Lasater v. Guttmann

Decision Date13 September 2010
Docket NumberNo. 2364, Sept. Term, 2008.,2364, Sept. Term, 2008.
Citation194 Md.App. 431,5 A.3d 79
PartiesNancy E. LASATER v. John S. GUTTMANN, Jr.
CourtCourt of Special Appeals of Maryland

John J. Condliffe (Shub-Condliffe & Condliffe, on the brief) Towson, MD, for appellant.

Joseph P. Suntum (Maury S. Epner, Miller, Miller & Canby, Chtd., on the brief) Rockville, MD, for appellee.

Panel: EYLER, DEBORAH S., MEREDITH and PAUL A. HACKNER, (Specially Assigned), JJ.

EYLER, DEBORAH S., J.

Nancy E. Lasater, the appellant, and John S. Guttmann, Jr., the appellee, were married in 1980. Twenty-five years later, on August 30, 2005, Lasater sued Guttmann, in the Circuit Court for Montgomery County, for conversion, intentional infliction of emotional distress, breach of fiduciary duty, andfraud. The tort claims were premised largely upon Guttmann's alleged financial malfeasance during the marriage.

Soon thereafter, on November 14, 2005, Guttmann filed for divorce, also in the Circuit Court for Montgomery County.Then, in the tort case (the case at bar), he moved for a stay for the pendency of the divorce action. The motion was granted.

The parties were divorced on November 15, 2007. The stay was lifted in the case at bar and Guttmann moved to dismiss or, in the alternative, for summary judgment as to all counts. Lasater filed a cross-motion for partial summary judgment. The court granted Guttmann's motion in its entirety and denied Lasater's motion.

Lasater appeals from that ruling, posing 13 questions for review, which we have consolidated and rephrased as four:

I. Did the circuit court err or otherwise abuse its discretion in staying the tort suit during the pendency of the divorce case?
II. Did the circuit court err in granting summary judgment on the conversion count?
III. Did the circuit court err in granting summary judgment on the intentional infliction of emotional distress count?
IV. Did the circuit err in granting summary judgment on the fraud and breach of fiduciary duty counts? 1

For the reasons that follow, we answer all four questions in the negative and therefore shall affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS

Both Lasater and Guttmann are lawyers. For the duration of their marriage, Guttmann practiced law at a large firm in Washington, D.C. He was a partner at the firm and for some period of time was the firm's managing partner. Lasater practiced law until 2000; in 2002 she stopped working to stay home full-time with the couple's two children, a daughter born in 1995, and a second daughter born in 2000.2

According to Lasater,3 throughout the parties' marriage, until 2003, Guttmann"alone ran every aspect of the family's finances." The couple held a joint checking account ("Joint Checking Account") into which both of their incomes were supposed to be deposited each month.4 Each spouse wrote checks on this account. The monthly statements were mailedto the parties jointly at their home address. For 23 years, Lasater never read any of the bank statements.

Lasater also held a separate bank account ("Inheritance Account") titled only in her name and containing monies she had inherited from several relatives. In 2002, the couple opened a second joint bank account in which Lasater deposited earnings from her inheritance account and other properties titled only in her name. That account, which both parties called the "Education Account," was used to pay private school tuition and other related expenses for the couple's older child.

According to Lasater, without her knowledge, Guttmann spent large sums of money from their joint accounts on various real estate investments, a huge collection of compact discs ("CDs"), and other expenses she cannot identify because she still does not know what they are.5 The sums Guttmann was spending exceeded the couple's monthly income. To deal with the situation, Guttmann took out several loans against his 401(k) account, some with and some without Lasater's consent,6 took out a home equity line of credit, ran up an overdraft balance of more than $10,000 on the Joint Checking Account, and accrued credit card debt. Meanwhile, Lasater was "scrimping" to make ends meet, believing, as Guttmann was telling her, that the couple's dire financial situation was a function of her having stopped working. Lasater asserts that she did not know how much money Guttmann was earning during this time and that he withheld that information from her. (In fact, his annual income reached more than $350,000.) She also claims he lied to her, saying he had "gone 'of-counsel' " at his law firm, and therefore no longer was entitled to receive year-end distributions, when that was not the case.

