             REPORTED

IN THE COURT OF SPECIAL APPEALS

           OF MARYLAND

               No. 2494

        September Term, 2013




           D EANN BAKER

                   v.

     CHRISTOPHER A. BAKER




   Woodward,
   Arthur,
   Rodowsky, Lawrence F.
         (Retired, Specially Assigned),

                  JJ.




         Opinion by Arthur, J.




       Filed: February 2, 2015
       This case concerns the interpretation of an agreement to divide marital property in

connection with a divorce. The case specifically concerns whether the wife relinquished

her interest in a capital-loss carry-forward that resulted from activity in the couple’s

jointly-titled investment accounts when she relinquished any interest “in” the accounts

themselves. Holding that she had, the Circuit Court for Anne Arundel County directed

the entry of summary judgment in her ex-husband’s favor. We shall reverse.

                                   Q UESTIONS P RESENTED

       Ms. Baker presents several questions and sub-questions for our review, which we

restate as follows:

       I.       Did the circuit court err in denying Ms. Baker’s motion for
                summary judgment on the ground that the marital property
                agreement unambiguously entitled Mr. Baker to 100 percent of the
                capital-loss carry-forward as an interest in the couple’s jointly-
                owned investment accounts?

       II.      Alternatively, did the circuit court err in not finding an ambiguity
                in the agreement as to how the capital-loss carry-forward should be
                divided, thus precluding summary judgment for either party and
                requiring a trial on the facts?

       III.     Should this Court, if it reverses and remands in Ms. Baker’s favor
                on the issue of breach of contract, reinstate Mr. Baker’s prior
                alternative claim of unjust enrichment? 1


       1
           Ms. Baker originally phrased her questions in the following manner:

       I.       With respect to the Property Settlement Agreement:

                A.     Did the trial court err in denying Ms. Baker’s motion for
                       summary judgment because each divorced party is entitled
                       to 50 percent of a capital loss carry forward which
                                                                                (continued...)
      For the reasons that follow, we answer affirmatively as to the first issue, reverse

the circuit court’s judgment, and direct the court to enter summary judgment in Ms.

Baker’s favor. We find it unnecessary to reach the second issue, as the agreement was

not ambiguous. As to the third issue, we hold that Mr. Baker cannot reassert a quasi-

contractual claim for unjust enrichment when he is bound by an express, written contract.

                          F ACTUAL AND P ROCEDURAL H ISTORY

I.    Terms of Divorce Agreement

      Christopher and DeAnn Baker were divorced in the Circuit Court for Anne

Arundel County on September 15, 2010. Their Voluntary Separation and Property

Settlement Agreement (the “Agreement”) was incorporated, but not merged, into the

judgment of absolute divorce.

       The Agreement addressed the issues of alimony, child support, child custody, the


      1
          (...continued)
                       originated from equally owned jointly owned assets and the
                       agreement did not provide to the contrary?

               B.     Did the trial court err in sua sponte concluding that the
                      agreement unambiguously transferred the entire capital loss
                      carry forward to Mr. Baker where the agreement is silent on
                      the issue?

               C.     Alternatively, did the trial court err in not finding an
                      ambiguity in the agreement which would have precluded
                      summary judgment for either party?

      II.      Should the claim for unjust enrichment be reinstated where the
               issue is one of contract?

                                            -2-
division of marital property, and visitation. It allocated various parcels of real estate to

one spouse or the other and, in the case of one parcel, arranged for it to be sold and for

the proceeds (and capital gains) to be equally divided. Similarly, the Agreement set the

terms for the division of the parties’ automobiles and their personal property. In addition,

the Agreement required Mr. Baker to pay $1.135 million to Ms. Baker, as a monetary

award, over the course of five years.

       Section 19 of the Agreement set the terms for allocation of the couple’s investment

accounts. Section 19.02, which forms the crux of this dispute, states as follows:

         Wife hereby relinquishes to Husband any interest she might have in
         any jointly titled investment or bank accounts. It is agreed that Wife
         shall promptly sign whatever assignments, waivers, or other
         documents are reasonably necessary to effect a transfer of interest
         from both parties into the sole and exclusive ownership of Husband.
         Husband shall be solely responsible for any loans associated with or
         secured by those accounts.

II.    The Capital-Loss Carry-Forward

       At the time of the divorce, the parties had a capital-loss carry-forward that resulted

from losses in their investment accounts. The carry-forward came about because

the Internal Revenue Code (the “I.R.C.”) limits the amount of a capital loss that taxpayers

may use to reduce their tax liability in any given year, but allows taxpayers to defer (or

carry-forward) the excess loss to reduce tax liabilities in future years. Hence, a capital-

loss carry-forward is, in essence, a kind of a deferred tax-benefit.

       To illustrate, if an individual taxpayer generates a capital loss (i.e., the loss from



                                              -3-
the sale or exchange of any capital asset) in a given year, the taxpayer, to reduce a tax

liability, may offset the loss against any capital gains from that year. If the taxpayer’s

aggregate losses exceed the capital gains in that year, he or she may also deduct up to

$3,000.00 of the excess loss against ordinary income. See I.R.C. § 1211(b). The taxpayer

then may “carry forward” any unused capital losses to the following year. See I.R.C. §

1212(b). In each future year in which that carried-forward loss remains, the taxpayer

again may offset the loss against future capital gains, and against up to $3,000.00 of

ordinary income, until all losses are exhausted or until the taxpayer dies.

       As a leading treatise explains:

        When carried forward, capital losses retain their short- or long-term
        character and are treated as sustained in the year to which they are
        carried. They are amalgamated with losses actually sustained in the year
        to which they are carried in determining the taxpayer’s net capital gains
        and losses and the amount to be deducted from ordinary income. Like
        losses actually sustained in the carryover year, they must be used to the
        extent possible even if it could be more advantageous to hold them in
        abeyance for use in a later year. . . . Unused capital loss carryovers
        expire on the taxpayer’s death.

2 Boris I. Bittker & Lawrence Lokken, Federal Taxation of Income, Estates & Gifts ¶

46.2.6 (3d ed. 2000) (footnotes omitted).

III.   The Litigation Over the Capital-Loss Carry-Forward

       After the divorce, Ms. Baker used about 50 percent of the capital-loss carry-

forward to offset the gains that she realized from the sale of the one of the couple’s

parcels of real property. Contending that he alone had the sole right to the carry-forward,



                                             -4-
Mr. Baker filed suit in the Circuit Court for Anne Arundel County on January 23, 2012.

He alleged breach of contract and unjust enrichment and requested a declaratory

judgment, as well as an award of attorneys’ fees under the Agreement.2

       A year later, after a reasonable period of time for discovery, Ms. Baker moved for

summary judgment. In support of her motion, Ms. Baker argued that, under the

unambiguous language of the Agreement, she had not relinquished her interest in the

capital-loss carry-forward because it was an interest separate and apart from the couple’s

jointly-titled investment accounts. Mr. Baker opposed the motion, arguing that the

Agreement was ambiguous.

       On July 15, 2013, the court heard argument on the motion. At the hearing, Mr.

Baker shifted ground, arguing that the agreement was not ambiguous and that, under its

unambiguous terms, his ex-wife had relinquished her interest in the carry-forward.

       The circuit court agreed with Mr. Baker, holding that the text of the Agreement

unambiguously allocated the capital-loss carry-forward to him. It memorialized its ruling

in a written order dated August 21, 2013, which left open the determination of the award

of attorney’s fees to Mr. Baker as the prevailing party. Because the court had found in

Mr. Baker’s favor on the breach of contract claim, it dismissed his unjust enrichment

claim as moot.




      2
         Mr. Baker’s pleadings included a request for modification of child support. The
parties settled their dispute on that issue, and it does not form any part of this appeal.

                                            -5-
       After the parties reached agreement on the amount of Mr. Baker’s damages

because of his ex-wife’s use of the carry-forward ($43,370.00) and the amount of his

attorneys’ fees ($8,668.00), the court entered a final judgment. Ms. Baker then filed a

timely notice of appeal to this Court.

