Paul v. PNC Bank Natl. Assn. , 2022 Ohio 672 ( 2022 )

[Cite as Paul v. PNC Bank Natl. Assn., 2022-Ohio-672.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
ROGER PAUL, : APPEAL NO. C-210261
TRIAL NO. A-1902624
Plaintiff-Appellant, :
vs. : O P I N I O N.
PNC BANK, NATIONAL :
ASSOCIATION,
Defendant-Appellee. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: March 9, 2022
Aronoff, Rosen, and Hunt, LPA, and Daniel A. Perry, for Plaintiff-Appellant,
Dinsmore & Shohl, LLP, and R. Samuel Gilley, for Defendant-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Plaintiff-appellant Roger Paul brings this appeal to challenge the trial
court’s grant of summary judgment in favor of defendant-appellee PNC Bank,
National Association (“PNC”). For the following reasons, we overrule the three
assignments of error and affirm the judgment of the trial court.
Factual Background
{¶2} On July 15, 2005, plaintiff-appellant Roger Paul opened a safe deposit
box (“the box”) at PNC’s Symmes Township branch location. He executed a lease
agreement for the box, which listed an annual rental fee of $35. The lease was “for a
period of one year,” but also contained the following provision:
At the expiration of this lease, it may be renewed for a further
term of one year, and thereafter from year to year upon the same
general terms, conditions and agreements as are herein contained and
at the Lessor’s then current rental charge. If a renewal lease in writing
shall not be executed, then this instrument shall of itself operate as or
be held to be a renewal or successive renewal hereof, subject to the
right of cancellation as herein provided.
Additionally, the lease contained a provision which authorized the annual rental fee
to be debited from Paul’s “SAV” account, beginning on July 15, 2006. PNC reserved
the right to cancel the lease after ten days written notice to Paul.
{¶3} Paul asserted that, upon the opening of the box, he deposited several
items in the box for safekeeping including two rings, a ten-ounce gold bar, a
survivor’s affidavit, and a Krugerrand. He averred that the first payment for the box
was made by check on July 15, 2005, and the second payment for the box was
automatically debited from his checking account on July 17, 2006. Paul claimed the
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OHIO FIRST DISTRICT COURT OF APPEALS
remaining annual lease payments were waived by PNC after he opened an
investment account with PNC.
{¶4} On March 29, 2019, Paul entered the PNC branch location to review
the contents of the box and was informed by an employee of PNC that he was not the
listed owner of the box. Additionally, he was informed that PNC had no records that
ever showed him as the owner of the box. Paul was instructed to contact the Ohio
Division of Unclaimed Funds, which informed him that it had no record of any
property belonging to him.
{¶5} Paul denied ever receiving notice from PNC that his lease had been
cancelled for any reason. He did not recall receiving regular account statements for
the box but claimed that he was never under the impression that he would receive
statements as PNC had represented to him that the annual fee for the box would be
waived.
Procedural History
{¶6} On May 31, 2019, Paul filed a complaint against PNC, alleging several
causes of action based on the lease and the contents of the box. On November 10,
2020, Paul moved for summary judgment, arguing that no genuine issues of material
fact existed and that he was entitled to judgment as a matter of law on his claims.
PNC moved for summary judgment on December 2, 2020, arguing that Paul’s claims
were time-barred pursuant to R.C. 1109.69(F). After holding a hearing, the trial
court granted summary judgment in PNC’s favor on March 25, 2021, finding that the
claims were time-barred by R.C. 1109.69(F). Paul timely filed his notice of appeal on
April 22, 2021. He now raises three assignments of error for our review.
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OHIO FIRST DISTRICT COURT OF APPEALS
Law and Analysis
First Assignment of Error
{¶7} In his first assignment of error, Paul argues that the trial court erred
by granting summary judgment in favor of PNC because the trial court indicated at
the hearing that the case was not appropriate for summary judgment. Specifically,
Paul argues, “The trial court cannot, during a hearing, state that this case needed to
be decided by the trier of fact and is not ripe for summary judgment, and then a few
weeks later grant summary judgment in a manner which completely contradicts the
trial court’s record.”