Lasater asserts that her concern about the couple's financial situation heightened in the fall of 2002, after she tried, unsuccessfully, to make a $40 ATM withdrawal from the JointChecking Account. In December 2002, she told Guttmann she had decided to take over "stewardship" of the family's finances. The next month (January 2003), she began keeping a ledger to track their income and expenses. She and Guttmann wrote their daily expenditures in a journal.7 For the first time since their marriage, Lasater opened the bank statements and credit card statements that came to their house. It was then she first learned of the existence of the home equity line of credit and the overdraft balance on the Joint Checking Account.8 According to Lasater, when she questioned Guttmann,he blamed her lack of income for the debts. Thereafter, Lasater and Guttmann refinanced their home mortgage to eliminate the home equity debt and pay off their credit card balances. They also sold certain stocks that were losing money.9

On April 22, 2005, Guttmann moved out of the marital home.10 On or about May 16, 2005, he called to inform Lasater that he would be returning the following Saturday to pick up his computer and other items he had left behind. Lasater then spent three days going through the items in her husband's home office. She found in the closet,11 beneath gymbags, sports equipment, and running gear, a red tote bag containing all of the statements for the Joint Checking Account from the past 20 years, in reverse chronological order. She removed these records from the house and placed them in a rented storage unit. Guttmann collected the rest of his belongings from the marital home shortly thereafter and told Lasater he did not plan on returning.

On August 30, 2005, Lasater filed the instant tort action against Guttmann. As mentioned above, Guttmann thereafter filed the divorce case and this case was stayed pending its outcome.

The parties completed extensive discovery in the divorce case. Lasater was awarded sole legal and physical custody of the couple's children. The case was scheduled for trial on all other issues. On the day of trial, the case was called and opening statements were made. Before any evidence was taken, a settlement was reached. The parties agreed that Lasater would receive 75% of the proceeds of the sales of the marital home and the parties' vacation home on the Patuxent River. She also would receive approximately $700,000 of the $1.2 million total balance in the parties' retirement accounts, and an additional $50,000 lump sum payment from Guttmann. Guttmann agreed to forego any claim to the Inheritance Account and to real estate titled in Lasater's name in Reston, Virginia, the District of Columbia, and in St. John in the Virgin Islands. Guttmann agreed to pay Lasater $12,000 a month in indefinite alimony and $5,000 a month in child support. Finally, he agreed to maintain the children on his health insurance plan, to pay their private school tuitions, and to finance their college educations or other vocational expenses.

After the stay in the case at bar was lifted, Guttmann filed a motion to dismiss or, in the alternative, for summary judgment. He argued that Lasater had failed to state any claim for which relief could be granted; and that, as to the conversion, fraud, and breach of fiduciary duty claims, the causes of action were time-barred. Lasater filed a cross-motion forpartial summary judgment and opposed Guttmann's motion.12 A hearing was held, afterwhich the court held the matter sub curia.

On December 19, 2008, the court entered an order granting Guttmann's motion in its entirety and denying Lasater's cross-motion. The order did not specify the basis for the court's ruling, except to say that the dismissal was "for the reasons set forth in [Guttmann's] Motion to Dismiss the Amended Complaint, or in the Alternative, for Summary Judgment[.]"

Lasater noted this timely appeal. We shall include additional facts in our discussion of the issues.

DISCUSSION
I.Stay

When Lasater filed this action, on August 30, 2005, she was representing herself. She did not make any attempt at service upon Guttmann. On October 26, 2005, by then represented by counsel, Lasater filed an amended complaint. On November 14, 2005, Guttmann filed his complaint in the divorce case. One week later, on November 21, 2005, he was served with Lasater's amended complaint in this action.

On December 7, 2005, Guttmann filed a motion to stay this action or, in the alternative, to consolidate it with the divorce case. Lasater opposed the motion. The motion to consolidate was summarily denied in an order dated January 25, 2006. A hearing was scheduled on the motion to stay.

At the hearing on February 27, 2006, Guttmann argued that a stay was required under Vaughn v. Vaughn, 146 Md.App. 264, 806 A.2d 787 (2002). In that case, we held that the circuit court had abused its discretion when it declined to stay a tortsuit filed by a husband against his wife pending the resolution of a later-initiated divorce case. We reasoned that the issues in the tort suit and the divorce case were interrelated and therefore the resolution of the divorce case potentially could resolve the tort issues as well.

Lasater countered that Vaughn was "eviscerated" by Bozman v. Bozman, 376 Md. 461, 830 A.2d...

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