                                         D ISCUSSION

I.     Circuit Court Erred in Entering Summary Judgment in Favor of Mr. Baker

       Ms. Baker challenges the circuit court’s decision to grant summary judgment in

her husband’s favor on the issue of breach of contract. In brief summary, she argues that

the capital-loss carry-forward is a tax asset that, by operation of law, was distributed

equally to her and Mr. Baker upon their divorce and that nothing in the Agreement

dictates otherwise. Mr. Baker, by contrast, principally argues that the carry-forward is an

interest in the jointly-titled investment accounts that his ex-wife unambiguously

relinquished to him under the express terms of the Agreement. Because we conclude that

the carry-forward is, as a matter of law, not an “interest in” the jointly-titled investment

accounts within the meaning of section 19.02 of the Agreement, we reject Mr. Baker’s

interpretation and hold that the circuit court erred in directing entry of summary judgment

against his ex-wife.

       A.     Standard of Review

       For motions for summary judgment, the applicable legal standards are well known:

under Rule 2-501(f), “[t]he court shall enter judgment in favor of or against the moving



                                              -6-
party if the motion and response show that there is no genuine dispute as to any material

fact and that the party in whose favor judgment is entered is entitled to judgment as a

matter of law.”

          “[T]he summary judgment standard is akin to that of a directed verdict, i.e.,

whether a fair-minded jury could return a verdict for the plaintiff on the evidence

presented.” Seaboard Sur. Co. v. Richard F. Kline, Inc., 91 Md. App. 236, 244 (1992);

accord May v. Air & Liquid Sys. Corp., 219 Md. App. 424, 429 (2014). Thus, a court

must view the facts, and all reasonable inferences that may be drawn from them, in the

light most favorable to the non-moving party. May, 219 Md. App. at 429; Dobkin v.

Univ. of Baltimore Sch. of Law, 210 Md. App. 580, 590-91 (2013). Nonetheless, when a

movant has carried its burden of demonstrating sufficient grounds for summary judgment,

“‘the party opposing summary judgment must do more than simply show there is some

metaphysical doubt as to the material facts.’” Hamilton v. Dackman, 213 Md. App. 589,

606 (2013) (quoting Seaboard Sur. Co., 91 Md. App. at 244); accord May, 219 Md. App.

at 430.

          “In reviewing the grant of a motion for summary judgment, appellate courts focus

on whether the circuit court’s grant of the motion was legally correct.” Sierra Club v.

Dominion Cove Point LNG, L.P., 216 Md. App. 322, 330 (2014) (citing Laing v.

Volkswagen of Am., Inc., 180 Md. App. 136, 152-53 (2008)); accord May, 219 Md. App.

at 430. Thus, we conduct a plenary, de novo review of the grant of summary judgment.



                                               -7-
See, e.g., May, 219 Md. App. at 430; Reiner v. Ehrlich, 212 Md. App. 142, 151, cert.

denied, 433 Md. 514 (2013); Dobkin, 210 Md. App. at 590-91.

       B.       Capital-Loss Carry-Forwards and Marital Property

       In the absence of any agreement, the United States Treasury regulations

specifically provide that if spouses file separate returns after having previously filed a

joint return, any capital-loss carry-forward is “allocated to the spouses on the basis of

their individual net capital loss which gave rise to such capital loss carryover.” Treas.

Reg. § 1.1212-1(c)(1)(iii).3 In other words, if spouses stop filing joint returns, any

capital-loss carry-forward is divided between them in proportion to the extent to which

their individual losses gave rise to the carry-forward. Id. In the case of jointly-titled

assets in which the spouses had an equal interest, this would mean that the carry-forward

would be divided equally between them.

       Nonetheless, most courts have held that a capital-loss carry-forward is a form of

marital property, which the spouses can allocate between themselves at the time of a




       3
           Treasury Regulation § 1.1212-1(c)(1)(iii) states in full:

       If a husband and wife make separate returns for the first taxable year
       beginning after December 31, 1963, or any prior taxable year, and they
       made a joint return for the preceding taxable year, any capital loss
       carryover from such preceding taxable year shall be allocated to the
       spouses on the basis of their individual net capital loss which gave rise to
       such capital loss carryover. The capital loss carryover so allocated to each
       spouse may be carried forward by such spouse to the taxable year in
       accordance with paragraph (a) or (b) of this section.

