[Cite as Tsepas v. JPMorgan Chase Bank, 2017-Ohio-1272.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
GEORGE H. TSEPAS : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellant : Hon. John W. Wise, J. : Hon. Craig R. Baldwin, J. -vs- : : JPMORGAN CHASE BANK, N.A. : Case No. 2016CA00177 : Defendant - Appellee : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2015 CV 02471
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 3, 2017
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
STEVEN A. ARMATAS MICHAEL N. UNGAR 7690 Bucknell Circle N.W. DANIELA PAEZ North Canton, Ohio 44720 Ulmer & Berne LLP Skylight Office Tower 1660 West 2nd Street, Suite 1100 Cleveland, Ohio 44113-1448 Stark County, Case No. 2016CA00177 2
Baldwin, J.
{¶1} Plaintiff-appellant George H. Tsepas appeals from the September 8, 2016
Judgment Entry of the Stark County Court of Common Pleas granting summary judgment
in favor of defendant-appellee JPMorgan Chase Bank, N.A.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant George H. Tsepas is a customer of appellee JPMorgan Chase
Bank, N.A. (“Chase”). On or about February 17, 2012, appellant George H. Tsepas signed
a Chase Personal Signature Card for a Chase Plus Savings account ending in 3937. The
Signature Card indicated that the account was a joint account and that the co-owners of
the account were “George H. Tsepas or Marina G. Tsepas or Angela A. Tsepas.” Both
Marina and Angela are appellant’s daughters. The Signature Card contains signatures
for both appellant and Angela A. Tsepas and states that Marina G. Tsepas’s signature
was on file. By signing the Signature Card, appellant agreed to be bound by “the terms
and conditions contained” in the Chase Deposit Account Agreement governing the joint
account.
{¶3} The Chase Deposit Account Agreement provides that ownership of an
account “is determined by the most current signature card.” The Agreement further states,
in relevant part, as follows:
When two or more people are listed as owners of a personal account,
the account is a “joint account” and each owner is a “joint owner.”…
If one joint owner requests that we do not pay items authorized by a different
joint owner, we may restrict the account and refuse to pay all items
(including items authorized by the owners making the request), but we are Stark County, Case No. 2016CA00177 3
not required to do so. If we restrict the account, we may not release the
restriction unless all joint owners agree in writing to remove it. No request
to restrict the account will affect items that we paid before the request. If
we decide not to restrict the account, all joint owners remain responsible for
items subtracted from the account.
Any joint owner may close the account. We may choose whether or
not to act upon other instructions of any joint owners, including adding an
additional owner to the account, without the signature of the other joint
owners. We may also pay all or any part of the funds in the account to a
court or government agency if we receive a garnishment, levy or similar
legal process that identifies any of the joint owners.
{¶4} Appellant, on April 25, 2013, signed the Safe Deposit Box Contract Card for
safe deposit box No. x-xxx-4. By signing the card, appellant agreed to be bound by the
agreements and terms contained in the Safe Deposit Box Lease Agreement. Paragraph
8 of the Safe Deposit Lease Agreement provides, in relevant part, as follows:
Liability of Bank: The Bank has no knowledge of and exercises no
supervision over the box, nor over examination or removal of any of the
property at any time contained in said box. The tenant assumes all risks of
injury of loss or damage of any kind (including but not limited to loss or
damage due to fire, water, other mishap, robbery or burglary) arising out of
the deposit of anything in the box provided the Bank has exercised ordinary
care. Stark County, Case No. 2016CA00177 4
{¶5} On February 2, 2015, appellant executed a Power of Attorney (“POA”)
designating Marina Tsepas as his attorney-in-fact. The POA granted her authorization to
have access to and make withdrawals from or deposits in any safe deposit box that
appellant had access to and, in paragraph 11, to “enter any safe deposit box which I
[appellant] may rent alone or in connection with others, and to place or remove property
to or from said box.” Appellee Chase, in accordance with the same, added Marina Tsepas
as POA to appellant’s safe deposit box.