{¶8} First, the record does not reflect that the trial court decided at the
hearing that the case was inappropriate for summary judgment. Rather, the record
reflects that the trial court questioned the parties in the middle of the hearing on why
this case was not a case that depended solely on credibility determinations, and then
counsel for PNC argued why the case was appropriate for summary judgment. At the
conclusion of the hearing, the trial court informed the parties that it was going to
review the cases discussed by the parties and then make a ruling. Thus, the trial
court did not make a definitive decision on this case during the hearing.
{¶9} Additionally, even if the court had decided at the hearing that this case
was inappropriate for summary judgment, the trial court was free to change its mind
before making its journal entry. See State v. Hankins, 89 Ohio App.3d 567, 569, 626
N.E.2d 965 (3d Dist.1993), citing State ex rel. Ruth v. Hoffman, 82 Ohio App. 266,
80 N.E.2d 235 (1st Dist.1947) (“Because the court has not spoken until its journal
entry is filed, a judge can change his or her mind before making a journal entry
without giving the parties grounds to appeal.”); see also State v. Brown, 3d Dist.
Allen No. 1-06-66, 2007-Ohio-1761, ¶ 3, citing State v. Scovil, 127 Ohio App.3d 505,
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713 N.E.2d 452 (8th Dist.1998) (“A trial court speaks only through its journal entries
and not by oral pronouncement.”); Schenley v. Kauth, 160 Ohio St. 109, 111, 113
N.E.2d 625 (1953) (“The rule is well established in this state that a court of record
speaks only through its journal and not by oral pronouncement or a mere minute or
memorandum.” (Citation omitted.)). Therefore, this assignment of error is
overruled.
Second and Third Assignments of Error
{¶10} In his second assignment of error, Paul argues that the trial court erred
in granting summary judgment because it improperly applied R.C. 1109.69 and the
relevant case law, and improperly applied the summary-judgment standard. In his
third assignment of error, Paul argues that the trial court erred in granting summary
judgment because it improperly made an inference that the safe deposit box was
voluntarily closed. As Paul’s second and third assignments of error are interrelated,
we address them together.
{¶11} In relevant part, R.C. 1109.69 provides:
(A) Unless a longer record retention period is required by
applicable federal law or regulation, each bank shall retain or preserve
the following bank records and supporting documents for only the
following periods of time:
(1) For one year:
***
(c) Ledger records of safe deposit accounts, after
date of last entry on the ledger;
***
(2) For six years:
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OHIO FIRST DISTRICT COURT OF APPEALS
***
(f) safe deposit access tickets and correspondence
or documents relating to access, after their date;
(g) Lease or contract records relating to closed
safe deposit accounts, after date of closing;
(h) Signature cards relating to closed demand,
savings, or time accounts, closed safe deposit
accounts, and closed safekeeping accounts, after
date of closing;
***
(B) The superintendent of financial institutions may designate a
retention period of either one year or six years for any record
maintained by a bank but not listed in division (A) of this section.
Records that are not listed in division (A) of this section and for which
the superintendent has not designated a retention period shall be
retained or preserved for six years from the date of completion of the
transaction to which the record relates or, if the last entry has been
transferred to a new record showing the continuation of a transaction
not yet completed, from the date of the last entry.
***
(E) A bank may dispose of any records that have been retained
or preserved for the period set forth in division (A) and (B) of this
section.
(F) Any action by or against a bank based on, or the
determination of which would depend on, the contents of records for
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OHIO FIRST DISTRICT COURT OF APPEALS
which a period of retention or preservation is set forth in divisions (A)
and (B) of this section shall be brought within the time for which the
record must be retained or preserved.
