*1 citing the respondent’s “unblemished record as an attorney,” the nature of the crime—that it “involv[ed] scienter or turpitude”—, moral and that the “violation arose from conduct outside of his normal legal practice,” determined that respondent had met his burden of showing that an interim suspension required was not for protection of the public.
Those considerations that the District of Columbia Court of Appeals found apply determinative equally agree here. We with that court that the respondent good has shown cause. Accordingly, deny we the petitioner’s request interim suspension.
It is so Ordered.
v. AMERICA,
BANK OF N.A. Sept.Term,
No. 28 2009. Appeals
Court of Maryland. March *3 Kleeman, Towson, MD, for Petitioner. Stephen J. (Jefferson of Miles & Stock- Jeffrey Wright M. Geller V. P.C., Towson, MD), brief, Respondent. on bridge, BELL, C.J., HARRELL, BEFORE ARGUED BATTAGLIA, GREENE, MURPHY, BARBERA and ADKINS, JJ.
GREENE, Judge. (“the America, Bank”), case, an
In this Bank of N.A. added account in the name of checking opened individual’s name to a (“Schultz”), the now-deceased father of Ray Melvin Schultz (“Petitioner”). Bank, Petitioner sued the Stephen Schultz negligently the Bank acted and breached its alleging to, it the individual’s name contract with Schultz when added from, the account. A and allowed her to withdraw funds favor, but the County jury Baltimore found Petitioner’s judgment. reversed that The inter- Special Appeals Court of concluded, unreported court an appellate opinion, mediate to testimony necessary establish Bank’s adding standard of care when an individual’s name to a bank had produced account and that Petitioner no evidence on that addition, issue. the court concluded that Petitioner had not sufficient evidence to establish that the Bank produced breached its contract with Schultz.
Upon our own review of the we affirm the shall judgment Special Appeals. of the Court of Petitioner could producing not have succeeded on his claim without testimony establishing the Bank’s standard of care. an Adding individual’s name to a bank account involves an understanding procedures of internal bank that the trier of appreciate. fact cannot be expected Accordingly, expert explain jury the reasonable commercial standards in the prevailing respect area with adding to a checking verifying names customer’s account and reason, signatories. identities of the For the same Peti- tioner could not have succeeded on his breach of contract claim. That claim was based on a breach of the Bank’s implied care; Petitioner, contractual exercise however, no produced expert testimony establishing the extent obligation imposed by of the that standard of care. Accord- ingly, agree we with the Court of Special Appeals’ decision to trial judgment reverse court.1
I.
Procedural History Petitioner, in capacity his as Personal Representative Schultz, Ray Estate of Melvin filed the underlying action requested 1. The Bank has that we consider whether the trial court Petitioner, properly aggregated two amounts awarded to should we rule against in favor of Petitioner on both claims. As we rule Petitioner on claims, presented cross-petition both and because the Bank certiorari, we need consider issue. *5 20 to recover County, seeking
the Circuit Court for Baltimore alleges wrongfully funds that he were disbursed from bank presented held with the Bank. Petitioner account Schultz concerning both appeal, two claims that are relevant this adding the Bank’s action in the name of Robin Holbrook (“Holbrook”) account and in Holbrook to allowing to Schultz’s claim, withdraw funds from the account.2 Petitioner’s first argued Petitioner that the Bank had breached a contract with claim, Bank argued Schultz. In his second Petitioner that the negligently had handled Schultz’s account. 26, on After place
The trial
took
June
and
Petitioner
the Bank moved for
judgment
rested his
again
the trial court denied the motion. The Bank
moved for
evidence,
after the close of all the
which the trial
judgment
jury
also
considered the two counts and
court
denied.
both,
$23,475
on
him
on
awarding
found
favor
$7,600
the breach of contract claim and
on the negligence
Bank,
the trial court
objection
claim. Over the
awarded
$31,075.
aggregate
Petitioner an
amount of
timely appeal,
Special
The Bank noted a
and the Court of
of the trial court. The inter-
Appeals
judgment
reversed
appellate
mediate
court concluded that the trial court should
motion for
Peti-
granted
judgment
Petitioner’s
because
the Bank’s
produced
proving
tioner
breach of the
of care for the
claim and
insufficient evidence to show that
the Bank had
produced
subsequently
breached a contract with Schultz. Petitioner
certiorari,
a writ of
which we
petitioned
grant-
Court for
America,
ed.
