Spengler v. Sears, Roebuck & Co.

878 A.2d 628

163 Md. App. 220

ARTHUR H. SPENGLER, JR. v. SEARS, ROEBUCK & COMPANY.

No. 798, September Term, 2004.

Court of Special Appeals of Maryland.

Filed: July 11, 2005.

B. Robins, IV, Salisbury, for appellant.

Matthew T. Angotti, Baltimore (Jona-than D. Fink, Buchalter, Nemer, Fields & Younger, P.C., on the brief), Los Angeles, CA, for appellee.

Panel: JAMES R. EYLER, SHERER, MEREDITH, JJ.

SHARER, J.

Arthur J. Spengler, Jr., appellant, declined to pay certain credit card debt, which he maintained he did not owe, to appellee, Sears, Roebuck & Company. As a result, Sears reported Spengler's delinquencies to various credit rating agencies, causing impairment to his credit standing.

Spengler filed a four-count complaint in the Circuit Court for Wicomico County, alleging: (1) that he was entitled to a declaratory judgment relieving him of the debt; (2) breach of contract; (3) defamation; and (4) interference with business relations. The trial court granted Sears' motion for judgment as to the breach of contract and defamation counts; Spengler voluntarily withdrew the count for declaratory judgment; and the case went to the jury on the single count of interference with business relations. Favoring appellant, the jury awarded $145,000 in damages. Sears filed a timely motion for judgment notwithstanding the verdict, which, following a hearing, the court granted. Aggrieved at the loss of his favorable verdict, Spengler has noted this appeal.

Spengler presents for our consideration seven questions, which, as distilled and recast are:¹

I. Whether the circuit court erred in granting Sears' motion for judgment on the breach of contract and defamation counts.

II. Whether the circuit court erred in granting Sears' motion for judgment NOV on the interference with business relations count.

III. Whether the circuit court erred in granting Sears' motion for judgment on the claim for punitive damages.

IV. Whether the circuit court abused its discretion in excluding evidence of other lawsuits filed by Sears.

V. Whether the circuit court erred in denying Spengler's request for a spoliation instruction.

Our answer to each of the questions is "No"; thus, we shall affirm.²

FACTUAL BACKGROUND

In 1989, Spengler opened a credit card account with Sears. He added his wife to the account as an "authorized user" in 1996. In 1997, in what Spengler asserts was an effort to terminate his account, he paid the account balance and destroyed the account credit card. The last date of purchase on the card was July 17, 1997. In a lapse that would become central to this litigation, Spengler never notified Sears that he wished to close the account — he merely destroyed the card — nor did he ever advise Sears that his wife was no longer an authorized user.

The User Agreements

The relationship between Spengler and Sears involved three account user agreements, the first in 1996.³ That agreement provides, in pertinent part:

CHANGE IN TERMS — CANCELLATION. As permitted by law, Sears has the right to change any term or part of this agreement . . . . Sears will send me written notice of any such changes when required by law. Sears also has the right to cancel this agreement as it relates to future purchases. I agree to return all credit cards to Sears upon notice of such cancellation.

* * *

CHANGE OF RESIDENCE: If I change my residence, I will inform Sears.

* * *

AUTHORIZED BUYERS: This agreement controls all charges made on [my] account by me or any other person I authorize to use the account. If I claim that charges are unauthorized, I agree to cooperate with Sears in its reasonable investigation of my claim.

* * *

CREDIT INVESTIGATION AND DISCLOSURE: Sears has the right to. . . report the way I pay the account to credit bureaus and other interested parties[.]

* * *

If you fail to pay the amount [Sears] think[s] you owe, [Sears] may report you as delinquent. However, if [Sears'] explanation does not satisfy you and you write to [Sears] within ten days telling [Sears] that you still refuse to pay, [Sears] must tell anyone [it] report[s] you to that you have a question about your bill[.]

(Alterations added.)

In 1997, the account agreement was revised, providing in relevant part:

BASIC AGREEMENT

* * *

ACCEPTANCE AND LIABILITY. I am responsible for all amounts owed on my account. I agree to pay all amounts owed on my account according to the terms of this agreement. This agreement is effective when any account holder or authorized user either uses the account, activates the card, or takes any other action which indicates acceptance of the account or card.

