Angelos v. First Interstate Bank of Utah

Decision Date16 September 1983
Docket NumberNo. 18001,18001
Citation671 P.2d 772
PartiesGus G. ANGELOS, Plaintiff, Respondent and Cross-Appellant, v. FIRST INTERSTATE BANK OF UTAH, a Utah banking corporation, aka Walker Bank & Trust Company, et al., Defendant, Appellant and Cross-Respondent, v. Michael T. RUSSELL, Defendant, Respondent, Co-Appellant and Cross-Respondent.
CourtUtah Supreme Court

Michael R. Murphy, Salt Lake City, for defendant, appellant and cross-respondent.

Keith W. Meade, Claron Spencer and James Brown, Salt Lake City, for plaintiff, respondent and cross-appellant.

DURHAM, Justice:

This is an appeal from a judgment awarding damages to the plaintiff Dr. Gus G. Angelos against the defendants First Interstate Bank of Utah (hereafter the "Bank"), Michael T. Russell, and Rosemary McCormick. Based on the jury's special verdict, the trial court found that the defendants were jointly and severally liable to Dr. Angelos for damages resulting from McCormick's embezzling of Dr. Angelos' monies, forging of his endorsement on checks from his patients, and depositing of them into her personal account with the Bank. Dr. Angelos, the Bank and Russell appeal the decision of the trial court. We affirm in part, reverse in part, and remand the case to the trial court for further proceedings.

Prior to 1967, Dr. Angelos practiced orthodontics in California. McCormick was a chairside assistant who worked in the office where Dr. Angelos practiced. In anticipation of the relocation of his office to Salt Lake City, Dr. Angelos invited McCormick to work for him there.

In 1967, Dr. Angelos opened his dental office in Salt Lake City, with McCormick as his receptionist, assistant and bookkeeper. Shortly thereafter, Dr. Angelos opened a business bank account at the Bank's Sugarhouse branch and authorized McCormick to deposit checks which he had endorsed into that account. Dr. Angelos' bookkeeping system consisted of three parts: a receipt book, a patient ledger card and a daily production sheet. The system was designed to permit carbon paper to be inserted between the three documents so that one entry of a payment by a patient would be relfected on all three documents. Occasionally, Dr. Angelos asked McCormick to record a patient's payment on the patient's ledger card only, and to omit recording it on the daily production sheet. This procedure would give Dr. Angelos income which would not be reflected on the daily production sheet and would not be easily detected from his records. As early as 1967, McCormick began taking cash from Dr. Angelos' receipts and/or "borrowing" money from petty cash. Thereafter, McCormick, using Dr. Angelos' method to circumvent the accounting system, took some of the patient's checks, forged Dr. Angelos' endorsement and deposited them in her own personal account at the Bank's Sugarhouse branch.

Early in 1968, McCormick met and began dating Russell. On May 2, 1969, McCormick married Russell, which marriage terminated in divorce on June 18, 1971. During the period from 1971 to June of 1977, McCormick and Russell maintained an amicable relationship and purchased several investment properties together. In purchasing these properties, Russell usually advanced the down payment and secured the financing, while McCormick usually made the monthly payments out of the funds in her Sugarhouse account. During that period, McCormick also wrote a number of checks on her Sugarhouse account directly to Russell or for his benefit. Although Russell never forged Dr. Angelos' endorsement on the back of any check, two checks bearing Dr. Angelos' forged endorsement were deposited directly into Russell's personal account at the Bank. In July of 1977, McCormick married Frederick McCormick and continued to embezzle funds from Dr. Angelos, but ceased sharing the monies with Russell. Finally, in September of 1978, Dr. Angelos discovered McCormick's embezzlement scheme.

On October 3, 1978, Dr. Angelos filed suit against McCormick in the Second Judicial District Court to recover the embezzled funds. Subsequently, on a writ of attachment, Dr. Angelos seized her bank account, recovering $6,020.96. On October 13, 1978, while the suit against McCormick was still pending, Dr. Angelos filed suit against Russell in the Third Judicial District Court to recover the monies Russell had received from McCormick or that were used for his benefit. On March 30, 1979, Dr. Angelos amended his complaint to add McCormick and the Bank as defendants, alleging that the Bank had wrongfully accepted checks bearing a forged endorsement. The Bank cross-claimed against McCormick for breach of warranty on the checks and against Russell for his wrongful and/or fraudulent conduct in inducing McCormick to breach those warranties.