v. Bank
408 Md.
Facts the Case 5, 2005, There July age Schultz died on at the of 81. death, to his but the dispute leading up some about events parties agree well-being seem to that Schultz’s health and Holbrook, presented against 2. Petitioner also several claims but she did participate judgment against A default entered her. trial. He had been in the months before he died. were decline drinking heavily, had February car accident in been *6 died, he property. and his Before neglected and had himself however, relationship with Hol- developed he some sort brook, had moved into Schultz’s home. Holbrook who giver, alleg- but Petitioner apparently acting as Schultz’s having her advantage es that Holbrook also took Schultz account with the Bank. Petitioner has name added to Schultz’s occurred, as to how this one which advanced two theories adding coerced into her name to his account Holbrook Schultz through and another in Holbrook had her name added which in fact There is no that Holbrook’s name was forgery. dispute added to account and that she made withdrawals Schultz’s from the account. Bank, against alleging
Petitioner filed suit that the Bank Bank negligently handled Schultz’s account and that trial, pre- breached its contract with Schultz. At Petitioner witness, handwriting sented three witnesses. The first a signatures examined of Schultz’s known expert, several name to signature card that was used to add Holbrook’s pur- He opined signature Schultz’s bank account. signature to be on the card was not the porting Schultz’s of business. signature that Schultz used the normal course He also testified that several checks drawn on Schultz’s ac- signature. with appeared forged count have been Schultz’s witness, Schultz’s, the deterio- The next a friend of testified to death, leading up specifically ration of Schultz’s health to his to his heavy drinking his and his lack of attention own property. She also testified to her observance of Holbrook intend- understanding Schultz’s home and her of what Schultz witness, ed for his estate. Petitioner’s third his former attor- death, ney, explained July the week after Schultz’s on 2005, she obtained a order temporary restraining directing account, gave copy Bank to freeze Schultz’s that she temporary restraining manager order to a branch of the Bank her that the day,3 manager and that the branch informed
account was then frozen.4 cross-examination, attorney 3. On Petitioner’s former admitted that she temporary restraining manager served the Bank, order on a branch served the but that she could remember if she also Bank’s 2-124(d). agent, required by Maryland only resident as Rule The other attorney’s regarding receipt evidence the Bank’s of the order was the manager that the branch told her the account was frozen and acknowledging Bank that the account was frozen. letter from the 13, 2005, July days attorney gave letter dated two after the manager. establishing order to the branch There was no evidence when, if, agent copy or the resident received a of the order or what the manager receiving branch did with the order after it. complaint, alleged, among things, In his other that the negligent Bank breached its contract with Schultz and was when it ”permitt[ed] the withdrawal of funds Account in viola- [Schultz's] from *7 11, July Temporary Restraining allega- [the] tion of Order.” This records, presumably suggest tion is based on Schultz’s bank which 12, July account the Bank 2005, have disbursed funds from Schultz’s on day attorney gave the after Petitioner’s former the order to the manager. bank however, not, possible impact We will consider the of the order for a First, the not that the number of reasons. record does establish Bank actually manager disbursed funds after the bank received the order. Schultz’s bank statements show that several ATM withdrawals from 12, July "posted” Schultz's account were on but the line items for those suggest actually previous withdrawals that the funds were disbursed on days. "posted" July One check and one cash withdrawal were also on 12, establishing actually but was no evidence that this was the there present any date when funds were disbursed. Petitioner did not testi- mony explaining actually or other evidence whether these funds were given disbursed after the Bank was the order. Second, when, ever, Petitioner did not establish if the order was properly explained supra served on the Bank. As note Petitioner’s attorney former admitted that she did not remember whether she ever agent, by Maryland required served the order on the Bank’s resident as presented establishing law. Petitioner no other evidence what manager branch did with the order after he received it or if the resident agent acknowledged by ever received the order. The Bank a letter 13, 2005, July dated account, that it received the order and froze Schultz’s suggesting but there is no evidence that the Bank disbursed July funds from Schultz’s account after Third, any argument regarding properly the order is before us for (explaining appellate review. See Md. Rule 8-131 that an court will jurisdictional ordinarily plainly ap- not decide a non issue "unless it pears by the record to have been raised in or decided the trial court”). receive, request, jury Petitioner did not and the did not might impacted instructions about how the order their verdict. friend, Like Schultz’s the final witness. Petitioner was health, in Schultz’s the deterioration testified to signa- that the and, he testified handwriting expert, like the account were bank checks drawn from Schultz’s on some tures activity been that there had explained He also not authentic. Holbrook, even met account after Schultz on Schultz’s ATM addition, he explained ATM. never used an though Schultz account the Bank freeze Schultz’s attempted that he to have death, after, of, over day and the Schultz’s evening on the not allow him to the Bank would but that phone person, met Holbrook that he had never do so. He further testified that he did not death, although he admitted before Schultz’s any money. Peti- if Holbrook to have know Schultz wanted otherwise, or any testimony, expert present tioner did not to a bank when applicable of care regarding He did name to a customer’s account. adding an individual’s documents, evidence, signature among into other submit initially opened his account signed when he card that Schultz Bank, Holbrook’s name signature adding card with Bank, Bank the letter from the account with the Schultz’s frozen, from paid had been checks indicating that the account account, February through July 2005 bank statements account, regarding training for the and the Bank’s documents the addition of names to accounts. judg- Bank moved for