{¶12} In Abraham v. Natl. City Bank Corp., 50 Ohio St.3d 175, 553 N.E.2d
619 (1990), the plaintiff, Abraham, opened a passbook savings account at Capital
National Bank in October 1969. Id. at 175. Two sentences at the bottom of the page
where deposits were to be recorded in the passbook instructed that the passbook be
presented when money is deposited or withdrawn and instructed that the bank must
be notified if the passbook was lost or stolen. Id. The last entry in the passbook was
dated September 30, 1972. Id. Shortly after this date, Abraham misplaced the
passbook. Id. She did not notify the bank that the passbook was lost and claimed
that she did not attempt thereafter to deposit or withdraw money without the
passbook. Id. Abraham found the passbook in 1985. Id. Capital National Bank was
acquired by BancOhio in 1973, which was acquired by National City Bank in 1984.
Id. Abraham inquired through her attorney about the status of the account at
National City Bank. Id. “National City had no internal records of the account, except
for a January 4, 1977, microfilm list of open accounts from Capital National Bank on
which Abraham’s account does not appear.” Id. National City Bank concluded that
the account was closed sometime between late 1972 and January 1977. Id. It was
verified that the money did not escheat to the state. Id.
{¶13} Abraham filed a complaint against National City in May 1986. Id. The
trial court granted, and the court of appeals affirmed, summary judgment in favor of
National City based on former R.C. 1101.08(F), now R.C. 1109.69(F). Id. at 176. The
Ohio Supreme Court agreed. Id. at 177. The court stated:
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OHIO FIRST DISTRICT COURT OF APPEALS
The intent and language of R.C. 1101.08(F) are clear. A bank
would be foolish to destroy its records after six years in reliance on
R.C. 1101.08(E) without the assurance provided in R.C. 1101.08(F) that
it will not thereby leave itself open to litigation without the documents
necessary to defend itself.
Without its internal records, National City can only speculate
about how and by whom Abraham’s funds were removed from her
account. Indeed the records might show that the Bank was at fault.
Abraham contends that the passbook plus her testimony should be
sufficient to bring her case before a jury. The problem is that the
passbook proves only that the account existed; it does not explain how
the funds were removed from the account. Only the internal bank
records could explain it. Because these internal bank documents are
crucial evidence in Abraham’s action and because without them the
bank is unable to defend itself in this lawsuit, this is an action ‘* * * the
determination of which would depend upon, the contents of records *
* *’ that R.C. 1101.08(E) authorized the bank to destroy. Therefore,
R.C. 1108.08(F) applies to the facts of this case and mandates its
dismissal.
(Ellipses sic.) Id.
{¶14} In Spiller v. Sky Bank-Ohio Region, 122 Ohio St.3d 279, 2009-Ohio-
2682, 910 N.E.2d 102, the plaintiff, Spiller, discovered an envelope, which contained
four certificates of deposit, while moving a dresser that belonged to her friend,
Stayrook, who had passed away several months earlier. Id. at ¶ 3. The two has been
friends since 1936. Id. at ¶ 4. Spiller was privy to Stayrook’s finances. Id. She
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OHIO FIRST DISTRICT COURT OF APPEALS
“knew the certificates existed and believed that Stayrook had never redeemed them.”
Id. One of the certificates, issued to Spiller and payable on death to Stayrook, was at
issue in the appeal. Id. at ¶ 5. The defendant, Sky Bank, was the successor to the
bank that originally issued the certificates. Id. at ¶ 6. Sky Bank refused to pay the
certificates when presented by Spiller. Id. Employees of Sky Bank searched but were
unable to find any open accounts or records for Spiller or Stayrook. Id. Sky Bank
had a policy which permitted customers to keep the paper certificate after redeeming
the certificate of deposit. Id. at ¶ 7. Sky Bank maintained that the certificates must
have been redeemed and the pertinent records must have been disposed of. Id.