{¶6} On November 25, 2015, appellant filed a verified complaint against appellee
Chase, asserting claims for breach of fiduciary duty, violations of the Ohio Uniform
Fiduciaries Act and replevin. Appellant, in his complaint, alleged that, on or about January
26, 2015, his daughters, without his knowledge, withdrew $200,000.00 from the savings
account ending in 3937 and transferred the money into two new checking accounts, one
in the name of Angela A. Tsepas and the other in the name of Marina G. Tsepas.
Appellant also alleged that, on or about February 3, 2015, his daughter Marina accessed
his safe deposit box, which he believed might have contained $90,000.00, and that she
may have transferred the contents of such box into a new safe deposit box opened solely
in her own name. In his complaint, appellant also alleged that he executed a Revocation
of the POA on June 4, 2015 and visited the bank on the same day with his attorney and
presented an executed and notarized copy of the POA Revocation to Jeanne Volz,
appellee’s agent, who urged him not to effectuate the POA Revocation. Appellant alleged
that he listened to Volz and that, on June 8, 2015, Marina Tsepas withdrew money from
the account that she had opened in her own name. Stark County, Case No. 2016CA00177 5
{¶7} On May 13, 2016, appellee filed a Motion for Summary Judgment.
Appellant, on June 13, 2016, filed a memorandum in opposition to appellee’s motion and,
on June 15, 2016, filed a Motion for Summary Judgment regarding possession of the
contents of the original safe deposit box. Appellee, on June 28, 2016, filed a reply brief
in support of its Motion for Summary Judgment. Appellant, on July 1, 2016, filed a Motion
for Summary Judgment regarding ownership of the funds deposited in the original savings
account. Appellee, on July 8, 2016, filed a memorandum in opposition to appellant’s
Motion for Summary Judgment regarding the contents of the safe deposit box and
appellant filed a reply to the same on July 13, 2016.
{¶8} Appellee, on July 14, 2016, filed a memorandum in opposition to appellant’s
Motion for Summary Judgment and appellee, on July 27, 2016, filed a reply to the same.
Subsequently, on September 2, 2016, appellant filed a motion seeking leave to file a
surreply brief in opposition to appellee’s reply brief in support of its Motion for Summary
Judgment.
{¶9} As memorialized in a Judgment Entry filed on September 8, 2016, the trial
court granted appellee’s Motion for Summary Judgment and denied appellant’s two
Motions for Summary Judgment.
{¶10} Appellant now appeals from the trial court’s September 8, 2016 Judgment
Entry, raising the following assignments of error on appeal:
{¶11} THE TRIAL COURT COMMITTED ERROR AND ABUSED ITS
DISCRETION BY FAILING TO CONSIDER PLAINTIFF’S SURREPLY BRIEF PRIOR TO
RENDERING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT. Stark County, Case No. 2016CA00177 6
{¶12} THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF’S BREACH OF
FIDUCIARY DUTY CLAIM (COUNT ONE OF THE COMPLAINT) AGAINST
DEFENDANT CHASE.
{¶13} THE TRIAL COURT ERRED WHEN IT FOUND A JOINT SAVINGS
ACCOUNT HAD BEEN CREATED BY AND BETWEEN GEORGE, MARINA AND
ANGELA TSEPAS.
{¶14} THE TRIAL COURT ERRED IN FINDING MARINA TSEPAS WAS
LEGALLY ENTITLED TO REMOVE AND TRANSFER THE CONTENTS OF THE
ORIGINAL SDB INTO HER OWN NAME.
I
{¶15} Appellant, in his first assignment of error, argues that the trial court abused
its discretion in not considering his surreply brief before ruling on appellee’s Motion for
Summary Judgment.