                                               -8-
divorce. See, e.g., Mills v. Mills, 663 S.W.2d 369, 372 (Mo. Ct. App. 1983) (ruling that

“court did not err in finding the . . . capital loss carry forward was marital property”);

Finkelstein v. Finkelstein, 701 N.Y.S.2d 52, 54 (N.Y. App. Div. 2000) (concluding “that a

capital loss carry forward accumulated by the parties constituted a marital asset subject to

distribution”); see also Magee v. Garry-Magee, 833 N.E.2d 1083, 1092-93 (Ind. Ct. App.

2005) (concluding that capital-loss carry-forward was property subject to distribution in

divorce proceeding); cf. Haley v. Haley, 936 So. 2d 1136, 1139-40 (Fla. App. 2006)

(capital-loss carry-forward was not marital property and could not be allocated among

divorcing spouses where loss arose from property that was not a marital asset).

       We agree that a capital-loss carry-forward, when generated by a capital loss from

the sale of marital property, is itself marital property, which the spouses can agree to

allocate as they wish at the time of a divorce. Consequently, the question in this case

becomes whether the Agreement allocates the capital-loss carry-forward between Mr. and

Ms. Baker. If it does, the terms of the Agreement govern; if it does not, the background

principles of law in the Treasury Regulations allocate the carry-forward between the

spouses in proportion to the extent to which their individual losses gave rise to the carry-

forward.

       C.     Section 19.02 Unambiguously Does Not Allocate the Carry-Forward to
              Mr. Baker

       Accepting Mr. Baker’s arguments, the circuit court held that section 19.02 of the

Agreement unambiguously allocated the carry-forward to him. We agree that section

                                              -9-
19.02 is unambiguous, but disagree that that provision allocates the carry-forward to Mr.

Baker.

         “[T]he determination of ambiguity is one of law, not fact, and that determination

is subject to de novo review by the appellate court.” Calomiris v. Woods, 353 Md. 425,

434 (1999); accord Ocean Petroleum Co., Inc. v. Yanek, 416 Md. 74, 86 (2010) (quoting

Clancy v. King, 405 Md. 541, 556-57 (2008)) (“‘the determination of whether a contract

is ambiguous[] is a question of law,’ which we review de novo”); Huggins v. Huggins &

Harrison, Inc., __ Md. App. ___, 2014 WL 6769908, at *5 (Dec. 2, 2014).

         Under the objective view of contracts, “a written contract is ambiguous if, when

read by a reasonably prudent person, it is susceptible of more than one meaning.”

Calomiris, 353 Md. at 436; Huggins, 2014 WL 6769908, at *6. An agreement is not

ambiguous merely because two parties, in litigation, offer different interpretations of its

language. Diamond Point Plaza Ltd. P’ship v. Wells Fargo Bank, N.A., 400 Md. 718, 751

(2007); Huggins, 2014 WL 6769908, at *6.

         As previously stated, section 19.02 states, in pertinent part, that “[Ms. Baker]

hereby relinquishes to [Mr. Baker] any interest she might have in any jointly titled

investment or bank accounts.” (Emphasis added.) Thus, the case turns on whether the

capital-loss carry-forward was an interest “in” the parties’ jointly-titled investment

accounts. We hold that it was not.

         Under the unambiguous language of section 19.02, an interest “in” the investment



                                              -10-
or bank accounts is an interest in the securities, cash, or other assets that reside “in” the

accounts. By contrast, while the capital-loss carry-forward might be an interest that

“relates to” the accounts, or “arises from” the accounts, or “results from activity in” the

accounts, it is plainly not an asset “in” the accounts themselves.

         To illustrate, if Mr. Baker had liquidated the accounts and drained them of all of

their assets immediately after his ex-wife signed the agreement and relinquished her

interest in the accounts, the capital-loss carry-forward would continue to exist. In other

words, while Mr. Baker could close the accounts and dispose of all of the securities and

other assets in them, he could not thereby do away with the capital-loss carry-forward.

