Gollihue v. Nat'l City Bank, No. 11AP–150.

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtFRENCH
Citation2011 -Ohio- 5405,969 N.E.2d 1233
Decision Date20 October 2011
Docket NumberNo. 11AP–150.
PartiesGOLLIHUE, Appellant, v. NATIONAL CITY BANK, Appellee.

969 N.E.2d 1233
2011 -Ohio- 5405

GOLLIHUE, Appellant,
v.
NATIONAL CITY BANK, Appellee.

No. 11AP–150.

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

Decided Oct. 20, 2011.



Michael T. Gunner, Hilliard, for appellant.

Vorys, Sater, Seymour & Pease L.L.P., and Daren S. Garcia, Columbus, for appellee.


FRENCH, Judge.

{¶ 1} Plaintiff-appellant, Tom Gollihue, appeals the Franklin County Court of Common Pleas entry of summary judgment in favor of defendant-appellee, National City Bank (“NCB”). For the following reasons, we reverse the trial court's judgment.

{¶ 2} This case arises from allegedly unauthorized withdrawals from Gollihue's savings account with NCB. Gollihue opened the account on January 17, 2004, at which time he signed a consumer signature card and received a copy of the personal account agreement that governed the account. By signing the consumer signature card, Gollihue acknowledged receipt of the

[969 N.E.2d 1234]

account agreement and consented to be bound by its terms.

{¶ 3} Prior to opening the account, Gollihue had discovered that his wife, Patricia, had opened numerous credit card accounts and, to support a gambling habit, had accumulated over $100,000 in credit card debt in both of their names. As a result, Gollihue closed the couple's joint savings account and opened a new account solely in his name, using the remaining balance from the joint savings account as an initial deposit. Gollihue maintains that NCB assured him that Patricia would not be allowed to make withdrawals from the account. In February and March 2004, Gollihue withdrew $5,660 from the account to pay the remaining credit card balances that Patricia had accumulated, but Gollihue did not make any further withdrawals from the account. As of April 1, 2004, the account balance was $15,683.40.

{¶ 4} In compliance with its obligations under the account agreement, NCB mailed periodic statements of account activity to Gollihue's home address. Gollihue does not dispute that NCB mailed the statements, but he did not recall receiving them. After Patricia's death on February 23, 2007, Gollihue discovered that Patricia had been hiding bills and mail from him. Gollihue suggested that Patricia had intercepted and hidden the NCB account statements. Gollihue conceded that he never reviewed the account statements and testified that he did not check the account “because they told me [Patricia] couldn't touch it.”

{¶ 5} Shortly after Patricia's death, Gollihue and his daughter visited the NCB branch in London, Ohio, and while there, they inquired about the balance in the account. They learned that Patricia had depleted the account balance by presenting withdrawal slips, purportedly signed by Gollihue, to NCB. Gollihue told the NCB branch manager that the withdrawals had been unauthorized and that the bank had made a mistake in allowing Patricia to withdraw funds from the account. He claims that the branch manager admitted a mistake by the bank but disclaimed liability, telling Gollihue it was “[his] problem now.” Gollihue's daughter ordered the branch manager to “make it right.” According to Gollihue, he discovered the withdrawn funds in February 2007, after Patricia's death.

{¶ 6} Gollihue claims that Patricia made 32 unauthorized withdrawals from the account between June 29 and November 29, 2006, totaling $15,925. Each withdrawal is reflected on the account statements, which also included copies of 29 withdrawal slips, each of which Gollihue claims bears a forged signature. After February 2007, Gollihue had no further conversations with anyone at NCB, did not write to NCB, and did not personally do anything further with respect to having the withdrawn funds restored, prior to filing this action.

{¶ 7} Gollihue initiated this action on November 25, 2009, by filing a complaint against NCB in the Franklin County Court of Common Pleas. Gollihue alleged that NCB had permitted Patricia to make unauthorized withdrawals totaling approximately $16,000 from the account, in contravention of the terms of the account agreement. He also alleged that NCB was negligent in permitting Patricia to withdraw funds from the account. Gollihue seeks relief only in the amount of the withdrawn funds.