* * *

AUTHORIZED BUYERS. This agreement controls all charges made on the account by me or any person I authorize to use my account. If I believe or claim that any charges are unauthorized, I agree to notify [Sears] immediately . . . Unauthorized use does not include use by a person to whom I have given the credit card or authority to use the account and I will be liable for all use by such person. To terminate this authority, I must notify [Sears]. I will attempt to retrieve the credit card from the previously authorized user and return it to [Sears] at the address mentioned above along with a letter explaining my action.

* * *

PHONE CALLS, CREDIT INVESTIGATION, REPORTING & INFORMATION SHARING

* * *

CREDIT INVESTIGATION AND DISCLOSURE OF INFORMATION. . . . If I fail to fulfill the terms of this agreement, a negative report reflecting on my credit record may be submitted to a credit reporting agency. I may notify [Sears] by telephone. . . if I believe [Sears] has reported inaccurate information regarding my account to a credit reporting agency.

* * *

FUTURE CHANGES

CHANGE OF TERMS — CANCELLATION. As permitted by law, [Sears] has the right to change any term or part of this agreement, including . . . . [Sears] will send me written notice of any such changes when required by law. [Sears] also has the right to cancel this agreement as it relates to future purchases or other charges as any time. I agree to return all credit cards to [Sears] upon notice of such cancellation.

CHANGE OF RESIDENCE. If I change my residence, I will inform [Sears].

(Alterations added.)

Finally, the account was again revised in July 1999:

Section 2. LOANS AND LIABILITY

* * *

(b) Liability. You agree to pay all amounts owed on the Account whether incurred by you, any other account holder, anyone you allow to use the Account or any person from which you receive a benefit. Every person who uses the Card or Account is liable for the use of the Card and Account according to the terms of this Agreement. Court decrees for divorce or separation do not affect liability for any use of the Card of Account.

* * *

Section 4. AUTHORIZED AND UNAUTHORIZED USE.

(a) Authorized Users. You may ask that an individual be added, deleted or changed as an authorized user ("Authorized User") by calling . . . or writing us . . . . You understand we will issue a Card to each Authorized User. If you terminate this authority, you will retrieve the Card from the Authorized User and destroy the Card. Any Authorized User may use the Account, and may take any action on the Account that you could take, either on behalf of yourself or the Authorized User. You understand that . . . (ii) you are responsible for and will pay all charges made by the Authorized User . . . AND (v) we may, without any liability, accept and act upon the directions and requests of any Authorized User[.]

* * *

Section 23. CHANGE OF TERMS. We may, at any time and subject to applicable law:

* * *

Change any term or condition of this Agreement relating to your account . . .

* * *

We will send you a written notice of any such change(s) or addition(s) as required by law.

Section 24. TERMINATION. You may terminate this Account at any time by paying all sums due under this Agreement and destroying all cards issued on the Account. We may, at any time without prior notice to you, terminate this Agreement[.]

* * *

Section 25. YOUR NOTICE OF CHANGES. You will promptly inform us if you change your name, residence or place of employment . . . . We may continue to send Account Statements and other notices to the last address we maintained on the Account until you notify us of any change.

(Alterations added.)

A significant distinction among the three agreements is that neither the 1996 nor 1997 agreement contains a provision detailing what an account user must do to terminate an account. The 1999 revision is more precise in that regard.

In January 2001, Spengler and his wife separated, and Spengler moved out of the marital residence. He did not provide Sears with his new address.

A few months later, in approximately March 2001, Sears sent out a bulk mail "campaign mailer" to its account holders, one of which was addressed to the Spengler household where, of course, appellant no longer resided. Because he had not advised Sears of a new address, Spengler did not receive the mailing. The face of the mailer contained the following words: "Congratulations! You have been selected to receive an upgrade to the new Sears Gold MasterCard — offered only to valued customers." Additionally, the mailer provided: "Your upgrade is automatic — there's nothing you need to do. Your Sears Gold MasterCard automatically replaces your Sears Card . . . [I]f you choose not to be upgraded to the Sears Gold MasterCard, you must call us at the number below." On the reverse side of the mailer was the advice: "Sears Gold MasterCard. It automatically replaces your Sears Card."

Spengler's wife received the mailer and activated the new Sears Gold MasterCard. Subsequently, she transferred a balance of $4,446.50 from another credit card.⁴ The Sears Gold MasterCard account statement of April 20, 2001, reflects an outstanding balance due of $5,638.43. In some manner, not abundantly clear from the record, Spengler became aware of that statement.

Having learned of the balance, Spengler promptly contacted Sears and did...