Marrow v. Bank of Am., N.A.

TODD MARROW v. BANK OF AMERICA, N.A.

No. 2491

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

June 25, 2021

Circuit Court for Baltimore City

Case No. 24-C-18-006986

UNREPORTED

Leahy, Shaw Geter, Zarnoch, Robert A. (Senior Judge, Specially Assigned), JJ.

Opinion by Leahy, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Todd Marrow, appellant, appeals from an order of the Circuit Court for Baltimore City granting summary judgment in favor of Bank of America, N.A. ("Bank of America"), appellee. On December 27, 2018, Mr. Marrow filed a complaint against Bank of America, Wendell Alston, and Deanna M. Harrod-Contee concerning allegedly unauthorized or fraudulent transactions drawn on his accounts at Bank of America between 2012 and 2016 while he was incarcerated. The complaint included one count of breach of contract and one count of defamation against Bank of America; two counts of wrongful taking and one count of theft against Mr. Alston; and one count of constructive fraud and one count of theft against Ms. Harrod-Contee. Bank of America filed an answer and cross-claims against Mr. Alston and Ms. Harrod-Contee.¹ On December 2, 2019, Bank of America filed a motion for summary judgment as to all claims against it and asserted that Mr. Marrow's claims against the bank were "barred by the governing contract of deposit and by the applicable statutes as a matter of law."

A hearing on the motion for summary judgment was held on January 22, 2020. In a written order filed on the same day, the court granted summary judgment in favor of Bank of America on all claims against it. On February 6, 2020, Mr. Marrow filed a notice of appeal from that order, while Mr. Marrow's claims against Ms. Harrod-Contee and Mr. Alston and Bank of America's cross-claims remained unresolved.

After a bench trial on February 19, 2020, the court ruled in favor of the remaining defendants. On February 27, 2020, the court entered an order that provided, in relevant part:

Upon consideration of the evidence presented during the trial on February 19, 2020 and the arguments of the parties, it is this 19^th day of February 2020, by the Circuit Court for Baltimore City, hereby

FOUND that the Plaintiff is unable to establish that Defendant Deanna Harrod-Contee made unauthorized withdrawals from his Bank of America bank account, and it is further

FOUND that the Plaintiff is unable to establish that Defendant Wendall Alston made unauthorized withdrawals from his Bank of America bank account, and it is further

ORDERED that judgment be entered in favor of the Defendants and against the Plaintiff[.]

ISSUES PRESENTED

Mr. Marrow presents the following issues for our review:

"1. Whether the [c]ourt was correct to grant the Motion for Summary Judgment?

2. Whether the [C]ourt erred by failing to consider the Anti-Preemption provision of the statute [Electronic Fund Transaction Act, 15 U.S.C. § 1693(q)] in granting the Motion for Summary Judgment based on preemption?"

Before addressing these issues, we must first consider whether there was a final judgment from which Mr. Marrow was entitled to appeal.

APPEALABILITY AND FINAL JUDGMENT

"Generally, parties may appeal only upon the entry of a final judgment." McLaughlin v. Ward, 240 Md. App. 76, 82 (2019); see also Maryland Code (1974, 2020 Repl. Vol.), Courts and Judicial Proceedings Article ("CJ"), § 12-301. "One of the necessary elements of a final judgment is that the order must adjudicate or complete theadjudication of all claims against all parties." Id. (collecting cases). In Estep v. Georgetown Leather Design, the Court of Appeals held that if the court has not adjudicated a defendant's cross-claims or third-party claims, the judgment is not final, and is not appealable, even if those claims have become "groundless" because of the entry of judgment against the plaintiff. 320 Md. 277, 286 (1990). Because the absence of a final judgment may deprive a court of appellate jurisdiction, we can raise the issue of finality sua sponte. Waterkeeper All., Inc. v. Md. Dep't of Agric., 439 Md. 262, 276 n.11 (2014) (citing Stachowski v. State, 416 Md. 276, 285 (2010)).

The requirement that a final judgment must dispose of all claims against all parties is included in Maryland Rule 2-602(a), which provides:

(a) Generally. Except as provided in section (b) of this Rule, an order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action (whether raised by original claim, counterclaim, cross-claim, or third-party claim), or that adjudicates less than an entire claim, or that adjudicates the rights and liabilities of fewer than all the parties to the action:

(1) is not a final judgment;

(2) does not terminate the action as to any of the claims or any of the parties; and

(3) is subject to revision at any time before the entry of a judgment that adjudicates all of the claims by and against all of the parties.

