DeLuca v. BancOhio Natl. Bank, Inc.

• Decision Date: 23 May 1991
• Docket Number: No. 90AP-1181,90AP-1181
• Citation: 598 N.E.2d 781,74 Ohio App.3d 233
• Parties: , 19 UCC Rep.Serv.2d 216 DeLUCA et al., Appellants, v. BANCOHIO NATIONAL BANK, INC., Appellee; Rotondo et al., Appellees.
• Court: Ohio Court of Appeals

Page 233

74 Ohio App.3d 233

598 N.E.2d 781, 19 UCC Rep.Serv.2d 216

DeLUCA et al., Appellants, v. BANCOHIO NATIONAL BANK, INC., Appellee; Rotondo et al., Appellees.

No. 90AP-1181.

Court of Appeals of Ohio, Tenth District, Franklin County.

Decided May 23, 1991.

Steven E. Hillman, Portsmouth, for appellants.

Vorys, Sater, Seymour & Pease, F. James Foley and Nelson A. Raust, Columbus, for appellee BancOhio Nat. Bank, Inc.

PETREE, Judge.

This is an appeal from a judgment of the Franklin County Common Pleas Court, which granted a directed verdict for defendant BancOhio National Bank. ¹ Plaintiffs Carolyn J. DeLuca and her daughter Jacqueline M. DeLuca assert two assignments of error:

"I. The trial court erred in that it should have granted the plaintiffs' motion for summary judgment.

"II. The trial court erred in granting the appellee's motion for a directed verdict."

This case involves a dispute over a $75,000 check allegedly given to Carolyn DeLuca on Friday, January 27, 1989 by decedent, Joseph G. Rotondo. At the time, decedent was a seventy-eight-year-old practicing attorney and Carolyn DeLuca was his secretary.

On Friday, January 27, 1989, decedent, who for years had suffered from emphysema, heart problems, and other ailments, felt very ill. He called Carolyn in the morning to take him to the hospital. They stopped first at his office. Despite his discomfort, he signed several blank payroll checks that were on his desk. Before they left for the hospital, decedent told Carolyn, who usually did the payroll banking, that he had one check for her in his desk.

At the hospital, decedent was treated in the emergency room. Carolyn remained with him and eventually her daughter Jacqueline arrived as well. Further, decedent's son, Eric P. Rotondo, also visited. Eric is an attorney practicing law in the same office as his father. Earlier that morning, Eric had seen the blank checks on his father's desk and had overheard his father's comment about a check left for Carolyn.

Carolyn was at decedent's side in his hospital room. At one point, she maintained that decedent told her that he wanted to pay her debts and asked her how much she needed. She told him that her debts were $75,000. So decedent told her that if anything happened to him, she was to take the blank check in his desk and fill it in for that amount. No one else was present to hear this conversation.

Carolyn remained at the hospital until decedent died at 4:46 p.m. on Friday the 27th. The certificate of death indicates that decedent died of natural causes.

After decedent died, Carolyn returned to decedent's office to pick up some personal items, finish the payroll, and pick up her check. Subsequently, she went home.

Eric remained at the hospital to make funeral arrangements. When he returned to the law office, he noticed that the payroll checks were properly in their envelopes, except that one was missing.

Eventually, Carolyn filled in the blank check as decedent had instructed. She filled in her name as payee, the amount of $75,000, and the date. She then went to the Bexley branch of BancOhio with Jacqueline on Saturday, January 28, 1989. She presented the check to the next available teller, Kathleen R. Miller, who in fact was head teller. Carolyn indicated that she needed the funds deposited in her BancOhio account. After some discussion about the availability of the funds to pay bills, Miller told Carolyn that the funds would be available on the next banking day. Miller then deposited $75,000 into plaintiffs' account.

Thereafter, Eric, who is co-executor of his father's estate, learned about the transaction at BancOhio. He consulted an attorney who filed for an ex parte temporary restraining order ("TRO") on Monday, January 30, 1989 to stop payment on the check and the transfer of any funds. After the trial court granted this relief, the TRO was presented to BancOhio on Monday afternoon.

The bank then dishonored the check, removed a provisional credit from plaintiffs' account, recredited decedent's account, and returned the check to Carolyn with a stamp on it and an explanation that the check had been dishonored due to the TRO. Decedent's estate was then able to withdraw the $75,000 for the benefit of the estate.

