a violation of one’s right to privacy.” Id. at 420-21 , 738 A.2d at 897 (internal citations omitted).

II

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. ¹⁷⁴ 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 .

III

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 petitioner and violated its common law duty of confidentiality — and one which was raised in the brief filed with the Court of Special Appeals ¹⁷⁵ and in the Petition for Writ of Certiorari, see Grayson v. State, 354 Md. 1, 9, n. 1 , 728 A.2d 1280, 1284, n. 1 (1999) (in a case decided by the Court of Special Appeals, ordinarily the issues before this Court are those set forth in the certiorari petition, not the briefs); Maryland Rule 8-131(b) (whether the disclosures violated the statutory prohibition on the release of account information), but which that court did not address. 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: 4 ¹⁷⁶ “Account Information. You agree that we may furnish our customer lists to others.

We may also provide account information: (1) to Chex Systems, Inc., Equifax or other account information services; (2) to anyone who we reasonably believe is conducting a legitimate credit inquiry, subject to any applicable financial privacy laws or other laws or regulations, including, without limitation, inquiries to verify the existence or condition of an account for a third party such as a merchant or credit bureau; (3) in response to any subpoena, summons, court or administrative order, or other legal process which we believe requires our compliance; (4) in connection with collection of indebtedness or to report losses incurred by us; (5) in compliance with any agreement between the Bank and a professional regulatory or disciplinary body; and (6) to NationsBank Corporation and any of its subsidiaries or affiliates. You acknowledge that we provide for your convenience various methods by which you can obtain information on your accounts, and that our reasonable security measures cannot absolutely ensure against ‘unauthorized’ inquiries. You therefore agree that we will not be responsible for the release of information to anyone not authorized by you who has gained possession of your ATM access device or who has learned your identifying characteristics such as personal identification number (PIN), account number, or social security number. You further agree that if you give your account number to a third person by telephone, that act authorizes that third person to initiate debits to the account even if a particular transaction was not authorized.

You hereby authorize us to obtain credit reports, verification of employment and other information in respect to your accounts at any time.” ¹⁷⁷ 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