After Petitioner rested his of a ment, had no evidence arguing presented that Petitioner that Petitioner and the Bank and contract between Schultz *8 on Schultz’s behalf. capacity had failed to his to sue prove The Bank and the Bank’s motion. The trial court denied deposi- of the portions Petitioner then both read into evidence who was Banking Managers, tion one of the Bank’s Center manager’s testify. According deposition to to unavailable presented arguments order the briefs he about Petitioner also Appeals Special and to this Court. When submitted to the Court of Court, during arguments oral before this Peti- asked about the order explain are not inclined to consider an tioner did not its relevance. We court, argument was advanced in the trial the intermediate that not court, appellate or this Court. testimony, and Holbrook had at his appeared together Schultz bank branch to added have Holbrook to his account. The manager procedure by also which he claimed to explained have received identification from both Schultz and Holbrook and stated that he had witnessed both Schultz and Holbrook signing signature card.5
After the presentation testimony, of this the Bank closed its motion, case and motion judgment. renewed its Bank that argued prove first Petitioner had failed to standard of care for his claim negligence because he had not produced expert testimony establishing duty the Bank’s to Second, Schultz. the Bank that argued Petitioner had failed provide any evidence supporting causation element of Third, his claim. the Bank negligence argued had failed to his breach of contract claim had prove because he not presented any provision evidence of a contract that had been argued response breached. Petitioner that expert testimony care, necessary was not to show the standard of claim, that he had established the elements of his and that the Bank had breached the implicit contractual of ordinary opened care that arose when Schultz his account motion, with the Bank.6 The trial court denied the Bank’s concluding expert testimony unnecessary to establish the standard of care the facts of on that there was sufficient evidence to submit the claim jury, argued 5. Petitioner has in his briefs submitted to this Court and to the Special Appeals signature Court of that "an examination of the card Banking testimony Manager. belied” the of the Center He notes that card, security printed Schultz’s social number is on the but Holbrook’s signature is handwritten. He also
25
and
that Schultz
card could
signature
that
the
establish
and
a
Bank
entered into
contract.7
the
had
other
jury. Among
The two
were submitted
counts
must exercise
bank
“[a]
instructed that
things,
jury
the
to its
custody
belonging
of
to
funds
respect
care with
“means observance
ordinary care
and that
depositor”
in
the
area
prevailing
standards
commercial
reasonable
to
business
respect
the
the
is located with
person
which
jury
The
was also instructed
engaged.”
the
is
person
which
claim,
trial
regarding
contract
denying
motion
In
the Bank’s
court stated:
issue,
deny
going
respect
I'm
to
with
to
contract
On
motion
pretty
is
clear
respect to that count.
I think the law
the motion with
think
a contract.
I
signature
is a contract and creates
that
card
enough
jury
it to
on that.
evidence to send
there’s
opined, during
initially
regard
expert testimony, the
court
trial
motion,
testimony might
expert
be
arguments on the Bank’s
that
everyone
operate.”
is familiar with how banks
because "not
however,
ruling,
day,
the court
following
when the court issued its
Referring
opposite
to Free State Bank & Trust
conclusion.
came
Ellis,
(1980),
Md.App.
wc discuss in
independent from the contract claim.” parties given opportunity except 8. Both were jury an instruc- party tions. Neither did so. explanation provides why jury 9. The record awarded these particular dollar amounts. petition in his following question presented for writ of certiorari: the standard necessary to establish expert opinion an Is to an a customer ac- adding when [b]ank
of care for count[?] prece- prior or doubt on overrule cast
2. Does this case Special Appeals as and the Court dents of this [Court] establishing the testimony as necessity opinion of expert industries[?] care and other standard of for [blanks in a implicit implied duty 3. Does proof of relationship require contractual depositor-[b]ank implied duty[?] any beyond this evidence third the first and facts of we answer Under the *11 in second the question in the affirmative and the questions negative.
II. Negligence in case concern presented first two this questions negligence of care in a case where has applicable standard we have been asked against Specifically, a bank. alleged been to testimony to determine is estab expert whether and such a lish the standard of care a bank whether Under prior would from our cases. requirement deviate case, of conclude that facts we of This case in necessary to establish the standard care. proce in alleged regard to internal bank negligence volved expected appreciate dures that the trier fact could not be of of This is consis testimony. without the aid conclusion decisions, as well as those of Court previous tent with our a involving allegations negligence by of Special Appeals, of professional. are elements that
In a there four negligence duty to him plaintiff prove prevail: [or must “a owed (or part), he is a a breach of [or to a class of which her] she] relationship between the duty, legally cognizable a causal suffered, harm and duty damages.” breach of and the Bank, 527, 531, 756, 515 A.2d v. First 307 Md. Jacques Nat’l 28 (1986).
