Nielsen Enterprises MD, LLC v. U.S. Bank Trust National Ass'n

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NIELSEN ENTERPRISES MD, LLC; 
BRIAN K. NIELSEN; TERESA R.
NIELSEN,
Plaintiffs-Appellants,
v.
U.S. BANK TRUST NATIONAL
ASSOCIATION; METROPOLITAN
 No. 02-1384
BANK AND TRUST COMPANY,
Defendants-Appellees.
COMPASS CAPITAL CORPORATION;
BARRY C. SMITH,
Movants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Benson E. Legg, Chief District Judge.
(CA-00-2595-L)
Submitted: January 3, 2003
Decided: February 3, 2003
Before WILLIAMS and MICHAEL, Circuit Judges, and
Morton I. GREENBERG, Senior Circuit Judge of the
United States Court of Appeals for the Third Circuit,
sitting by designation.
Affirmed by unpublished per curiam opinion.
2 NIELSEN ENTERPRISES MD v. U.S. BANK TRUST
COUNSEL
David F. Albright, ALBRIGHT & GOERTEMILLER, L.L.C., Balti-
more, Maryland, for Appellants. Lawrence J. Gebhardt, Dale S. Bet-
terton, GEBHARDT & SMITH, L.L.P., Baltimore, Maryland, for
Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Nielsen Enterprises appeals the district court’s grant of summary
judgment in U.S. Bank Trust’s favor on Nielsen Enterprises’ claim
that U.S. Bank Trust is liable for the fraud of its agent and on Nielsen
Enterprises’ claim that U.S. Bank Trust breached the covenant of
good faith and fair dealing. We have reviewed the parties’ briefs and
the record and find no reversible error.
As to the fraud claim, U.S. Bank Trust’s agent had no actual
authority to collect the loan origination fee of which Nielsen Enter-
prises complains. Further, we agree with the district court that as an
undisclosed principal, U.S. Bank Trust could not clothe its agent with
apparent authority to collect the fee. See Restatement (Second) of
Agency § 8, cmt. a (1958) ("[T]here can be no apparent authority cre-
ated by an undisclosed principal."); cf. Parker v. Junior Press Print-
ing Serv., Inc., 296 A.2d 377, 380 (Md. 1972) ("[A]pparent authority
to do an act is created as to a third person by written or spoken words
or any other conduct of the principal which, reasonably interpreted,
causes the third person to believe that the principal consents to have
the act done on his behalf by the person purporting to act for him."
(emphasis added)). Moreover, U.S. Bank Trust did not ratify its
agent’s actions because U.S. Bank Trust did not receive any benefit
from the loan origination fee and, in fact, did not know about the loan
NIELSEN ENTERPRISES MD v. U.S. BANK TRUST 3
origination fee until after Nielsen Enterprises went into default.
Accordingly, this claim fails.
Nielsen Enterprises’ claim of bad faith stems from the same loan
origination fee. Nielsen Enterprises alleges that U.S. Bank Trust acted
in bad faith by retaining the loan origination fee and thereby ratifying
the actions of its agent. As discussed above, we agree with the district
court that U.S. Bank Trust did not ratify the acts of its agent. More-
over, Maryland does not recognize an independent cause of action for
breach of the covenant of good faith and fair dealing. Wootton
Enters., Inc. v. Subaru of Am., Inc., 134 F. Supp. 2d 698, 703 n.5 (D.
Md. 2001) ("Maryland courts have not explicitly recognized a sepa-
rate cause of action relating to this duty [of good faith and fair deal-
ing]." (internal quotation marks omitted)); see also Parker v.
Columbia Bank, 604 A.2d 521, 531 (Md. Ct. Spec. App. 1992)
("[T]he duty of good faith merely obligates a lender to exercise good
faith in performing its contractual obligations; it does not obligate a
lender to take affirmative actions that the lender is clearly not
required to take under its loan documents."). As Nielsen Enterprises
does not allege that U.S. Bank Trust breached any of its contractual
obligations, we reject this claim.
Accordingly, we affirm on the reasoning of the district court. See
Nielsen Enters. v. U.S. Bank Trust Nat’l Assoc., Civ. No. L-00-2595
(D. Md. filed Sept. 21, 2001). We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED