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Tom Gollihue v. National City Bank

October 20, 2011

TOM GOLLIHUE, PLAINTIFF-APPELLANT,
v.
NATIONAL CITY BANK,
DEFENDANT-APPELLEE.



APPEAL from the Franklin County Court of Common Pleas. (C.P.C. No. 09CVH-11-17657)

The opinion of the court was delivered by: French, J.

Cite as Gollihue v. Natl. City Bank,

(REGULAR CALENDAR)

DECISION

{¶1} Plaintiff-appellant, Tom Gollihue ("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 (the "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 ("Account Agreement") that governed the account. By signing the Consumer Signature Card, Gollihue acknowledged receipt of the 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 had accumulated over $100,000 in credit card debt in both of their names to support a gambling habit. 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 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." (Gollihue Deposition at 19.)

{¶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 Deposition at 29, 30; Gollihue Affidavit at ¶7.)

Gollihue's daughter ordered the branch manager to "make it right." (Gollihue Deposition at 31.) 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 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. 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. ยง1304.35 (F) IS A ONE YEAR STATUTE OF LIMITATIONS OR THAT THERE IS A ONE ...


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