758 to the bank regard duty a owes to its custom funds, disbursing ers when customers’ banks are to be strictly every wrongful held liable for disbursement. See Goodman, 452, 459, Commonwealth Bank v. 128 Md. 97 A. (1916) 1005, (noting bank required 1008-09 that a is not every possible take precaution against wrongful disburse ments). Instead, our case law and the comments to the (“Commercial Code”) Maryland Uniform Commercial Code duty “ordinary establish that a of applies. Taylor care” See v. Co., 149, 155-56, 838, Equitable Trust 269 Md. 304 A.2d 841- (1973) 42 (applying ordinary care to a bank’s funds); in alleged disbursing a customer’s Md. (1975, § Code 2002 of Repl.Vol.), 3-103 the Commercial Law Article, cmt. 5 (explaining ordinary of banks); applies § also of see 4-103 the Commercial Law Article, 4 cmt. (explaining that “banks come under the general obligations good the use faith the exercise of care”). ordinary The Commercial Code “ordinary defines “1) care” as observance of reasonable commercial stan 2) dards, which prevail person area which the is 3) located, with respect person business which the General, engaged.” Security 81, State v. American 409 Md. (2009) 3-103(a)(7) § A.2d (quoting Article). A Commercial Law customer bring bank suit against bank for a violation this duty 155-56, Taylor, care. 269 Md. at 304 A.2d 841-42. *12 Where the a plaintiff alleges negligence by profes sional, expert is testimony generally necessary to establish the requisite professional. standard of care owed the by Rodri Clarke, 39, (2007). guez 71, 736, v. 400 Md. 926 A.2d 755 This professional because standards often the “beyond are ken of average the layman,” such that the expert’s testimony is the necessary elucidate relevant standard the trier of Health, 419, 432, 778, fact. v. Dept. Bean 406 Md. 959 A.2d of (2008) Zeitler, (quoting 444, 463, 786 v. 126 Md.App. CIGNA 248, (1999)); (allow 730 A.2d 259-60 see Md. also Rule 5-702 ing the admission if testimony of it will the trier assist of fact to understand the evidence to determine a fact in or
29 issue). “the alleged negligence by professional, In of a case that presumption the overcoming the burden of bears plaintiff Crothers, v. 264 Md. care were used.” Crockett due skill and (1972). 612, presents If 222, 224, 614 the plaintiff 285 A.2d rule, evidence, may general power in its the trial “court such evidence, not that there is sufficiency of pass upon Rodriguez, 400 go [trier fact].” sufficient evidence Steele, 166 71, at v. Md. (quoting A.2d 755 Fink Md. 926 (1934)). 361, 49, 354, 52 171 A. not, however, estab require expert
We do
involving
case
every
standard of
lish
defendant’s
by
contrary,
To
we
alleged negligence
professional.
if
alleged negligence,
prov
that sometimes the
explained
have
en,
could
that the trier
fact
obviously
would be so
shown
Crockett, 264
expert testimony.
Md. at
recognize it without
224,
example,
pert testimony is to establish of care in the standard involving alleged cases such a bank. two cases, however, the has concluded Special Appeals Court v. was not In Saxon Harri- necessary. son, 228, 287-91, (2009), 186 A.2d Md.App. 876-79 on paid defendant bank a check had been indorsed with only part payee’s only name. This not violated the the back the check also violated the instructions on but Saxon, own training guidelines.10 Md.App. bank’s internal Bank, acknowledge present 10. We that the in the training guidelines, bank in v. violated its own internal like the Saxon *13 30 290,
at
Saxon and Ellis stand for the proposition testi- mony may unnecessary sometimes be trier of fact Harrison, 228, 290, 841, (2009). Md.App. 186 973 A.2d 877 Petitioner alleged has that the Bank obtain failed to identification from Holbrook account, and Schultz when Holbrook was added to Schultz's which training would have violated the Bank’s documents not, however, submitted into evidence. We do consider determina- First, proven tive. even if Petitioner had that the Bank violated its guidelines, internal that would not satisfied burden Petitioner’s establishing applicable standard of care. The Bank’s internal guidelines alone do not establish reasonable commercial standards banking industry in the bank's because a own standards be more Service, industry Inventory or less strict than the See Locator standard. Dunn, (Tenn.Ct.App.1989) (explaining Inc. v. 776 S.W.2d although obey procedures may a bank’s failure to its own be indicative negligence, procedures equat- those "cannot in and of themselves be standards’’); Services, ed with reasonable commercial River Parish Inc. (ex- Refineries, Goodhope (La.Ct.App.1984)
v. 457 So.2d plaining compliance that a bank’s with reasonable commercial stan- showing simply by compliance be dards cannot shown with bank’s Second, procedures). only its own internal Saxon not bank in training guidelines, ignored violated its but also instructions on the expecta- back of a customer's check. These instructions an established Saxon, part training tion on the but the customer in documents in present case did not.