Plaintiffs filed suit on March 22, 1989, alleging that BancOhio removed $75,000 from their joint bank account without authority to do so and refused to repay the funds. Both parties filed motions for summary judgment, but the trial court overruled them. At trial, at the close of plaintiffs' case, BancOhio orally moved for a directed verdict and the trial court granted it.

In findings of fact and conclusions of law the court wrote that BancOhio obeyed the TRO and dishonored the check. The court acknowledged that Carolyn " * * * took the check to defendant's Bexley branch to deposit the funds in plaintiffs' savings account. * * *" But the court found that Carolyn did not inform the bank that the maker of the check was dead nor that she had completed the check " * * * by naming herself as payee and by inserting the amount of $75,000." The court concluded that the check was "* * * invalid, payment was properly denied, and the account of plaintiffs' was properly debited."

In their assignments of error, plaintiffs argue that BancOhio cashed the $75,000 check on Saturday and could not thereafter undo such final payment.

At the outset, we note that motions for directed verdict and motions for summary judgment are similar in that " * * * [i]n each instance, the evidence is construed most strongly in favor of the party against whom the motion is directed and the motion must be overruled unless from the evidence so construed reasonable minds could reach no other conclusion but that, under the applicable law, the movant is entitled to a judgment in his favor." Rayburn v. J.C. Penney Outlet Store (1982), 3 Ohio App.3d 463, 463-464, 3 OBR 544, 544, 445 N.E.2d 1167, 1168. However, "[m]otions for directed verdict and summary judgment directed against the plaintiff differ as to which party bears the risk of loss for not presenting evidence on all material determinative issues. A motion for directed verdict will be sustained if the plaintiff has not presented evidence on all such issues; whereas, a motion for summary judgment will be sustained only if the defendant presents evidence on all material determinative issues." Id. at syllabus.

In the first assignment of error, plaintiffs claim that summary judgment should have been granted in their favor. They submitted affidavits from Carolyn and Jacqueline DeLuca, documentary evidence arising from the check transaction, and depositions to establish that the bank cashed the check, which they argued was valid in every respect. By contrast, BancOhio submitted affidavits and other evidence to establish that Carolyn only deposited the check, which allowed the bank to revoke any provisional credit granted prior to its so-called midnight deadline. Because the submitted evidence was in dispute on material issues of fact, the trial court was correct in denying summary judgment to plaintiffs.

Consequently, plaintiffs' first assignment of error is not well taken.

In the second assignment of error, plaintiffs reiterate their argument that the check was cashed, but they now do so with respect to the verdict directed against them.

At trial, plaintiffs called two witness. The first witness was head teller Kathleen Miller. She testified that Carolyn DeLuca presented the check in question to her for payment on Saturday morning, January 28th. The bank was open until 1:00 p.m. that day. At the time, Carolyn had over $47,000 in her own BancOhio savings account.

Initially, Carolyn presented a deposit slip to Miller indicating a deposit of the $75,000 check. After Carolyn asked about the availability of the funds to pay her bills, Miller indicated that she would have to check with her supervisor, Charlotte Rebecca ("Becky") Black, because of the amount of the check. Miller asked Black if she could show the check as being an all-cash deposit into plaintiffs' account, since the check was a BancOhio check. After checking decedent's account for sufficient funds, Black initialed the check and authorized the transaction. The deposit slip was changed to reflect a $75,000 deposit of "Currency" and the check-deposit indication was scratched out. Miller then electronically debited the Rotondo account and electronically credited plaintiff's account. It is undisputed that no money ever changed hands over the counter.

Miller testified that, as far as her Multikey terminal was concerned, the check was cashed. Indeed, the deposit slip was printed and coded to reflect an "04" sort, which is a bank sort for checks that have been cashed. The check itself contains two strips of printed code, one of which indicates the transaction type as being a "CSH CK."

Miller also identified a BancOhio publication sent to depositors. This publication, entitled "Your Ability to Withdraw Funds," indicates that for deposits by check, special rules apply. It further states that: "If you will need the funds from a deposit right away, you should ask us when the funds will be available."

Plaintiffs' second witness was Becky Black, Miller's supervisor who was in charge of bank operations on the day in question. She did not have any specific knowledge of the transaction in question, but she identified her initials on the check and said that she always reviews large checks and initials them.

Given these facts, BancOhio argues that plaintiffs failed to establish that the bank made final payment on the check. Rather, BancOhio argues that it only provisionally credited Carolyn's account. BancOhio therefore argues that it had until its midnight deadline on Tuesday to revoke the provisional credit on account of its receipt of the TRO on Monday.

The issue presented is whether there was sufficient evidence to establish that final payment was made...