Trubatch v. Society National Bank9/20/2000
DECISION AND JOURNAL ENTRY
This cause was heard upon the record in the trial court. Each error assigned has been reviewed and the following disposition is made:
Appellant, Janine P. Trubatch, appeals the decision of the Summit County Court of Common Pleas. We affirm in part and reverse in part.
I.
The following are the facts as set forth in the complaint. In 1993, R.G. Smith Realty listed for sale certain real property. S&JC;Investments, Inc. had the record legal title of the real property, and Sally Childs was its statutory agent. Sally and James Childs had formerly held title to the real property. Thomas Davis, III., who was accompanied by Rodney Cox, agreed to purchase the property and signed a purchase agreement with Ms. Childs. This agreement designated R.G. Smith Realty as the escrow agent. Subsequently, Mr. Davis and Ms. Childs agreed to modify the agreement into a lease purchase agreement, which required, in part, Mr. Davis to pay $57,208.04 to Ms. Childs by January 25, 1994. Mr. Davis and Donna Fair Davis, his wife, were permitted to take possession of the residence on October 25, 1993. Mr. Davis failed to pay the amount by January 25, 1994. He and Mr. Cox then committed to wire the $57,208.04 into the escrow account within thirty days. Ms. Davis, a former bank employee, was familiar with the general policy of treating wired funds the same as a cash deposit.
On February 25, 1994, Mr. Cox presented a check for deposit to Ms. Trubatch, a teller for Society National Bank, n.k.a Keybank ("Keybank"). The check was a business check of T.D.R. Associates, drawn on an account at First National Bank, and was made payable to R.G. Smith Realty in the amount of $57,208.04. Ms. Trubatch deposited the funds in R.G. Smith Realty's escrow account at Keybank. The following morning, an agent of R.G. Smith Realty called to confirm that $57,208.04 had been deposited in the escrow account. After learning that the funds were available, R.G. Smith Realty paid Ms. Childs her share of the $57,208.04.
The $57,208.04 check, which Mr. Cox presented to Ms. Trubatch, had been drawn on a closed account at First National Bank. Ms. Trubatch, who had been an employee of Keybank for over eighteen years, was informed by her superiors at Keybank that if R.G. Smith Realty did not return the funds, her employment with Keybank would be terminated. R.G. Smith Realty advised Mr. and Ms. Childs that there was a problem with Mr. Davis' deposit and that Keybank had demanded that R.G. Smith Realty return the $57,208.04. R.G. Smith Realty then requested that Ms. Childs return her share of the $57,208.04. Upon the advice of Mr. Childs, Ms. Childs refused to return the funds to either R.G. Smith Realty or Keybank.
Consequently, Ms. Trubatch was terminated from employment by Keybank.
On March 23, 1995, Ms. Trubatch filed suit against Mr. Ballinger, Ms. Childs, Mr. Childs, Mr. Cox, Mr. Davis, R.G. Smith Realty Company, and Keybank. The complaint alleged civil conspiracy, fraud, unjust enrichment, and wrongful termination. On February 22, 1996, after extensive discovery, Ms. Trubatch dismissed her suit pursuant to Civ.R. 41(A).
On February 18, 1997, Ms. Trubatch re-filed her suit naming Keybank, Ms. Childs, Mr. Childs, Mr. Cox, Mr. Davis, Ms. Davis, T.D.R. Associates, R.G. Smith Realty, and S&JC;Investments, Inc. as defendants. This complaint alleged civil conspiracy, fraud, forgery, violations of Ohio's pattern of corrupt activity statute, and wrongful termination.
On April 23, 1998, after further discovery and appropriate pre-trial motions, the trial court granted the motions to dismiss in favor of Ms. Childs, Mr
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