WATTS, J.
A defendant converts a plaintiff's personal property where the defendant intentionally exerts "ownership or dominion over [the plaintiff]'s personal property in denial of or inconsistent with the [plaintiff]'s right to [the plaintiff's personal] property." Nickens v. Mount Vernon Realty Grp., LLC, 429 Md. 53, 77, 54 A.3d 742, 756 (2012) (citations omitted). In Allied Inv. Corp. v. Jasen, 354 Md. 547, 562, 731 A.2d 957, 965 (1999), this Court unanimously held that a defendant does not convert a plaintiff's intangible property where the defendant does not convert a document that embodies the plaintiff's right to the plaintiff's intangible property; in other words, under Jasen, id. at 562,
In this case, we decide: (I) whether to overrule Jasen, id. at 562, 731 A.2d at 965, and hold that a defendant can convert a plaintiff's intangible property even where the defendant does not convert a document that embodies the plaintiff's right to the plaintiff's intangible property; and (II) whether, here, the plaintiffs established a claim for constructive fraud.
(I) We reaffirm Jasen, id. at 562, 731 A.2d at 965, and again hold that a defendant does not convert a plaintiff's intangible property where the defendant does not convert a document that embodies the plaintiff's right to the plaintiff's intangible property; and (II) we hold that, here, the plaintiffs failed to establish a claim for constructive fraud, as the plaintiffs failed to establish that the parties were in a confidential relationship.
In the Circuit Court for Baltimore City ("the circuit court"), Nancy Lee Kathryn Thompson ("Kathy"), Barbara Ann Clements (together, "Petitioners"), and Karen Lee Kirlin ("Karen"), "for the benefit of" Susan Witherspoon ("Susan"), Carol Lareuse ("Carol"), and the Estate of Albert E. Thompson, III ("Albert"),
Gradually, the number of parties dwindled. No lawyer entered an appearance on behalf of Albert's estate. Susan filed a motion to strike herself and Carol as parties, which the circuit court granted. Petitioners and Karen filed a stipulation of dismissal of their claims against The Manufacturers Life Insurance Company and John Hancock Life Insurance Company USA. Karen filed a stipulation of dismissal of her claims against Witherspoon and UBS. Thus, by the time of trial, Petitioners, Witherspoon, and UBS were the only parties.
At trial, the circuit court admitted evidence of the following facts, which we summarize. Albert E. Thompson, Jr. and Nancy Schenuit Thompson (together, "the Thompson Parents") were the parents of Petitioners, Karen, Susan, Carol, and Albert (together, "the Thompson Children"). The Thompson Children purchased a life insurance policy as to which they were the owners and beneficiaries, the Thompson Parents were the insureds, and Witherspoon was the broker. The Thompson Children signed the application for the life insurance policy, which listed Witherspoon's address under "Send Premium Notices To:"; from 1990 through 1998, the life insurance company mailed all policy-related documents to Witherspoon's address.
Each year from 1996 through 2003 (except for 1997), the Thompson Parents did not pay each of the Thompson Children the amount of his or her share of the annual life insurance premium. Thus, in each of those seven years, the life insurance company automatically issued a loan to the Thompson Children from the life insurance policy's cash value to cover the amount of the unpaid annual life insurance premium. The loans' principal totaled $735,000.07, and the interest on the loans totaled $165,457.12 as of October 2007; thus, in all, the life insurance company deducted $900,457.19 from the life insurance policy's cash value. The Thompson Children never consented to the loans, which could have been avoided by paying the annual life insurance premium, surrendering the life insurance policy for its cash value less any policy debt, or continuing the life insurance policy as "paid-up" life insurance, for which the premium would have been the life insurance policy's cash value less any policy debt. The life insurance company mailed to Witherspoon policy statements and policy notices that mentioned the loans. Witherspoon knew about the loans, but never told Petitioners about them.