{¶ 8} On December 1, 2010, NCB filed a motion for summary judgment, which the trial court granted on January 19, 2011. The trial court concluded that any claim for breach of contract was barred by Gollihue's failure to act within a valid and reasonable contractual-limitations period established in the account agreement.

[969 N.E.2d 1235]

The trial court also concluded that Gollihue's contract claims were barred by R.C. 1304.35(F), which precludes a bank customer from asserting unauthorized signatures or alterations against the bank when the customer does not discover and report the unauthorized signatures or alterations within one year after the statements or items are made available to the customer. The court further concluded that Gollihue could not maintain a tort claim against NCB because the parties' rights and duties are governed by contract and because a tort claim would be barred by the economic-loss rule. Finally, the court determined that Gollihue's complaint did not state a tort claim of bad faith because independent bad-faith claims may exist only in insurance-coverage disputes. The trial court entered final judgment in favor of NCB on January 28, 2011.

{¶ 9} Gollihue filed a timely notice of appeal and raises the following assignments of error:

1. The trial court erred in finding that R.C. § 1304.35(F) is a one year statute of limitations or that there is a one year limitation to bring suit[.]

2. The trial court erred in finding that [Gollihue's] claims are barred because of the failure to timely notify [NCB.]

3. The trial court erred in finding that bad faith claims are limited to claims against insurance companies[.]

{¶ 10} We review a summary judgment de novo. Koos v. Cent. Ohio Cellular, Inc. (1994), 94 Ohio App.3d 579, 588, 641 N.E.2d 265, citing Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, 622 N.E.2d 1153. This court applies the same standard as the trial court and conducts an independent review, without deference to the trial court's determination. Maust v. Bank One Columbus, N.A. (1992), 83 Ohio App.3d 103, 107, 614 N.E.2d 765;Brown at 711, 622 N.E.2d 1153. We must affirm the trial court's judgment if any grounds the movant raised in the trial court support it. Coventry Twp. v. Ecker (1995), 101 Ohio App.3d 38, 41–42, 654 N.E.2d 1327.

{¶ 11} Pursuant to Civ.R. 56(C), summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Accordingly, summary judgment is appropriate only under the following circumstances: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds can come to but one conclusion, that conclusion being adverse to the nonmoving party. Harless v. Willis Day Warehousing Co. (1978), 54 Ohio St.2d 64, 66, 375 N.E.2d 46.

{¶ 12} “[T]he moving party bears the initial responsibility of informing the trial court of the basis for the motion, and identifying those portions of the record before the trial court which demonstrate the absence of a genuine issue of fact on a material element of the nonmoving party's claim.” Dresher v. Burt (1996), 75 Ohio St.3d 280, 292, 662 N.E.2d 264. Once the moving party meets its initial burden, the nonmovant must set forth specific facts demonstrating a genuine issue for trial. Id. at 293, 662 N.E.2d 264. Because summary judgment is a procedural device to terminate litigation, courts should award it cautiously after resolving all doubts in favor of the nonmoving party. Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 358–59, 604 N.E.2d 138, quoting

[969 N.E.2d 1236]

Norris v. Ohio Std. Oil Co. (1982), 70 Ohio St.2d 1, 2, 433 N.E.2d 615.

{¶ 13} In his first assignment of error, Gollihue argues that the trial court erred by finding that R.C. 1304.35(F) and the account agreement both establish one-year limitations on the time to bring an action against NCB. R.C. 1304.35(F) states, “Without regard to care or lack of care of either the customer or the bank, a customer who does not within one year after the statement or items are made available to the customer discover and report his unauthorized signature on or any alteration on the item is precluded from asserting against the bank the unauthorized signature or alteration.” As relevant to Gollihue's claims, the account agreement provides:

Depositor's Duties and Liabilities

Depositor agrees to examine each statement (and enclosures) and any Account information provided to discover any alterations; unauthorized signatures, Items, Entries or indorsements; unauthorized transactions; or errors, and Depositor agrees to notify Bank in writing thereof without delay. If Depositor fails to meet any of the requirements of the previous sentence:

* * *

• within 60 calendar days after the statement or Account information was mailed or otherwise made available, Depositor shall be precluded from asserting against Bank any unauthorized signature, Item or Entry, or any alteration, without regard to Bank's care or lack of care.