{¶16} We review a trial court's decision to grant or deny a surreply for an abuse
of discretion. First Fin. Servs., Inc. v. Cross Tabernacle Deliverance Church, Inc., 10th
Dist. No. 06AP–404, 2007–Ohio–4274, ¶ 39. An abuse of discretion implies that a trial
court was unreasonable, arbitrary or unconscionable in its judgment. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶17} In the case sub judice, appellee filed a Motion for Summary Judgment on
May 13, 2016. After appellant filed a memorandum in opposition to the same on June 13,
2016, appellee filed a reply brief on June 28, 2016. On September 2, 2016, which was
over two months after appellee filed a reply brief, appellant filed a motion for leave to file
a surreply brief. Appellant, in his motion, argued that appellee, for the first time, argued in Stark County, Case No. 2016CA00177 7
its reply brief that appellant in order to survive summary judgment, had to offer more than
“bare, unsupported assertions contained within a self-serving affidavit…”
{¶18} We find that the trial court did not abuse its discretion because the trial
court’s decision was not arbitrary, unconscionable or unreasonable. Appellant, as is
stated above, filed his motion more than two months after appellee filed its reply brief.
Moreover, we find that appellee did not make a new argument in its reply brief, but merely
responded to appellant’s memorandum in opposition to appellee’s Motion for Summary
{¶19} Based on the foregoing, appellant’s first assignment of error is overruled.
II
{¶20} Appellant, in his second assignment of error, contends that the trial court
erred in granting summary judgment on his breach of fiduciary duty claim against
appellee.
{¶21} Civil Rule 56(C) states, in pertinent part, as follows:
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 of material fact and that the
moving party is entitled to judgment as a matter of law. No evidence or
stipulation may be considered except as stated in this rule. A summary
judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, that reasonable minds
can come to but one conclusion and that conclusion is adverse to the party Stark County, Case No. 2016CA00177 8
against whom the motion for summary judgment is made, that party being
entitled to have the evidence or stipulation construed mostly strongly in the
party's favor. A summary judgment, interlocutory in character, may be
rendered on the issue of liability alone although there is a genuine issue as
to the amount of damages.
{¶22} A trial court should not enter a summary judgment if it appears a material
fact is genuinely disputed, nor if, construing the allegations most favorably towards the
non-moving party, reasonable minds could draw different conclusions from the
undisputed facts. Hounshell v. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311
(1981). When reviewing a trial court's decision to grant summary judgment, an appellate
court applies the same standard used by the trial court. Smiddy v. The Wedding Party,
Inc., 30 Ohio St.3d 35, 36, 506 N.E.2d 212 (1987). This means we review the matter de
novo. Doe v. Shaffer, 90 Ohio St.3d 388, 2000–Ohio–186, 738 N.E.2d 1243.
{¶23} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis of the motion and identifying the portions of the record
which demonstrate the absence of a genuine issue of fact on a material element of the
non-moving party's claim. Drescher v. Burt, 75 Ohio St.3d 280, 1996–Ohio–107, 662
N.E.2d 264. Once the moving party meets its initial burden, the burden shifts to the
nonmoving party to set forth specific facts demonstrating a genuine issue of material fact
does exist. Id. The non-moving party may not rest upon the allegations and denials in the
pleadings, but instead must submit some evidentiary materials showing a genuine dispute
over material facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (12th
Dist.1991). Stark County, Case No. 2016CA00177 9
{¶24} At issue is whether or not the trial court erred in granting summary judgment
in appellee’s favor on appellant’s breach of fiduciary duty claim. A “fiduciary relationship”
is a relationship in which “special confidence and trust is reposed in the integrity and
fidelity of another and there is a resulting position of superiority or influence, acquired by
virtue of this special trust.” Ed Schory & Sons, Inc. v. Soc. Natl. Bank, 75 Ohio St.3d 433,
442, 1996 -Ohio- 194, 662 N.E.2d 1074. Under Ohio law, “a debtor-and-creditor
relationship does not generally create a fiduciary relationship.” Groob v. KeyBank, 108
Ohio St.3d 348, 351, 2006-Ohio-1189, 843 N.E.2d 1170. Therefore, Ohio law does not
recognize a fiduciary duty between a bank and its customer absent “special
circumstances.” Groob, 108 Ohio St.3d at 353. In Umbaugh Pole Bldg. Co. v. Scott, 58
Ohio St.2d 282, 390 N.E.2d 320 (1979), paragraph one of the syllabus, the Court held,
in part that: “A fiduciary relationship may be created out of an informal relationship, but
this is done only when both parties understand that a special trust or confidence has been
reposed.” Moreover, “the offering and giving of advice [is] insufficient to create a fiduciary
relationship” even when “the advice [is] given in a congenial atmosphere and in a sincere
effort to help” the customer. Schory, supra at 442-443.