Around the years in which the Thompson Parents did not pay each of the Thompson Children the amount of his or her share of the annual life insurance premium, the Thompson Parents provided Witherspoon and Susan (together, "the Witherspoons") with various gifts and loans. In 1995, the Thompson Parents began paying approximately $18,000 each year for the school tuition of one of the Witherspoons' children. In 1995, the Thompson Parents loaned the Witherspoons $89,000. Each year from approximately 1995 through 2003, the Thompson Parents gifted $20,000 to the Witherspoons. Sometime after 1995, the Thompson Parents began paying approximately $18,000 each year for the school tuition of another one of the Witherspoons' children. In 2004, the Thompson parents loaned the Witherspoons $585,000.
At the conclusion of the trial, a jury found Witherspoon liable for negligence, negligent misrepresentation, deceit, conversion, and constructive fraud, and found UBS liable for negligent supervision. Witherspoon and UBS separately moved for judgment notwithstanding the verdict; Witherspoon contended that Petitioners failed to establish a claim for conversion or constructive fraud. The circuit court denied the motions for judgment notwithstanding the verdict. Witherspoon and UBS appealed, and the Court of Special Appeals reversed and remanded, holding that Petitioners failed to establish claims for conversion and constructive fraud, and that the trial court made other errors that necessitated a new trial as to the claims other than conversion and constructive fraud. See UBS Fin. Servs., Inc. v. Thompson, 217 Md.App. 500, 536, 507, 94 A.3d 176, 197, 180 (2014). Petitioners filed a petition for a writ of certiorari, which this Court granted only as to the issues regarding conversion and constructive
Later, Petitioners filed in this Court a notice of dismissal of their claims against UBS; thus, Witherspoon is now the only Respondent. Nonetheless, because this case was docketed in this Court under the name Thompson v. UBS Fin. Servs., this case will retain that name for this opinion's purposes.
Petitioners contend that the circuit court was correct in denying Witherspoon's motion for judgment notwithstanding the verdict as to conversion, as Petitioners established a claim against Witherspoon for conversion of the life insurance policy. Specifically, Petitioners argue that Witherspoon converted the life insurance policy by interfering with Petitioners' right to the life insurance policy, even if Witherspoon did not convert a document that embodied Petitioners' right to the life insurance policy. More broadly, Petitioners assert that a defendant converts a plaintiff's intangible property by interfering with the plaintiff's right to the plaintiff's intangible property, even if the defendant does not convert a document that embodies the plaintiff's right to the plaintiff's intangible property. Accordingly, Petitioners urge us to overrule Jasen, 354 Md. at 562, 731 A.2d at 965, in which this Court expressly declined to adopt Restatement (Second) of Torts § 242(2) (1965) ("One who effectively prevents the exercise of intangible [property] rights of the kind customarily merged in a document is subject to a liability similar to that for conversion, even though the document is not itself converted."). Petitioners assert that Jasen, 354 Md. at 562, 731 A.2d at 965, is archaic in light of the modern increase in digital media (as opposed to paper documents).
Witherspoon responds that the circuit court erred in denying his motion for judgment notwithstanding the verdict as to conversion, as Petitioners failed to establish a claim against him for conversion of the life insurance policy. Specifically, Witherspoon contends that, because he did not convert a document that embodied Petitioners' right to the life insurance policy, he did not convert the life insurance policy. More broadly, Witherspoon argues that a defendant does not convert a plaintiff's intangible property where the defendant does not convert a document that embodies the plaintiff's right to the plaintiff's intangible property. Witherspoon asserts that Jasen, 354 Md. at 562, 731 A.2d at 965, is not archaic because, for conversion's purposes, the document that embodies the plaintiff's right to the plaintiff's intangible property can be either paper or digital.
An appellate court reviews without deference a trial court's denial of a motion for judgment notwithstanding the verdict, "while viewing the evidence and the reasonable inferences to be drawn from it in the light most favorable to the non-moving party[.]" Scapa Dryer Fabrics, Inc. v. Saville, 418 Md. 496, 503, 16 A.3d 159, 163 (2011) (citation omitted).