{¶15} Spiller sued Sky Bank. Id. at ¶ 8.1 The trial court denied Sky Bank’s
motion for summary judgment and, after a bench trial, awarded judgment in favor of
Spiller on the certificate issued solely to her. Id. at ¶ 9-10. The court of appeals
affirmed the decision of the trial court, holding that the bank was not authorized by
statute to destroy records of the certificates because the certificates renewed
automatically and thus R.C. 1109.69 did not apply to bar the suit. Id. at ¶ 11. The
Ohio Supreme Court disagreed. Id. at ¶ 12. The court stated:
Spiller has only the original paper certificate issued in 1975 and
her testimony to prove the existence of the deposit. Sky Bank has
produced an all-accounts list that indicates that no such account
existed in 1993. The absence of any record of Spiller’s account as of
December 31, 1992, raises an inference that the account was closed at
some time between 1975 and December 31, 1992. Spiller cannot
explain when, why, or how the account terminated; only the bank’s
1 The decision of the court of appeals shows that the complaint was filed on March 15, 2005.
Spiller v. Sky Bank, 3d Dist. Logan No. 8-07-03-2008-Ohio-1338, ¶ 4.
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OHIO FIRST DISTRICT COURT OF APPEALS
internal records could do that. Accordingly, this is a lawsuit ‘based on,
or the determination of which, would depend on, the contents of
records’ retained pursuant to R.C. 1109.69(A) or (B).
***
Under R.C. 1109.69(A) or (B), certain records must be
maintained for one year or six years following the closing of an account
or date of last entry. Under either subsection, the record-retention
period has passed in this case. The all-accounts list for 1993 indicates,
by absence of Spiller’s name, that the account was closed on or before
December 31, 1992. Accordingly, the bank was permitted under R.C.
1109.69(E) to discard any records of the account on January 1, 1999, at
the latest. Spiller’s suit is therefore time-barred by R.C. 1109.69(F).
Id. at ¶ 15, 18, citing R.C. 1109.69(F) and Abraham, 50 Ohio St.3d at 177, 553 N.E.2d
619.
{¶16} PNC argues that Abraham and Spiller are dispositive in this case. To
be sure, the evidence presented in both cases showed key commonalities that the
Ohio Supreme Court found to be important: (1) the plaintiffs presented “stale
evidence of money deposited with a bank and testified that the money had never
been withdrawn,” (2) the defending banks “lacked any records of any such account
and provided a list of customers who had open accounts as of a date more than six
years prior to the plaintiff’s claim, and the plaintiff’s name was not on that list,” (3)
the plaintiffs did not recall receiving any correspondence from the bank regarding
the account; (4) the money did not escheat to the state as abandoned funds; and (5)
the account had no fixed termination date. (Emphasis added.) Spiller at ¶ 13.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶17} The instant case is similar to Abraham and Spiller in most regards but
distinct in one important way. Here, we do not have a list of open safe deposit
accounts as of a date more than six years prior to Paul’s claim which does not include
his name. This is significant because the list of open accounts in both cases acted as
evidence from which a permissible inference could be drawn that the account in
question in each case was closed more than six years from the time the plaintiffs
brought suit. Thus, we must determine whether PNC presented any comparable
evidence from which the trial court could properly infer that the safety deposit box
was closed more than six years prior to the filing of the present litigation, thereby
making summary judgment appropriate.
{¶18} We hold that it did. When moving for summary judgment, PNC
included an affidavit of Stephanie Murdock, a loss prevention advisor at PNC. In the
affidavit, Murdock averred that she was familiar with the business records regularly
kept by PNC with respect to safety deposit boxes and avowed that she was competent
and authorized to make the affidavit on behalf of PNC. Murdock asserted that,
regarding safety deposit boxes, PNC retains and preserves the following for a period
of seven years: (1) safe deposit access tickets and correspondence or documents
relating to access, after their date; (2) lease or contract records relating to closed safe
deposit accounts, after the date of closing; and (3) signature cards relating to closed
safe deposit accounts, after date of closing. After expiration of the seven years, PNC’s
policy is to purge the records.
{¶19} Murdock stated, “Consistent with its standard banking practices, PNC
searched its safe deposit box and escheatment records for any information regarding
the Safe Deposit Box and lease. Specifically, PNC viewed box rented reports for the
past 7 years, reviewed open and closed contracts at the branch, and contacted
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OHIO FIRST DISTRICT COURT OF APPEALS
escheat department.” She avowed that PNC does not have: (1) any record of Paul’s
safe deposit box lease; (2) any record that Paul renewed his safe deposit box lease
after its initial term; (3) any records regarding expiration or termination of Paul’s
safe deposit box lease; (4) any records of Paul’s payment of rental fees under the
lease; (5) any records explaining when, why, or how Paul’s lease terminated and
whether the box contained property at the time; or (6) any records explaining when,
why or how any property was removed and processed, if the box contained property
at the time of expiration or termination.