31 cases, In those customers. duty to its bank’s appreciate obviously negligent act that was so an committed each bank had that the bank recognize fact could the trier of that expert the aid of without plaintiffs to the violated its however, not, for the stand and Ellis do Saxon testimony.11 in unnecessary always testimony expert that proposition to the by Quite a bank. involving alleged cases may be that “there and Ellis stated Saxon contrary, both testimony relative expert necessitate situations in with custom- dealings of a bank required standard of “ordinarily needed to testimony might be expert ers” and that in the care used banks of reasonable the standard prove Saxon, 186 with its customers.” dealings in its community Ellis, 45 288-89, (quoting 876-77 973 A.2d at at Md.App. 1092-93). 163-64, 411 A.2d at at Md.App. necessary to testimony may be expert
The conclusion
our
of care is
consistent with
also
establish a bank’s
funds
In
the defendant bank transferred
Taylor,
past cases.
at the third
party
party’s
account to a third
from a customer’s
151-54,
A.2d at 839-41. The bank
158,
In other
plaintiffs have offered expert
to
testimony
establish a bank’s standard of care.
did not explain
We
whether expert testimony was necessary to establish a bank’s
did,
standard of care in Jacques.
however,
We
note that the
plaintiff had produced “expert testimony from which the jury
could have determined an applicable standard.”
Jacques, 307
544,
Md. at
515 A.2d at
In Vinogradova
Suntrust,
v.
162
495,
Md.App.
(2005),
875
222
A.2d
the Court of Special Ap-
peals specifically focused on
plaintiffs
failure to establish
the bank’s standard
In
case,
of care.
that
the court concluded
that the plaintiff had failed to prove her case because her
expert on the bank’s standard of care failed to set forth
“concrete evidence ... as to what specific industry standards
violated,
of care were
they
violated,
how
were
and how their
violation caused
Vinogradova
Ms.
Vinogradova,
harm.”
162
507,
at
Md.App.
there
negligent
was “no doubt” the bank was
when it transferred funds
determining
without
Taylor,
whether the transfer was authorized.
158,
Md. at
The Bank that argues care, establish the Bank’s standard of while Petitioner con- seeking tends that “a bank to assist a customer to add a name to a an checking experience universally account shared.” Accordingly, argues, was nec- essary to Bank’s care explain jury. standard of We disagree with Petitioner’s contention for number of reasons. First, say we with that any certainty cannot most people have added someone’s name to their bank accounts. Petitioner supports this by asserting “[l]ay people contention are today’s frequently upon society prove called their identifi- cations.” disagree experiences provide We these a suffi- cient basis to conclude what the trier fact would know because experiences may vary widely such from the reason- Furthermore, able in the banking industry.16 standards itself, relevant activity in this case was the bank not a bank people customer. Even if most added a have name to their accounts, bank people certainly most have not acted as a bank liability. Bank's Bank would have liable if it been had failed ordinary exercise when it added Holbrook’s name to Schultz’s account, thereby allowing Holbrook to unauthorized make withdrawals however, opinion explains, from the account. As this Petitioner never care, ordinary applicable established the standard of so he could not proven have Bank failed to exercise care. compares adding identity 16. Petitioner a name to bank one’s account to during stops. many airports may verification at or traffic There be why might verify differently airport reasons banks identification than security example, agents police may ordinarily or officers. For banks request adding on a random when identification basis a name to accounts, checking to save the customers’ cost and time of for identifi- may ordinarily request cation each Banks time. identification they recognize by sight, way good when the account as a holder to build will requesting with their Banks found that customers. ensuring identity identification is an ineffective method of of their typically may requests. customers and therefore not bother with such do, fact, request perhaps ordinarily Or banks identification from every customer adds a name to an These who account. uncertainties *17 exactly expert industry why banking necessary are in the an explain banking industry standards. That bank account. a name to a customer’s adding officer doors, sight out of the behind closed may occur process procedures. unknown customer, numerous may involve testi- plaintiff produce must process, To explain from a bank’s the process from familiar with mony someone provide failed to evidence Petitioner also perspective. specifi- banking prevail standards reasonable commercial Bank, as re- area of the geographical in the relevant cally Finally, banking care standard.17 by quired Internet and other in the era of the practices changing are may not be procedures Bank banking practices.18 electronic also just years ago, a few which today they as were same the trier necessary explain that an be means to a customer.19 duty of fact what a bank owes Having concluded Schultz, we also the Bank owed to