Conversion evolved from trover, which occurred where a defendant, a "finder of lost goods[,] . . . refused to return them" to the plaintiff, the owner of the goods. Lawson v. Commonwealth Land Title Ins. Co., 69 Md.App. 476, 480, 518 A.2d 174,
In Jasen, this Court held that a defendant does not convert a plaintiff's intangible property where: (1) no document embodies the plaintiff's right to the plaintiff's intangible property; or (2) a document embodies the plaintiff's right to the plaintiff's intangible property, but the defendant does not convert the document. See 354 Md. at 562, 731 A.2d at 965 ("We refuse . . . to extend [conversion] to cover completely intangible [property] rights[,] or[,] as [Restatement (Second) of Torts § 242(2)] contemplates, . . . situations in which the relevant document itself has not been transferred.").
Because Petitioners urge us to overrule Jasen, 354 Md. at 562, 731 A.2d at 965, this case implicates stare decisis. Under stare decisis, absent "extremely narrow" exceptions, an appellate court does not overrule its precedent. DRD Pool Serv., Inc. v. Freed, 416 Md. 46, 63, 5 A.3d 45, 55 (2010) (citation omitted). Stare decisis "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Id. at 63, 5 A.3d at 55 (citation and internal quotation marks omitted). An appellate court need not adhere to stare decisis where "changed conditions or increased knowledge" have rendered the appellate court's precedent "unsound in the circumstances of modern life, a vestige of the past, [and] no longer suitable to [the] people[.]" Id. at 64, 5 A.3d at 56 (citation and internal quotation marks omitted); see also State v. Stachowski, 440 Md. 504, 520, 103 A.3d 618, 627 (2014) ("We may decline to follow [stare decisis] when . . . the precedent has been rendered archaic and inapplicable to modern society through the passage of time and evolving events[.]" (Citation omitted)).
In sum, because digital media is capable of being converted, there is no need for us to "modernize" conversion by adopting Restatement (Second) of Torts § 242(2) ("One who effectively prevents the exercise of intangible [property] rights of the kind customarily merged in a document is subject to a liability similar to that for conversion, even though the document is not itself converted."). Several other considerations militate against adopting Restatement (Second) of Torts § 242(2)—i.e., removing conversion of a document as an element of conversion of intangible property.
First, to remove conversion of a document as an element of conversion of intangible property would destroy conversion's common law foundation. Ever since its inception, conversion has been based on a defendant taking a plaintiff's personal property. See Nickens, 429 Md. at 77, 54 A.3d at 756 (A "[c]onversion is [a defendant's] intentional . . . exertion of ownership or dominion over [a plaintiff]'s personal property in denial of or inconsistent
Second, to remove conversion of a document as an element of conversion of intangible property would expand conversion so much that it could essentially swallow other torts, such as unfair competition and wrongful interference with contractual or business relations, also known as tortious interference with contract or with economic relations. See Jasen, 354 Md. at 562, 731 A.2d at 964 (Instead of expanding conversion, "it would seem preferable to fashion other remedies, such as unfair competition, to protect people from having intangible [property] values used and appropriated in unfair ways." (Citation omitted)); Elecs. Store, Inc. v. Cellco P'ship, 127 Md.App. 385, 407, 732 A.2d 980, 991 (1999) (Unfair competition is "damaging or jeopardizing another's business by fraud, deceit, trickery or unfair methods of any sort." (Quoting Balt. Bedding Corp. v. Moses, 182 Md. 229, 237, 34 A.2d 338, 342 (1943)) (internal quotation marks omitted)); Kaser v. Fin. Prot. Mktg., Inc., 376 Md. 621, 628-29, 831 A.2d 49, 53 (2003) (Wrongful interference with contractual or business relations is comprised of: "(1) intentional and wilful acts; (2) calculated to cause damage to the plaintiffs in their lawful business; (3) done with the unlawful purpose to cause such damage and loss, without right or justifiable cause on the part of the defendants (which constitutes malice); and (4) actual damage and loss resulting." (Citation, footnote, and internal quotation marks omitted)).