Under the plain language of section 19.02, therefore, the carry-forward must be an

interest separate and apart from the interests “in” the accounts. It follows, as a matter of

law, that Ms. Baker did not relinquish her interest by agreeing to the terms of section

19.02.

         In effect, Mr. Baker (and the circuit court) would rewrite the Agreement to read

that Ms. Baker relinquished interests “relating to,” “arising from,” or “resulting from

activity in” the accounts, and not merely interests “in” the accounts themselves. Courts,

however, cannot rewrite contracts. See, e.g., Cottman v. Dep’t of Natural Res., 44 Md.

App. 224, 232 (1979).

         If the Agreement had been drafted more broadly to encompass interests “relating

to,” “arising from,” or “resulting from activity in” the accounts, we might have reached a



                                              -11-
different conclusion. We are required, however, to construe the agreement that the parties

made, not the agreement that one or the other thought or wished that they had made. See,

e.g., Dumbarton Improvement Ass’n v. Druid Ridge Cemetery Co., 434 Md. 37, 51 (2013)

(quoting Slice v. Carozza Props., Inc., 215 Md. 357, 368 (1958)) (“‘[t]he written

language embodying the terms of an agreement will govern the rights and liabilities of the

parties, irrespective of the intent of the parties at the time they entered into the contract,

unless the written language is not susceptible of a clear and definite understanding’”);

Huggins, 2014 WL 6769908, at *5. Under the unambiguous terms of the agreement that

the parties actually made, section 19.02 did not allocate the capital-loss carry-forward to

Mr. Baker, because the carry-forward was not an interest “in” the parties’ joint investment

accounts. The circuit court, therefore, erred in directing the entry of summary judgment

in favor of Mr. Baker rather than his ex-wife.

       D.      Mr. Baker’s Counter-Arguments Are Unavailing

       As a fallback position, Mr. Baker argues that a number of miscellaneous

provisions evidence the parties’ intention to allocate the carry-forward to him. We

disagree with his interpretation of those provisions.

       Mr. Baker first cites, section 25 of the Agreement, titled “Income Taxes.” That

provision states in its entirety:

                25.01 The parties have filed joint income tax returns during their
         marriage, including tax year 2009 and Husband agrees to hold Wife
         harmless from any claim for State and Federal income taxes, penalties,
         and fines which are attributable due and owing for tax year 2009. Each

                                              -12-
         party warrants to the other that all information provided by him or her
         for the preparation of their returns has been true, correct and complete.
         If there is a deficiency assessment on any return arising out of
         Husband’s assets, jointly titled assets, or Husband’s income, Husband
         shall pay the amount ultimately determined to be due, together with
         interest and penalties, if any, as well as all expenses, including counsel
         fees, that may be incurred if Husband decides to contest said deficiency.
         Any refunds due as a result of their filing of joint income tax returns,
         including any amendments thereto, with respect to Husband’s assets,
         jointly titled assets, or Husband’s income, shall be the sole property of
         Husband. If there is a deficiency assessment on any return arising out of
         Wife’s assets or Wife’s income, Wife shall pay the amount ultimately
         determined to be due, together with interest and penalties, if any, and
         receive any refund.

(Emphasis added.)

       Under this section, Mr. Baker assumed the risk of any future tax liabilities “arising

out of” jointly-titled assets and received the benefit of any future tax refunds “with

respect to” those assets. Because the parties agreed to allocate those tax risks and

benefits to him, Mr. Baker argues that section 19.01 should be read to allocate the capital-

loss carry-forward to him as well.

       The short answer to Mr. Baker’s contention is that his agreement to accept future

tax liabilities and refunds from the jointly-titled accounts does not transform the carry-

forward into an interest “in” the accounts within the meaning of section 19.02.

Analytically, the carry-forward remains an interest separate and apart from the joint

accounts regardless of the allocation of risks and benefits in section 25. In view of Mr.

Baker’s agreement to accept future tax liabilities and refunds “arising out of” or “with

respect to” the joint accounts, it might have made sense for the parties to allocate the

                                            -13-
carry-forward to Mr. Baker, but they did not do so either in section 19.02 or in section 25.