to establish the Peti not have submitted conclude that the trial court should carried the jury. tioner’s claim "ordinary component Explaining geographic of the identical 17. ("U.C.C.”), Code Professors care” standard in the Uniform Commercial might York have to note that bank in New "[a] White and Summers & differently in Evansville.” James J. White behave from a bank 2000); Summers, (5th 16-3(g), § also at 577 ed. see Robert S. U.C.C. care”). 3-103(a)(9) (2007) “ordinary (defining § U.C.C. technology noted the effect of 18. Professors White and Summers have banking treatise on the U.C.C.: on standards in their process commonplace payor checks electron- It is now banks to randomly verify ically intervention. Some banks and without human checks, banks signatures on some but most to see whether there are Even when only above a certain dollar amount. examine checks compari- may may not be an actual each check is examined there or signature signature with a on file. son of the on the check Summers, 16-3(g), § at 578. J. White & Robert S. U.C.C. James acknowl- Maryland Commercial Code 19. The comments to the Uniform noting banking procedures, "the techni- edge complicated nature collections, complexity the enormous number of cal of the field of bank banks, certainty from that there will be variations items handled bank, certainty changing day's work each the normal in each possibility developing improved methods of col- and the conditions (1975, § Repl.Vol.), 4- speed process.” lection to Md.Code Article, 103 of the Commercial Law cmt. *18 burden of that establishing the Bank had not satisfied the duty of care in ordinary regard handling to its of Schultz’s so, account. As explained, completely we have he failed to do otherwise, providing testimony, no or establishing the extent of that as it to in duty applied the Bank this case. in Petitioner’s own assertions this case show this failure. He challenge did not the court’s jury instruction to the ordinary care the applicable standard of care or that it prove was Petitioner’s burden to the Bank failed to exercise care. In his ordinary Court, brief submitted to this “presented Petitioner concedes that he no as to the employed standard of care the Bank to add a effect, signatory to an account.” In Petitioner did not present facts, the necessary case, consistent theory with his own showing how the Bank failed to comply applicable with the standard, industry as he never established that standard. bank, negligence alleged When a against as other cases alleged context, in a professional expert testimo- isny ordinarily necessary to applicable establish the testimony of care. Such is not necessary when the bank’s alleged if negligence, proven, obviously so deviated from the applicable standard of the trier of fact could appreci- ate the deviation without an expert’s assistance. The alleged however, in this involved banking internal procedures that the trier of fact could not expected be appreciate. Petitioner should provided expert testimony to explain jury to the what ordinarily banks do to their protect customers from imposters adding when a name to the custom- account, er’s jury so that the could then decide whether the Bank had acted accordance with duty ordinary care. Instead, Petitioner provided on this issue at all. care, Without expert testimony explain duty of ordinary the jury could not know whether to hold Bank accountable failing to protect its customer’s account. Petitioner there- fore provide any competent failed to of the duty evidence owed him, claim, a element of a negligence and the trial court should not have submitted claim jury. agree Special Appeals with the Court of that the trial We judgment. should have the Bank’s motion for granted court Breach Contract question presented The third this case concerns duty regard bank’s contractual care in implied account adding verifying a name to a customer’s bank signatories. identities of the have been asked to deter We mine if has the trier of fact consider whether bank if plaintiff provided breached this has no evidence *19 either the terms of the con establishing specific underlying tract or which the bank must adhere. We trier may shall hold that the of fact consider whether a bank if duty ordinary has breached the contractual of care implied evidence that a contract any competent there is existed be and the defendant bank. The trier of fact plaintiff tween not, however, consider such a may plaintiff claim unless extent provides expert testimony establishing the of the obli of on In gation duty ordinary imposed that the care the bank. presented legally Petitioner sufficient evidence to establish that there was a contract between Schultz and the Bank, provide necessary expert testimony. but he did not explained relationship
We have be “[t]he tween a bank and its customer is contractual.” Lema v. Bank (2003). America, 625, 638, 504, 511 375 Md. 826 A.2d of contract a bank and its customers is derived by between implication banking relationship, parties from the unless the modify relationship.20 University Wolfe, Nat’l Bank v. may frequently “implied” We have that a stated contract be between customers, a Bank and its but we have never stated whether that contract, however, implied implied contract is in fact or in law. Such a contracts, Implied-in-law clearly implied in fact. often referred to as quasi-contracts, parties apparent "are not based intention of the on the performances question, they promises,” to undertake the nor are but "obligations by justice.” instead created law for reasons of Caro- are Dashiell, 83, 95, 600, (2000) County line (footnote omitted). 358 747 A.2d 606 v. Md. suggested implied None of our cases have that the quasi-contract contract between a bank and its customers is based on a Instead, theory. they explained implied that the contract can be
38
(1977)
570,
514-15,
A.2d
571
numerous
(citing
279 Md.
cases).
bank
relationship,
As a result of this contractual
only
care not
may
duty
ordinary
customers
enforce the
Gillen,
tort,
of contract.
through
but also
an action for breach
101-02,
The Commercial Code
Petitioner has
that the Bank
this case
contract with Schultz when it violated the
he
the Bank owed to
of this
support
claims
Schultz.
claim,
signature
card for Schultz’s
provided
account,
account,
monthly bank statements
from the
not, however, provide
the account. He did
checks drawn from
testimony establishing
other documents or
the terms of
any
alleged
contract between the Bank and Schultz. Nonethe-
less, he
sufficient
argues
presented
he
evidence
jury that it could have found the existence of a contract with
alleged
Schultz and that the Bank
have breached that
*20
of Special Appeals disagreed, concluding
contract.