Third, to remove conversion of a document as an element of conversion of intangible property could lead to expanding and distorting conversion one small step further—by removing as an element of conversion of intangible property the existence of a document that embodies a plaintiff's right to the plaintiff's intangible property. In other words, a defendant would be able to convert a plaintiff's intangible property even where no document embodied the plaintiff's right to the plaintiff's intangible property (for example, as in the case of a business's goodwill). Restatement (Second) of Torts § 242's authors indicated that removing
Finally, as Petitioners' counsel candidly conceded at oral argument,
Specifically, Petitioners relied on four unreported opinions in which courts in other jurisdictions favorably cited Restatement (Second) of Torts § 242(2). See Hunt v. Team Performance, Inc., No. CV08-69-S-EJL, 2009 WL 2044682, at *6 n. 11 (D.Idaho July 8, 2009); Sports Imaging of Ariz. L.L.C. v. 1993 CKC Trust, No. 1 CA-CV 05-0205, 2008 WL 4448063, at *26 (Ariz.Ct.App. Sept. 30, 2008); Zanker Grp., LLC v. Summerville at Litchfield Hills, LLC, No. UWYCV044010223S, 2006 WL 2130382, at *5 (Conn.Super.Ct. July 18, 2006); Butko v. Stewart Title Co. of Wash., Inc., 99 Wn.App. 533, 991 P.2d 697, 710 (2000) (depublished); see also Dore v. Sweports Ltd., Nos. 1-12-1980, 1-13-2418, 2014 WL 1757896, at *4 (Ill.App. Ct. Apr. 28, 2014) (favorably citing Restatement (Second) of Torts § 242 cmt. b). Unreported opinions do not constitute law, even in the jurisdictions whose courts issued them; thus, Petitioners' reliance on the above cases is misplaced.
Petitioners also relied on two out-of-State cases in which courts stated (just as this Court has held, and now holds again) that a defendant can convert a plaintiff's intangible property under certain circumstances. Compare Jasen, 354 Md. at 562, 731 A.2d at 965 ("[C]onversion generally may extend to the type of intangible property rights that are merged or incorporated into a transferable document.") with M.C. Multi-Family Dev., L.L.C. v. Crestdale Assocs., Ltd., 124 Nev. 901, 193 P.3d 536, 543 (2008) ("`[W]here there is conversion of a document in which intangible [property] rights are merged, the damages include the value of such rights.'" (Quoting Restatement (Second) of Torts § 242(1))) and Hinkle Oil & Gas, Inc. v. Bowles Rice McDavid Graff & Love LLP, 617 F.Supp.2d 447, 455 (W.D.Va.2008), aff'd, 360 Fed.Appx. 400 (4th Cir.2010) (There is "an action for the conversion of intangible
Similarly, Petitioners relied on an out-of-State case in which a court held (just as we do and the Court of Special Appeals has) that, for conversion's purposes, the document that embodies the plaintiff's right to the plaintiff's intangible property can be digital (as opposed to paper). Compare Birschbach, 123 Md.App. at 777 n. 6, 720 A.2d at 972 n. 6 (For conversion's purposes, there is "no distinction between hard copy and electronic data[,]" as long as a document, either paper or digital, embodies the plaintiff's right to the plaintiff's intangible property.) with Thyroff, 832 N.Y.S.2d 873, 864 N.E.2d at 1278 ("[E]lectronic records that [a]re stored on a computer and [a]re indistinguishable from printed documents[ are] subject to a claim of conversion[.]").
Petitioners also relied on an out-of-State case in which a court held a plaintiff established a claim, not for conversion, but instead for tortious deprivation of an interest in a corporation. See Monterrey Mexican Rest. of Wise, Inc. v. Leon, 282 Ga.App. 439, 638 S.E.2d 879, 887 (2006) ("Although technically the circumstances of the case at bar do not amount to conversion, nonetheless, under these facts, there has been a deprivation of [the plaintiff]'s stock interest in the Corporation.").
That said, Petitioners relied on one out-of-State case in which a court, at least implicitly, endorsed the principle behind Restatement (Second) of Torts § 242(2). Specifically, in Fremont Indem. Co. v. Fremont Gen. Corp., 148 Cal.App.4th 97, 103, 125-26, 55 Cal.Rptr.3d 621 (2007), the Second District Court of Appeal of California held that a plaintiff stated a claim for conversion of the plaintiff's net operating losses,
For three reasons, however, we are unpersuaded by Fremont Indem., 148 Cal. App.4th at 103, 125-26, 55 Cal.Rptr.3d 621. First, as we did above, the Second District Court of Appeal of California correctly acknowledged that conversion should not be expanded so much that it could essentially swallow other torts, see id. at 124, 55 Cal.Rptr.3d 621 ("[N]ewer economic torts have developed that may better take into account the nature and uses of intangible property, the interests at stake, and the appropriate measure of damages. On the other hand, if the law of conversion can be adapted to particular types of intangible property and will not displace other, more suitable law, it may be appropriate to do so." (Citation omitted)); in its analysis of conversion, however, that Court did not address whether that Court's holding would expand conversion so much that it could essentially swallow other torts. Second, in Fremont Indem., id. at 123-24, 55 Cal.Rptr.3d 621, the Second District Court of Appeal of California was bound by, and relied on, Payne v. Elliot, 54 Cal. 339, 342, 340 (1880), in which the Supreme Court of California held that a plaintiff stated a
Instead, Maryland will remain among the many jurisdictions that maintain conversion of a document as an element of conversion of intangible property (and thus reject the principle behind Restatement (Second) of Torts § 242(2)). See, e.g., Narragansett Elec. Co. v. Carbone, 898 A.2d 87, 97 (R.I.2006) ("[A] conversion action will not lie for a partnership interest or other intangible property right that is not manifested by a tangible instrument, such as a written agreement, a bankbook, or a promissory note, that may, in turn, be converted." (Citations and internal quotation marks omitted)); Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 734 (Tex.App.2013) ("[I]ntangible property cannot be converted unless the underlying intangible [property] right has been merged into a document that has been converted." (Citations omitted)); The Film & Tape Works, Inc. v. Junetwenty Films, Inc., 368 Ill.App.3d 462, 305 Ill.Dec. 807, 856 N.E.2d 612, 624 (2006) ("[I]ntangible property rights cannot be the subject of conversion unless they are merged into a tangible document over which the [defendant] exercised dominion or ownership." (Citations omitted)).
At the same time, Maryland will continue to endorse Restatement (Second) of
We are unpersuaded by Petitioners' reliance on the following quotation from Lawson, 69 Md.App. at 481, 518 A.2d at 176: "The [ ] Court of Appeals has been about as liberal in [the] expansion [of conversion] as any court." In the following paragraph, the Court of Special Appeals clarified: "Notwithstanding this expansion, there do remain some limits to [conversion]. The initial focus continues to be on the tangible item withheld." Id. at 481, 518 A.2d at 176. This comports with Jasen, 354 Md. at 561, 731 A.2d at 964, in which this Court pointed out that removing conversion of a document as an element of conversion of intangible property would "not accord very well with the traditional common law limitations of conversion[.]" (Quoting Restatement (Second) of Torts § 242 cmt. e).
For the above reasons, we again hold that a defendant does not convert a plaintiff's intangible property where the defendant does not convert a document that embodies the plaintiff's right to the plaintiff's intangible property.
Applying our holding to this case's facts, we conclude that Petitioners failed to establish a claim against Witherspoon for conversion of the life insurance policy, as Petitioners failed to establish that Witherspoon converted any document that embodied Petitioners' right to the life insurance policy. It is undisputed that the Thompson Children, including Petitioners, owned the life insurance policy. We assume, without deciding, that: (1) the policy notices and policy statements that the life insurance company mailed to Witherspoon embodied Petitioners' right to the life insurance policy; and (2) Witherspoon intentionally exerted ownership or dominion over the policy notices and policy statements by receiving them in the mail and not informing Petitioners of their contents. That said, Petitioners did not offer any evidence that they did not consent to Witherspoon's intentional exertion of ownership or dominion over the policy notices and policy statements; to the contrary, Petitioners expressly consented to the life insurance company mailing the policy notices and policy statements to Witherspoon. Specifically, Petitioners signed the application for the life insurance policy, which listed Witherspoon's address under "Send Premium Notices To:[.]" Because Petitioners consented to Witherspoon's intentional exertion of ownership or dominion over the policy notices and policy statements, Witherspoon did not convert the policy notices and policy statements; accordingly, Witherspoon did not convert the life insurance policy.