Indeed, section 25 says nothing about the carry-forward at all.4

       Mr. Baker also cites section 31.01 of the Agreement, in which “[e]ach party

confirms that the financial information contained [in the Agreement] is true and correct

and complete and that there are no other assets of any significance which have not been

revealed to the other party.” He points out that in Exhibit C to the Agreement, the joint

statement concerning marital and non-marital property, the parties did not list the capital-

loss carry-forward as an asset separate from the investment accounts. He concludes that

his wife must not have intended to retain any interest in the carry-forward.

       The main difficulty with Mr. Baker’s argument is that he is still unable to identify

any provision of the Agreement by which the parties allocated the carry-forward to him.

It certainly does not follow that by failing to schedule the carry-forward on Exhibit C, Ms.

Baker conveyed her interest in it to her husband. Nor does the failure to schedule the

asset transform it into an interest “in” the investment accounts, within the meaning of

section 19.02. In any event, the purpose of section 31 is not to allocate an asset to one

spouse or another, but to ensure that the parties have not concealed assets from each

other. The carry-forward, however, was not concealed from either spouse, but had been

“revealed” to both of them in their previous tax return.




       4
        Section 25 is, however, notable in its use of the broader prepositional phrases,
such as “with respect to” and “arising out of,” which section 19.02 does not employ.

                                            -14-
       Finally, Mr. Baker cites the Agreement’s “Explanatory Statement,” which provides

that the parties “desire to . . . settle all questions of maintenance, support, custody,

alimony, counsel fees, their respective rights in the property or estate of the other, in

property owned by them jointly or as tenants by the entireties, and in marital property, and

all other matters of every kind and character arising from their marital relationship.” In

view of this prefatory language, Mr. Baker argues that it would be anomalous to conclude

that the parties failed to address the carry-forward and failed to allocate it to him in

section 19.02. We disagree.

       The Explanatory Statement is merely a recital and is not formally incorporated into

the Agreement itself. As such, it may speak to the parties’ intentions, but not to what they

actually did. To determine what the parties did, we look not to the recitals, but to the

operative part of the Agreement itself. See Pulaski v. Riland, 199 Md. 426, 431 (1952)

(court “must look to the operative part of the agreement,” not to the recitals, “to find out

what the parties actually did”); accord Dominion Cove, 216 Md. App. at 339-42. Under

the operative part of the Agreement, section 19.02, the parties unambiguously did not

allocate the capital-loss carry-forward to Mr. Baker, because it was not an interest “in”

the jointly-titled investment accounts. Nonetheless, even if we gave effect to the recital,

the parties could still have “settle[d] all questions” concerning the carry-forward without

expressly addressing it in the Agreement, because the Treasury regulations dictate what

happens to the asset absent an agreement to the contrary.



                                              -15-
II.    The Remaining Issues

       Because we hold that the Agreement unambiguously does not allocate the capital-

loss carry-forward to Mr. Baker, we need not address Ms. Baker’s alternative contention,

that the Agreement is ambiguous. Additionally, because we hold that Ms. Baker was

entitled to prevail, as a matter of law, under the unambiguous terms of the parties’

express, written agreement, we also hold that Mr. Baker cannot resurrect the unjust

enrichment claim, which the circuit court dismissed as moot. See Cnty. Comm’rs of

Caroline Cnty. v. Dashiell, 358 Md. 83, 96 (2000) (no quasi-contractual claim can arise

when a contract exists between the parties on the same subject matter).

                                                   JUDGMENT OF THE CIRCUIT
                                                   COURT FOR ANNE ARUNDEL
                                                   COUNTY REVERSED. CASE
                                                   REMANDED WITH DIRECTIONS
                                                   TO ENTER SUMMARY
                                                   JUDGMENT IN FAVOR OF
                                                   APPELLANT AND FOR FURTHER
                                                   PROCEEDINGS CONSISTENT
                                                   WITH THIS OPINION. COSTS TO
                                                   BE PAID BY APPELLEE.




                                            -16-