{¶25} The trial court, in its September 8, 2016 Judgment Entry, found that
appellee did not owe appellant a fiduciary duty to appellant at the relevant time. Appellant,
in his brief, now maintains that appellee owed him a fiduciary duty because he was a
banking customer of appellee’s for 10 years, was an immigrant in his 70s with English as
a second language, and because Jeanne Volz, his personal banker, “sided” with his two
daughters and accepted their explanation of events over his. Stark County, Case No. 2016CA00177 10
{¶26} However, as noted by the trial court, “the mere duration of Plaintiff’s banking
relationship with Chase does not give rise to special circumstances that create a fiduciary
relationship.” In this case, appellant presented no evidence that a special trust or
confidence was reposed or that appellee took on additional responsibilities other than
assisting appellant with banking land the cases cited by him are inapposite. In appellant’s
affidavit, which was attached to his memorandum in opposition to appellee’s Motion for
Summary Judgment, appellant merely contends that Volz was his customer service
representative and personal banker for over ten years and “regularly assisted” him with
personal and business banking matters. While appellant, for the first time on appeal,
argues that he was owed a duty because of his age and Greek ancestry and allegedly
relied on Jeanne Volz for over a decade and sought her guidance, appellant waived such
argument by failing to raise it below. See The Strip Delaware, LLC v. Landry's
Restaurants, Inc., 5th Dist. Stark No.2010CA00316, 2011–Ohio–4075. Moreover,
regardless of appellant’s age, appellee did not owe appellant a fiduciary duty simply by
virtue of appellant’s conducting ordinary banking transactions at appellee’s branch.
{¶27} In his brief, appellant also asserts that a “potential” fiduciary relationship
was created between appellant and appellee on or about June 4, 2015 and that the trial
court erred in granting summary judgment in favor of appellee on such basis. According
to appellant, on such date, Volz advised him to reconsider his decision to revoke his
Power of Attorney. We concur with the trial court that any advice given by Volz to
appellant on such date is irrelevant. Appellant, in his complaint, alleged that, on January
26, 2015, his daughters, without his knowledge, withdrew $200,000.00 from the account
that they jointly owned with appellant and transferred the money into two new checking Stark County, Case No. 2016CA00177 11
accounts, and that, on or about February 3, 2015, his daughter Marina accessed his safe
deposit box and that she may have transferred the contents of such box into a new safe
deposit box opened solely in her name. The meeting on June 4, 2015 occurred months
after the transactions underlying appellant’s claims in his complaint. As noted by the trial
court, “[e]ven assuming, arguendo, that the advice Ms. Volz gave in the presence of
Plaintiff’s counsel could create a fiduciary relationship, at the most that relationship would
arise from June 4, 2015 going forward.”
{¶28} Based on the foregoing, we find that a fiduciary relationship did not exist
between the parties. We find, therefore, that the trial court did not err in granting summary
judgment in favor of appellee on appellant’s breach of fiduciary claim.
{¶29} Appellant’s second assignment of error is, therefore, overruled.
III
{¶30} Appellant, in his third assignment of error, argues that the trial court erred
in finding that a joint savings account had been created between appellant and his two
daughters and that appellee was not liable to appellant for withdrawals made by them
from the joint account.
{¶31} R.C. 1109.07(A) states as follows:
When a deposit is made in the name of two or more persons, payable
to either or the survivor, the bank may pay all of the deposit, any part of the
deposit, or any interest earned on the deposit, to either of the named
persons, or the guardian of the estate of either of the named persons,
whether or not the other person is living. The receipt or acquittance of the Stark County, Case No. 2016CA00177 12
person paid is a sufficient release and discharge of the bank for any
payments made from the account to that person.
{¶32} Such section “protect[s] banks from liability for having acted on the order of
any one joint account holder in a manner that may be inconsistent with the rights that the
joint account holders may assert among themselves.“ Stewart v. Natl. City Bank, 7th Dist.
No. 98–BA–26, 2001-Ohio-3221, 2001 WL 315191.
{¶33} As the court stated in Citizens Federal Bank, FSB v. Zierolf, 119 Ohio
App.3d 46, 50, 694 N.E.2d 496 (2nd Dist. 1997):
The statutory language evinces an intent to place the risk of improper
conduct by a joint account holder on those who created the joint account
and vested the joint account holder with the power to dispose of the money
in the account. Thus, when a joint account holder disposes of the money in
an account in accordance with the terms of the joint account, the bank is
not obligated to inquire into the actual ownership of the funds. Rather, the
joint account holders must resolve among themselves any dispute they
have as to the particular joint account holder's right to order payment of the
funds. The bank's involvement in the transaction is not a consideration.
{¶34} In the case sub judice, the most current Signature Card indicated that the
account was a joint account and listed the co-owners of the account as “George H.
Tsepas or Marina G. Tsepas or Angela A. Tsepas.” By signing the Signature Card,
appellant agreed to be bound by “the terms and conditions contained” in the Chase
Deposit Account Agreement governing the joint account. The Chase Deposit Account
Agreement provides that ownership of an account “is determined by the most current Stark County, Case No. 2016CA00177 13
signature card” and further provides that “[w]hen two or more people are listed as owners
of a personal account, the account is a joint account and each owner is a “joint owner.”
(Emphasis added). Thus, under the express terms of the Deposit Account Agreement,
the account is a “joint account” and appellant and his daughters, who are listed as owners,
are “joint owners.” While appellant asserts that the account is not a “joint account”
because his daughter Marina’s signature was listed, on the Signature Card, as “on file”
with appellee, “it is not essential to the creation of a joint and survivorship bank account
that the codepositor sign a signature card” Cramer v. Cramer, 9th Dist. Lorain No. 3238,
1981 WL 2646, 3 (Dec. 16, 1981).
{¶35} We find, therefore, that the trial court, therefore, did not err in holding that
appellee was not liable for withdrawals made by appellant’s two daughters from the joint
savings account.
{¶36} Appellant’s third assignment of error is, therefore, overruled.
IV
{¶37} Appellant, in his fourth assignment of error, argues that the trial court erred
in finding that Marina Tsepas was legally entitled to remove and transfer the contents of
appellant’s safe deposit box into her own name.
{¶38} Appellant specifically challenges the trial court’s entry of judgment in favor
of appellee on appellant’s claims that appellee violated the Ohio Uniform Fiduciaries Act.
Pursuant to R.C. 5815.05, the Uniform Fiduciaries Act (“UFA”), “[a] person who in good
faith pays or transfers to a fiduciary any money or other property that the fiduciary as such
is authorized to receive is not responsible for the proper application of the money or other
property by the fiduciary.” In addition, under R.C. 5815.07, “a check is drawn upon the Stark County, Case No. 2016CA00177 14
principal's account by a fiduciary who is empowered to do so, the bank may pay the check
without being liable to the principal, unless the bank pays the check with actual knowledge
that the fiduciary is committing a breach of the obligation as fiduciary in drawing the check
or with knowledge of such facts that its action in paying the check amounts to bad faith.”
{¶39} The UFA was developed to “facilitate commercial transactions, by relieving
those who deal with authorized fiduciaries from the duty of ensuring that entrusted funds
are properly utilized for the benefit of the principal by the fiduciary,” and to “place the
responsibility of employing honest fiduciaries on the principal.” Master Chem. Corp. v.
Inkrott, 55 Ohio St.3d 23, 26-27, 563 N.E.2d 26, 29-30 (1990). The UFA effectively shields
“a bank from liability when the bank knows that the individual is acting for the benefit of
another.”
{¶40} The first inquiry under the UFA is whether the bank had knowledge of the
existence of the fiduciary relationship, and whether the fiduciary in fact possessed the
authority to conduct the transaction in question. Inkrott, supra at 27. If the bank
possesses such knowledge, and the fiduciary in fact possesses such authority, then the
UFA will shield the bank from liability—unless the bank had actual knowledge of the
fiduciary's breach of his obligations, or alternatively, that the bank had knowledge of such
facts that its actions in paying the checks amounted to bad faith. Inkrott, 563 N.E.2d at
27. “Actual knowledge” has been defined as awareness at the moment of the transaction
that the fiduciary is defrauding the principal. “It means express factual information that the
funds are being used for private purposes in violation of fiduciary relationship.” Inkrott, at
28, citing General Ins. Co. of America v. Commerce Bank of St. Charles, 505 S.W.2d 454,
457 (Mo.App. 1974). Stark County, Case No. 2016CA00177 15
{¶41} Appellant contends that appellee had actual knowledge of a breach of
fiduciary duty by Marina Tsepas in accessing his safe deposit box and allegedly placing
some or all of its contents in a separate safe deposit box opened in her own name.
Appellant does not dispute that his daughter had authority to gain access to and remove
the contents of his safe deposit box in accordance with his POA , but rather maintains
that the language in his POA prohibited his daughter from leasing a safe deposit box in
her own name and transferring funds into the same.
{¶42} However, there is no evidence that appellee, when it accepted appellant’s
POA and granted access to Marina to the safe deposit box, had “express factual
information that the funds are being used for private purposes in violation of fiduciary
relationship.” Moreover, while the POA, in paragraph 1, does authorize Marina as
appellant’s attorney-in-fact to create or open accounts in appellant’s name, as noted by
the trial court, nothing in such section prohibits her from opening accounts in her own
name. We find, therefore, that there is no evidence that appellee had actual knowledge
of any alleged breach of fiduciary duty.
{¶43} Appellant further asserts that appellee had knowledge of such facts that its
actions in amounted to bad faith. The UFA does not define the term “bad faith.” Ohio
courts have often looked to whether a transaction is “commercially unjustifiable” in order
to determine whether a bank acted in bad faith. Savin v. Central Trust Co., N.A, 106 Ohio
App.3d 465, 470, 666 N.E.2d 332 (1st Dist. 1995), citing Inkrott, 55 Ohio St.3d at 27.
Accordingly, to be commercially unjustifiable, “[t]he facts and circumstances must be so
cogent and obvious that to remain passive would amount to a deliberate desire to evade
knowledge because of a belief or fear that inquiry would disclose a defect in the Stark County, Case No. 2016CA00177 16
transaction.” Savin, 106 Ohio App.3d at 470, 666 N.E.2d 332, quoting Inkrott, 55 Ohio
St.3d at 27, citing Transport Trucking Co. v. First Natl. Bank in Albuquerque, 61 N.M.
320, 325, 300 P.2d 476 (1956).
{¶44} No such facts or circumstances exist in this case. While appellant alleges
that appellee has a policy of “permitting fiduciaries to engage in transactions without the
Bank’s bothering to read or adhere to the written instrument” and that such policy is
“commercially unjustifiable”, there is no evidence in the record that such a policy exists.
Marina Tsepas, was in accordance with the express language in appellant’s POA,
permitted to “enter any safe deposit box which I [appellant] may rent alone or in
connection with others, and to place or remove property to or from said box.”
{¶45} Based on the foregoing, we find that the trial court did not err in granting
summary judgment in favor of appellee on appellant’s claim that appellee violated the
UFA.
{¶46} Appellant’s fourth assignment of error is, therefore, overruled. Stark County, Case No. 2016CA00177 17
{¶47} Accordingly, the judgment of the Stark County Court of Common Pleas is
affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Wise, J. concur.