Court
“key
that Petitioner
to introduce into evidence
docu-
failed
ments” without which “it cannot be determined what were the
similarly argues
the contract.” The Bank
specific terms of
Signature
a contract was a Personal
only
that “the
evidence of
Card,” and that Petitioner “did not introduce into evidence
surrounding
relationship
from the facts
between the customer and
See,
156,
("¡T]he
Taylor,
e.g.,
bank.
On
with
Special Appeals
both the Court of
and the Bank. There is no
dispute
respect
that Schultz was a customer of the Bank with
checking
account at
issue
case. Petitioner
evidence,
Bank,
objection
submitted into
with no
from the
copy
signature
signed
card that Schultz apparently
originally
when he
his account with the Bank on
opened
11, 2000.
September
The bank statements that Petitioner
evidence,
Bank,
objection
submitted into
with no
from the
deposits
reflected
and withdrawals from the account that
Bank,
apparently
Schultz
had with the
and the checks Peti-
evidence,
objection
tioner submitted into
with no
from the
Bank,
from,
apparently
by,
were
drawn
and honored
the Bank.
The Bank has not denied that Schultz was one of its custom-
ers, and,
testified,
contrary,
one of the
managers
Bank’s
through
deposition,
his
to an interaction with Schultz that was
consistent with that of a bank and its
manager
customer. The
specifically referred to Schultz as “an
customer.”
existing
Moreover,
repeatedly explained
we have
there is an
implied
relationship
contractual
between a bank and
cus-
its
Bank,
tomers. See
Nat’l
University
The Bank
that Petitioner’s breach of contract claim
should not have been submitted to the jury because Petitioner
“fell
of proving
or,
short
what the
terms
the contract are
words,
other
what the Bank’s obligations under the contract
are, as required by Maryland law.”
disagree.
We
We have
stated that “the [Commercial
codifies the underlying
Code]
implied
contract
between the bank and its customer that the
bank will charge any item which is ‘otherwise properly pay-
able’ against
depositor’s
only
account
on the order of the
depositor or of
someone authorized
him.”
Taylor, Md.
*21
III.
Conclusion a bank frequently complex business. When Banking care, ordinarily it ordinary duty violated its allegedly has trier testimony so that the present expert will be frequently complex scope understand the of fact can actions, if alleged cases where the bank’s duty. There will be obviously violate the would so proven,
41 that will unnecessary. be In cases such as this, however, alleged duty where the violation the obvious, is not in assist the trier of fact its making determination. and,
did the provide necessary expert testimony, not accord- court ingly, the trial should have either of submitted to the jury. Petitioner’s claims OF THE
JUDGMENT COURT OF SPECIAL APPEALS BE PAID BY AFFIRMED. COSTS TO PETITIONER. ADKINS, J., opinion BELL, C.J., files in dissenting which MURPHY, J., join. and ADKINS, BELL, C.J.,
Dissenting Opinion by Judge, which MURPHY, J., and Join.
I
dissent
respectfully
majority’s holding
from the
that ex-
pert testimony
necessary to establish Bank of America’s
In my
standard of care
this case.
opinion,
alleged
negligence in this case was
within a layperson’s
well
under-
standing,
properly
evaluated
the trial jury.
I agree
“professional
‘beyond
standards are often
”
average
cases,
ken of
layman,’
and that in
some
testimony is needed to “elucidate the relevant standard for the
28,
trier of
Majority
fact.” See
Op., supra,
We previously contexts, in other an obvious part error on of a professional practitioner would not require expert testimony to a establish standard of care. Clarke, 551, Central Company 542, Cab v. 259 Md. 270 A.2d (1970), 667 for example, attorney an notify failed to his client; client that he had representation terminated ultimately omission resulted a default judgment against analogized client. We that case to “cases involving medical malpractice tooth,” in which a pulled dentist the wrong or Id. wrong (citing limb. physician amputated
where a (1930)). Cohen, A. 124 v. 158 Md. Because McClees a violation attorney’s behavior Clarke was “clear of [his] have ruled as [against ... the trial court should him] law.” Id. matter of challenged activity was the addition of
In this
of a
by way
signa-
to the decedent’s bank account
signatory
suggests
presented
majority
ture card
to the bank.
*23
doors, out of
“may
sight
this
occur behind closed
the
process
customer,
may
of
numerous unknown proce-
the
and
involve
35, 990
at 1090.
Majority
supra, at
A.2d
Such
Op.,
dures.”
majority says,
banking
the
“internal
activity,
proce-
involves
the
fact
not be
to
expected
appreci-
dures that
trier of
could
ate.”