If Depositor fails to notify Bank in writing of any claim within one year after such claim accrues, Depositor shall be precluded from asserting such claim.

According to the account agreement, a statement is “made available” when it is mailed to a depositor's last known address, as shown on bank records.


{¶ 14} The trial court found that because Gollihue “did not file...

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    ...not bar the action for breach of contract brought against a party that had actual notice. Gollihue v. Natl. City Bank , 2011-Ohio-5405, 969 N.E.2d 1233, ¶ 22 (10th Dist.2011) ; see also Roger J. Au & Son, Inc. v. N.E. Ohio Regional Sewer Dist. , 29 Ohio App.3d 284, 504 N.E.2d 1209 (8th Dist......
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    ...law. See, e.g., Stonehenge Land Co. v. Beazer Homes Invs., LLC, 893 N.E.2d 855, 863 (Ohio Ct. App. 2008); Gollihue v. Nat'l City Bank, 969 N.E.2d 1233, 1238 (Ohio Ct. App. 2011); Daniel E. Terreri & Sons v. Bd. of Mahoning Cty. Comm'rs, 786 N.E.2d 921, 932 (Ohio Ct. App. 2003). 1. InspireMD......
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    ...in some circumstances, courts will not strictly enforce contractual language requiring notice in writing.” [Gollihue v. Nat'l City Bank, 969 N.E.2d 1233, 1238 (Ohio Ct.App.2011).] In those cases, a failure to provide notice according to the terms of the contract may not preclude recovery on......
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    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 3 Julio 2019
    ...law. See, e.g., Stonehenge Land Co. v. Beazer Homes Invs., LLC, 893 N.E.2d 855, 863 (Ohio Ct. App. 2008); Gollihue v. Nat'l City Bank, 969 N.E.2d 1233, 1238 (Ohio Ct. App. 2011); Daniel E. Terreri & Sons v. Bd. of Mahoning Cty. Comm'rs, 786 N.E.2d 921, 932 (Ohio Ct. App. 2003). 12. The word......
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11 cases
  • MRI Software, L.L.C. v. W. Oaks Mall FL, L.L.C., No. 105846
    • United States
    • United States Court of Appeals (Ohio)
    • 7 Junio 2018
    ...not bar the action for breach of contract brought against a party that had actual notice. Gollihue v. Natl. City Bank , 2011-Ohio-5405, 969 N.E.2d 1233, ¶ 22 (10th Dist.2011) ; see also Roger J. Au & Son, Inc. v. N.E. Ohio Regional Sewer Dist. , 29 Ohio App.3d 284, 504 N.E.2d 1209 (8th Dist......
  • Medpace, Inc. v. Inspiremd, Inc., CIVIL ACTION NO. 1:16-cv-830 (WOB-SKB)
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 8 Marzo 2019
    ...law. See, e.g., Stonehenge Land Co. v. Beazer Homes Invs., LLC, 893 N.E.2d 855, 863 (Ohio Ct. App. 2008); Gollihue v. Nat'l City Bank, 969 N.E.2d 1233, 1238 (Ohio Ct. App. 2011); Daniel E. Terreri & Sons v. Bd. of Mahoning Cty. Comm'rs, 786 N.E.2d 921, 932 (Ohio Ct. App. 2003). 1. InspireMD......
  • Tri-City Assocs., LP v. Belmont, Inc., No. 26755.
    • United States
    • Supreme Court of South Dakota
    • 16 Abril 2014
    ...in some circumstances, courts will not strictly enforce contractual language requiring notice in writing.” [Gollihue v. Nat'l City Bank, 969 N.E.2d 1233, 1238 (Ohio Ct.App.2011).] In those cases, a failure to provide notice according to the terms of the contract may not preclude recovery on......
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    ...law. See, e.g., Stonehenge Land Co. v. Beazer Homes Invs., LLC, 893 N.E.2d 855, 863 (Ohio Ct. App. 2008); Gollihue v. Nat'l City Bank, 969 N.E.2d 1233, 1238 (Ohio Ct. App. 2011); Daniel E. Terreri & Sons v. Bd. of Mahoning Cty. Comm'rs, 786 N.E.2d 921, 932 (Ohio Ct. App. 2003). 12. The word......
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