There are narrow exceptions to the final judgment rule. Maryland Rule 2-602(b) permits a court, in cases involving multiple parties, to enter a final judgment as to only one party. Under that Rule, "[i]f the court expressly determines in a written order that there is no just reason for delay, it may direct in the order the entry of a final judgment . . . as to one or more but fewer than all of the claims or parties." Md. Rule 2-602(b). On appeal, we may enter a final judgment on our own initiative if we determine that "the order fromwhich the appeal is taken was not a final judgment when the notice of appeal was filed but that the lower court had discretion to direct the entry of a final judgment pursuant to Rule 2-602(b)[.]" Md. Rule 8-602(g)(1).

We are cognizant that the power to enter a final judgment on our own initiative must be exercised sparingly. Waterkeeper, 439 Md. at 287-88. "Courts that exercise discretion to certify a non-final judgment for appeal 'should balance the exigencies of the case before them with the policy against piecemeal appeals and then only allow a separate appeal in the very infrequent harsh case.'" Id. (quoting Diener Enters. v. Miller, 266 Md. 551, 556 (1972)).

In the instant case, although the circuit court granted summary judgment in favor of Bank of America, and subsequently entered judgment in favor of Ms. Harrod-Contee and Mr. Alston, the record does not disclose that the court ruled on the cross-claims filed by Bank of America against Ms. Harrod-Contee and Mr. Alston. As a result, there is not yet a final, appealable judgment in this case. Had any of the parties requested the entry of judgment under Rule 2-602(b), the circuit court could reasonably have concluded that it had no just reason to delay the entry of a final judgment as to the claim against Bank of America alone.

We addressed this precise issue in Zilichikhis v. Montgomery County, 223 Md. App. 158, 171-72, cert. denied, 444 Md. 641 (2015). In that case, two of the defendants, Penn Parking and Colossal Contractors, filed cross-claims against various other defendants. Id. at 166. Thereafter, the court entered summary judgment in favor of the defendants thereby eliminating any grounds for the cross-claims that had been asserted. Id. at 171. The trialcourt did not, however, "enter an appealable final judgment, because it never formally adjudicated the cross-claims[.]" Id. at 173. We concluded that "had any of the parties requested the entry of judgment under Rule 2-602(b), the circuit court could reasonably have concluded that it had no just reason to delay the entry of a final judgment as to the [plaintiffs] alone - i.e., that it had no just reason to delay the entry of final judgment 'as to one or more but fewer than all of the . . . parties.' Md. Rule 2-602(b)(1)." Id.

In reaching that conclusion, we recognized that it would have been difficult for the parties who had filed the cross-claims to resolve those claims without prejudicing their rights. We explained that if the cross-plaintiffs attempted to resolve the cross-claims by dismissing them with prejudice, "they risked losing the ability to reassert the cross-claims against one another" if the grant of summary judgment was reversed on appeal. Id. We also noted:

[I]f Penn Parking and Colossal Contractors had attempted to resolve the cross-claims by dismissing them without prejudice, with the express or implicit understanding that they could reassert the cross-claims if an appellate court reversed the entry of summary judgment against the Zilichikhises, they might leave themselves open to an argument that the appeal should be dismissed because they had improperly circumvented the final judgment rule. See Miller & Smith at Quercus, LLC v. Casey PMN, LLC, 412 Md. 230, 252-53, 987 A.2d 1 (2010). Furthermore, if the cross-claims included contractual claims for indemnification of defense costs as well as damages, it might be impossible to liquidate the claims and to quantify the full extent of a party's liability until the appeal had been concluded. Indeed, if the appellate court had reversed the entry of summary judgment, it might be impossible to liquidate those cross-claims until after further proceedings had occurred on remand and on a subsequent appeal.

Id. at 173-74. We further recognized that "[i]n analogous circumstances, where the circuit court entered summary judgment against the plaintiff, but did not dispose of a third-partyclaim against a third-party defendant, the Court of Appeals exercised its discretion under Rule 8-602(e)(1)(C) to entertain the appeal." Id. at 174 (citations omitted). Consistent with Rule 8-602(e)(1)(C) and those "analogous circumstances," we entered "a final judgment as to the Zilichikhises, but not as to the unadjudicated cross-claims asserted by Colossal Contractors and Penn Parking." Id.

In the case at...