For if a bank allowed unknown to walk in based on her oral attestation that only and withdraw cash holder, that be a she the named account would case of otherwise, persons If the were de- negligence. obvious rule money in that bank would have assurance as to the positing simple precautions, of their funds. Without such safety if an any account holder would have little reason maintain account. ordinary
The obvious nature breach standard in this example of care demonstrates securi- ty always proven by measures need not be experience A layperson’s everyday as to the standard of care. bank opening with common commercial transactions—from using making purchases accounts to credit card automated an everyday understanding machines—informs of what teller precautions safeguarding a financial institution should use an requirement an holder’s assets. Imposing account in a transac- prove negligence commonplace witness to tion a barrier to a who has been imposes litigant financial injured, duty not be The care lightly. and should done falls the everyday Bank of America to within by owed Schultz Bank of category. and common sense Whatever experience been, might America’s standard care have it professional person’s could not have been less than a logically reasonable to take care in life. day-to-day action, of care in a determining standard the risk interest must be sacrificed avoid is “[t]he al., Harper, balanced Fowler V. et against danger.” (3d 16.9, § Torts Harper, Gray James And On at 524 Ed. 2007). jury could have concluded that a reasonable bank carefully adding signato- would examine before identification account, in its ry protect to an order to assets of borrow- A certainly ers. could determine that a bank violated jury if it adding signatory reasonable allowed to an account based on a that the had reason document bank signed to know account holder.
Again treatise, I torts look seminal James Harper, Gray on Torts which authors opine: general proposition As a it not essential is to a case party’s that it or what prove opponent otherwise show its should in the It enough done circumstances. show what did and opponent what the circumstances were. It is *24 whether, jury then for the to in light determine the of their affairs, experience common he they human find failed to act as a reasonable person would have acted.... In this jury sense the need or agree not fix on a standard of regarding taken, conduct to be precautions only but need find that the conduct of the falls party any short of that they agree would on as reasonable.1 (footnote omitted). § Id. 17.1 600-02 at This treatise also explains doctor, “[ejxcept malpractice that cases a (against like) dentist, or the general there is no rule or policy requiring expert testimony care, as to the standard and this is true even the increasingly broad area wherein expert opinion (footnote omitted). § will be Id. received.” 17.1 at 605 They provide examples also extensive of cases where was ah, proven expert testimony. Harper, Harper, without 3 Fowler V. et 16.9, (3d 2007). Gray § James And On 600-06 Torts at Ed. the card argued signature present- In that Schultz bank, the in the exercise the bank was a document that ed to have known was a Schultz forgery. care would signa- that the decedent’s testify called an witness fact was disputed. on the was fabricated. This ture card signa- the the weighed have about jury card, and along signature its own examination of the ture with that forgery was obvious sufficiently determined that the forgery. have the card as a recognized Bank of America should Jr., Evidence Handbook Joseph Murphy, Maryland F. See (3d (“The 1104(A), trier § at Ed. 1999 2008 Cum.Supp.) & (judge jury) permitted compare an authenticat- of fact or writing.”). Although the bank writing disputed ed with the time not have the benefit would transaction, bank testified he checked manager Holbrook, and so he could have the identifications of Schultz his document compared signature Schultz’s on identification Hol- signature on the card used to add signature (cid:127)with name to bank account. brook’s Schultz’s account Additionally, jury could also taken into signature printed personal computer card was on document, rather than bank the decedent’s generated electronically printed while Hol- Security Social Number handwritten, that the Security brook’s Social Number was transposed. discrepancies All of these signatures two were inform of both the card jury’s signature could evaluation allowing itself and Bank of America’s level of to the account. Holbrook be added evidence, called jury being considering security protocols for an international wire upon evaluate accounts, an or for operating “sweep” transfer mechanisms on method to maximize the interest customers earn electronic *25 Rather, trans- money. reviewing commonplace their it was involving procedures. appropri- action common sense It was with, rely experiences for the on its members’ jury ate about, commonplace banking expectations transactions. verdict, therefore, was a declaration that Bank of jury of care America failed to adhere to even the charged person. to a reasonable This standard is defini- tion the minimum that the bank could have and no employed, hypothetically great- was needed to define a professional jury er standard of care. The determined that standard, Bank of this and the negligent America was under jury verdict I judgment should stand. would reverse the the Court of Special Appeals.
Chief BELL and Judge Judge MURPHY authorize me to they join dissenting opinion. state that notes Schultz’s is next security signature Holbrook’s social number and Holbrook's next security aspects signature Schultz’s social number. These card testimony do affect our conclusion that applicable establish the standard of care. Petitioner also asserts that "signature printed personal computer,” card was on a but we see supporting no evidence in the record this assertion. provide 6. At no time at trial did Petitioner offer to regarding the Bank’s standard of care. The issue of only judgment arose when the Bank moved for after the close of its case.