Florida Federal Sav. & Loan Ass'n v. Martin
| Decision Date | 19 June 1981 |
| Docket Number | No. 80-2317,80-2317 |
| Citation | 400 So.2d 151 |
| Court | Florida District Court of Appeals |
| Parties | 33 UCC Rep.Serv. 1427 FLORIDA FEDERAL SAVINGS & LOAN ASSOCIATION, Appellant, v. E. Snow MARTIN, E. Snow Martin, Jr., and Michael D. Martin, individually andMartin & Martin, a partnership, Appellees. |
Michael J. Keane of Greene, Mann, Rowe, Stanton, Mastry & Burton, St. Petersburg, for appellant.
Dennis P. Johnson of Law Office of Knowlton H. Shelnut, Jr., Lakeland, for appellees.
Michael D. Martin sued Florida Federal Savings & Loan Association alleging that it breached its deposit agreement with him by charging his account on the basis of his secretary's forgeries. Florida Federal defended on grounds that Martin had authorized his secretary to act as his agent, that his negligence contributed to the forgeries, and that his failure to inspect his monthly statements and give timely notice of the forgeries barred his recovery. The trial court entered summary judgment for Martin. We reverse.
Martin is a partner in a law firm in Lakeland. About May 1, 1978, Martin's firm hired Carolyn Tozzer to do general legal secretarial work. Her duties included handling banking transactions for the firm and for Martin, individually. Martin maintained an individual password account at Florida Federal. In this type of account a secret password is required before a person is permitted to withdraw money from the account. Martin had introduced Tozzer to Florida Federal's safe deposit personnel so that she could store and retrieve clients' wills from the firm's safe deposit boxes. In addition, Tozzer routinely handled other law firm business with Florida Federal. However, the parties dispute whether Tozzer had obtained Martin's password to his individual account, and if so, from whom, and whether Florida Federal had ever verified her authority to withdraw funds from Martin's account.
Shortly after she was employed, Tozzer began signing Martin's name to savings withdrawal slips on his individual account at Florida Federal. She would obtain cashiers checks payable to Martin, forge Martin's endorsement and either cash or deposit the checks at another financial institution. Some rather involved banking transactions then ensued and, ultimately, Florida Federal received and paid the checks and charged them against Martin's account. Florida Federal furnished Martin with monthly statements of his account; however, it did not furnish him the withdrawal slips and teller checks which Tozzer signed until he notified Florida Federal that he suspected a forgery. Martin contended that he sustained a loss of $11,200 before he discovered a forged check on October 18 which prompted him to make a detailed review of his account. Shortly thereafter he initiated this action against Florida Federal.
Martin and Florida Federal each moved for summary judgment. The court heard Florida Federal's motion first and denied it. Subsequently, the court heard Martin's motion. At the hearing it became apparent that Florida Federal had filed opposing affidavits together with a notice of filing three days before. While Florida Federal served a copy of the notice of filing on Martin, it failed to include copies of the affidavits. Thus, prior to the hearing Martin had not received copies of those affidavits. On this basis Martin objected to the court considering them. The court did not rule on the objection, but did have the affidavits read aloud. The affidavits were from two of Florida Federal's tellers, Patricia Roe and Shirley Wheeler. Each stated that she recognized Tozzer as an employee of Martin's law firm and had handled numerous banking transactions including check cashing, deposits and withdrawals on behalf of the law firm as well as in respect to Martin's individual account with Florida Federal. Wheeler stated that to her knowledge the first time Tozzer requested her to cash a check for Martin, she telephoned Martin's law office to verify that Tozzer was employed by the firm and had authority to make the particular withdrawal. Roe stated that when she first handled a transaction for Tozzer on Martin's behalf, she checked the signature and...
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