{¶20} She further asserted the following: (1) if the lease was not renewed
after its initial term, PNC would have purged its records of closure and disposition of
the box no later than August 2014; (2) if Paul removed the contents of the box and
terminated the lease or any renewal of the lease prior to April 2012, PNC would have
purged its records prior to May 2019; (3) if PNC terminated the lease or any renewal
thereof and disposed of the contents of the box prior to April 2012, PNC would have
purged its records prior to May 2019; and (4) if Paul exchanged the box for any other
box at any point prior to April 2012, PNC would have purged its records of the same
prior to May 2019.
{¶21} Murdock confirmed that PNC also checked its “escheat reporting
system” and digital records, dating back to 2012, to determine whether the contents
of the box had escheated to the state, and PNC had no records indicating that the
contents of the box escheated to the state. She concluded that the absence of any
records, “means that the Safe Deposit Box Lease, or any renewal thereof, expired or
was terminated at some point prior to April 2012.”
{¶22} This evidence was sufficient for the trial court to make a permissible
inference that the safety deposit box account must have closed more than six years
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OHIO FIRST DISTRICT COURT OF APPEALS
prior to the complaint being filed in this action. Paul attempts to contradict this
evidence by arguing that a fee charged to his checking account in 2016 after he closed
his investment account showed that PNC charged his account for the safety deposit
box fee in 2016. However, the evidence in the record does not support this assertion.
The record contains 2016 printouts from PNC associated with Paul’s checking
account. These documents reflect two charges to his checking account. The first
charge of $20 was posted on September 20, 2016, and is described as a “calculated
service charge.” The second charge of $36 was posted on September 23, 2016, and is
described as an “OD FEE CK# 2885.” Both charges were refunded to Paul’s account
on September 23, 2016. The comment regarding the refund for the first charge
stated, “customer was not aware that he would receive a $20 [sic] in his checking
when he closed his PNCI account.” The comment regarding the refund for the
second charge stated, “customer is furious over this fee – he would not have been
overdrawn if we didn’t charge him a service fee and we charg [sic] service fee because
he closed his PNCI account.” PNC submitted a supplemental affidavit of Stephanie
Murdock to explain these documents. Murdock explained that the records “reflect
two debits and refund of the same to Plaintiff’s DDA Account * * *,” and averred that
the fees “have no relation to Plaintiff’s Safe Deposit Box Lease.” Paul did not submit
any evidence to the contrary. Thus, this evidence does not prevent an inference that
the safety deposit box account must have closed more than six years prior to the
complaint being filed.
{¶23} We are not unsympathetic to the harsh result this statute creates.
However, as the Ohio Supreme Court recognized in Abraham, it a problem that only
the legislature can solve. Abraham, 50 Ohio St.3d at 178, 553 N.E.2d 619. And while
we are understanding of Paul’s arguments that this case presents the very concerns
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discussed in the dissenting opinions in Abraham and Spiller, the majority opinions
are the controlling law, and we are bound to follow them. See, e.g., State v. Stewart,
2d Dist. Miami No. 2016-CA-13, 2017-Ohio-2785, ¶ 12. Because we find that the
determination of all of Paul’s claims would depend on the contents of records that
PNC was authorized to destroy, we hold that the trial court properly granted
summary judgment in favor of PNC as Paul’s claims were time-barred by R.C.
1109.69(F). Paul’s second and third assignments of error are overruled.
Conclusion
{¶24} Having overruled the three assignments of error, we affirm the
judgment of the trial court.
Judgment affirmed.
MYERS, P.J., and BOCK, J., concur.
Please note:
The court has recorded its own entry this date.
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