At the conclusion of trial on August 7, 1980, the jury returned a Special Verdict which found: (1) that Dr. Angelos, as a reasonably prudent businessman, knew or reasonably should have known of the embezzlement by McCormick before March of 1975 and before September of 1978; 1 (2) that the Bank did not act in accordance with reasonable commercial banking practices in handling the checks presented to it by McCormick; (3) that prior to May of 1975 the Bank knew or should have known that Dr. Angelos' endorsements on the checks presented by McCormick were forged; (4) that Dr. Angelos' conduct in handling his business affairs did not substantially contribute to McCormick's embezzlement and did not induce the Bank to negotiate the embezzled checks; (5) that Russell knew of the embezzlement and received embezzled funds for which he failed to give reasonable consideration; and (6) that Russell directed, encouraged or requested McCormick to embezzle from Dr. Angelos with the intent of benefiting himself from McCormick's wrongful conduct and did in fact benefit to the loss or detriment of Dr. Angelos. On July 21, 1980, the trial court, pursuant to the Special Verdict, entered judgments for Dr. Angelos on his claims against the Bank, McCormick and Russell. The trial court granted a default judgment against McCormick on the Bank's cross-claim, but denied the Bank's cross-claim against Russell. Dr. Angelos, Russell and the Bank appeal the trial court's ruling.

This appeal involves two sets of claims: (1) Dr. Angelos' claims against the Bank and Russell and (2) the Bank's claims against Russell. With respect to Dr. Angelos' claims, Dr. Angelos argues that the trial court erred in applying the four-year statute of limitations found in U.C.A., 1953, §§ 78-12-1 & -25 to limit his recovery. Dr. Angelos also appeals the trial court's determination of damages. The Bank claims that the trial court erred in granting judgment against it because Dr. Angelos' claims are barred by the doctrines of waiver, estoppel, laches, and avoidable consequences. Russell claims error by the trial court because Dr. Angelos' claims are barred by the doctrines of avoidable consequences and election of remedies. With respect to the Bank's claims against Russell, the Bank argues that the trial court erred in ruling that Russell had no liability to the Bank for the embezzled monies he received from McCormick. In reply to the Bank's contention, Russell argues that the Bank's claims are barred by the doctrine of avoidable consequences. We address the issues in the above order.

Dr. Angelos' Claims

On appeal, Dr. Angelos' first claim is that the trial court erred in applying the four-year statute of limitations contained in U.C.A., 1953, §§ 78-12-1 & -25, rather than the unlimited statute of limitations contained in U.C.A., 1953, § 78-12-34 (1977) (repealed July 1, 1981, 1981 Utah Laws ch. 16, § 1). Section 78-12-34 provided that there was no statute of limitations barring recovery by one who has deposited money with a financial institution:

To actions brought to recover money or other property deposited with any bank, trust company or savings or loan corporation, association or society there is no limitation.

Id. (emphasis added). By the express terms of the statute and the decisions of this Court, § 78-12-34 has been held to apply only where the cause of action arises out of a plaintiff's relation as a "depositor" with the bank. See, e.g., Esponda v. Ogden State Bank, 75 Utah 117, 283 P. 729 (1929); Verdi v. Helper State Bank, 57 Utah 502 196 P. 225 (1921); Larsen v. Utah Loan & Trust Co., 23 Utah 449, 65 P. 208 (1901). But see Strong v. Missouri-Lincoln Trust Co. of St. Louis, Mo.App., 263 S.W. 1038 (1924). To hold that Dr. Angelos is a "depositor" by reason of McCormick's forging of his endorsement and depositing of the checks into her own personal account would be to contort the plain meaning of the term "deposited" as it is used in § 78-12-34. There are no Utah cases which support such an anomalous application. Moreover, the policy behind § 78-12-34 is to protect persons who have deposited money in a bank account from being barred from claiming that money years later. We find no policy consideration that would justify bringing the present case within the purview of that statute. We therefore hold that Dr. Angelos is not a "depositor" within the meaning of § 78-12-34, and thus, the trial court was correct in applying the four-year statute of limitations contained in U.C.A., 1953, §§ 78-12-1 & -25. 2

In Dr. Angelos' second point on appeal, he claims that the trial court erred in its award of damages because it did not consider all of the available evidence. Because of the numerous documents and the absence of "all" of the Bank's records of McCormick's account, the parties agreed, pursuant to a motion made in chambers and during trial, that the extent of Dr. Angelos' loss would be decided by a master if liability were found to exist. Now that liability has been found to exist, if Dr. Angelos can provide additional evidence that has not been previously considered by the trial court, he is entitled to a determination of the amount of his losses in light of that additional evidence. We...

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