Petitioners contend that the circuit court was correct in denying Witherspoon's motion for judgment notwithstanding the verdict as to constructive fraud, as they established a claim against Witherspoon for constructive fraud. Specifically, Petitioners argue that they established that the parties were in a confidential relationship, as: (1) Witherspoon was Petitioners' brother-in-law; (2) Witherspoon was a financial advisor, and Petitioners lacked financial expertise; and (3) Witherspoon was the life insurance policy's broker, and, during the relevant time frame, the life insurance company mailed all policy-related documents to Witherspoon's address.
Witherspoon responds that the circuit court erred in denying his motion for judgment notwithstanding the verdict as to constructive fraud, as Petitioners failed to establish a claim against him for constructive fraud. Specifically, Witherspoon contends that Petitioners failed to establish that the parties were in a confidential relationship, as: (1) Petitioners did not trust Witherspoon; (2) Petitioners did not depend on Witherspoon for financial advice; and (3) Petitioners did not depend solely on Witherspoon to know whether the annual life insurance premiums were being paid, as the Thompson Parents also knew whether the annual life insurance premiums were being paid.
A defendant commits constructive fraud against a plaintiff where the defendant "breach[es] a legal or equitable duty" to the plaintiff in a way that "tend[s] to deceive others, to violate public or private confidence, or to injure public interests." Canaj, Inc. v. Baker & Div. Phase III, LLC, 391 Md. 374, 421-22, 893 A.2d 1067, 1095 (2006) (quoting Md. Envtl. Trust v. Gaynor, 370 Md. 89, 97, 803 A.2d 512, 516-17 (2002)) (emphasis and internal quotation marks omitted).
For constructive fraud's purposes, a defendant owes an equitable duty to a plaintiff where the parties are in a confidential relationship. See Gaynor, 370 Md. at 98-99, 97, 803 A.2d at 517, 516-17 (This Court held that the plaintiffs failed to establish a claim for constructive fraud where "[t]here was no fiduciary or confidential relationship existing between" the parties; thus, the defendant "had no duty to" take a certain action.); Gaggers v. Gibson, 180 Md. 609, 614, 613, 26 A.2d 395, 398, 397 (1942) (This Court held that the plaintiffs established a claim for constructive fraud where "[c]onfidence clearly was reposed in" the defendant.); Alleco Inc. v.
For constructive fraud's purposes, a plaintiff and a defendant are in a confidential relationship where the defendant "has gained the [plaintiff's] confidence. . . and purports to act or advise with the [plaintiff]'s interest in mind." Buxton v. Buxton, 363 Md. 634, 654, 770 A.2d 152, 164 (2001) (citation omitted). Accordingly, a plaintiff and a defendant are in a confidential relationship only if the plaintiff depends on the defendant. See Upman v. Clarke, 359 Md. 32, 41-42, 753 A.2d 4, 9 (2000) ("[T]o establish . . . a [confidential] relationship[,] there must appear at least a condition from which dependence of the [plaintiff] may be found[.]" (Citation and internal quotation marks omitted)). For example, a plaintiff and a defendant are in a confidential relationship where the parties "stand in such a relation to each other that [the plaintiff] must necessarily repose trust and confidence in the [defendant's] good faith and integrity[.]" Id. at 42, 753 A.2d at 9 (citation and internal quotation marks omitted). Thus, all fiduciary relationships are confidential relationships, see id. at 42, 753 A.2d at 9 ("In some relationships, such as attorney-client or trustee-beneficiary, a confidential relationship is . . . presumed as a matter of law."); B.N. v. K.K., 312 Md. 135, 151, 538 A.2d 1175, 1183 (1988) ("[A] fiduciary [relationship] is presumptively confidential[.]" (Citations omitted)), but not all confidential relationships are fiduciary relationships, see Buxton, 363 Md. at 654, 770 A.2d at 164 ("A confidential relation may exist although there is no fiduciary relation; it is particularly likely to exist where there is a family relationship[.]" (Citation omitted)); Figgins v. Cochrane, 403 Md. 392, 410, 942 A.2d 736, 746 (2008) ("[W]hen a parent on account of old age and infirmity relies heavily upon the child for care and protection or for guidance in business affairs, then there exists a confidential relationship[.]" (Citations and internal quotation marks omitted)).
Applying these principles to this case's facts, we conclude that Petitioners failed to establish a claim against Witherspoon for constructive fraud, as Petitioners failed to establish that the parties were in a confidential relationship. Petitioners do not contend that the parties were in a fiduciary relationship, and instead misplace their reliance on three sets of circumstances in a vain attempt to establish that the parties were in a confidential relationship.
First, the parties were not in a confidential relationship by virtue of the circumstance that Witherspoon was Petitioners' brother-in-law. A family relationship is not necessarily a confidential relationship; and, in any event, the types of family relationships that are most conducive
Second, the parties were not in a confidential relationship by virtue of the circumstances that Witherspoon was a financial advisor and that Petitioners lacked financial expertise. Petitioners do not point to any evidence that they depended on Witherspoon for financial advice. Indeed, the core of Petitioners' claims against Witherspoon is simply that Witherspoon failed to inform them that the annual life insurance premiums were not being paid; any layperson who received the policy statements and policy notices that the life insurance company mailed to Witherspoon could have informed Petitioners that the annual life insurance premiums were not being paid, thus, Witherspoon's role as a financial advisor is of no moment.
Third, the parties were not in a confidential relationship by virtue of the circumstances that Witherspoon was the life insurance policy's broker and that, during the relevant time frame, the life insurance company mailed all policy-related documents to Witherspoon's address. Petitioners did not solely depend on Witherspoon to know whether the annual life insurance premiums were being paid. In other words, Witherspoon was not the exclusive source of that information. The Thompson Parents—the ones who were supposed to pay for the annual life insurance premiums, and who did so for years—obviously knew whether they were paying for the annual life insurance premiums. At any time during the relevant time frame, Petitioners could have asked the Thompson Parents whether they were still paying for the annual life insurance premiums. A plaintiff and a defendant are not in a confidential relationship where the plaintiff does not "depend[ ]" on the defendant. Upman, 359 Md. at 41-42, 753 A.2d at 9 (citation omitted).
For the above reasons, Petitioners failed to establish a claim against Witherspoon for constructive fraud, as Petitioners failed to establish that the parties were in a confidential relationship. Thus, the circuit court erred in denying Witherspoon's motion for judgment notwithstanding the verdict as to constructive fraud.
BARBERA, C.J., ADKINS and McDONALD, JJ., concur.
McDONALD, J., concurring, in which BARBERA, C.J., and ADKINS, J. join;.
I join in the judgment of the Court, but not in its opinion. My primary concern has to do with the Court's emphatic embrace of the 1999 Jasen decision that limits the tort of conversion with respect to intangible property rights to circumstances where the defendant converts a document that embodies those rights. This seems
It seems that we should leave open the development of the tort of conversion to cover the misappropriation of such rights when other remedies prove unavailing—or at least we should allow for the development of a similar common law tort, perhaps under a different name. See, e.g., 3 D.B. Dobbs, P.T. Hayden & E.M. Bublick, The Law of Torts § 711 at p. 805 (2d ed. 2011) ("[I]t is also plausible to treat some accounts or "funds" as subject to conversion even where the defendant does not physically withhold a negotiable instrument from its owner. If the defendant, without authority to do so, transfers funds from the plaintiff's account to his own or another account, he is a converter even though the transfer is purely a bookkeeping entry, not a physical movement of cash.") That is what the Restatement, in a passage just following the sentence quoted several times in the Court's opinion,
Bullard, Proxy Distribution and the Requirement of Impartiality, 91 Denv. U.L.Rev. Online 93, 95 (2014). The transfer of economic rights in shares thus does not involve a transfer of dominion or control over a "digital document."