Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mark IV Enterprises, Inc. v. Bank of America, N.A.

Court of Appeals of Tennessee, Nashville

June 26, 2018

MARK IV ENTERPRISES, INC., ET AL.
v.
BANK OF AMERICA, N.A., ET AL.

          March 28, 2018 Session

          Appeal from the Chancery Court for Davidson County No. 14-1677-IV Russell T. Perkins, Chancellor

         Appellants' employee embezzled funds from Appellants using the employee's Bank of America account. The employee wrote checks on Appellants' accounts to legitimate third party vendors but deposited the checks into her own personal account by way of Bank of America's ATMs. Appellants filed suit against Bank of America alleging that the bank's failure to either prevent this activity or alert Appellants thereto constituted causes of action for aiding and abetting conversion, aiding and abetting fraud, civil conspiracy, and negligence. The trial court granted Bank of America's motion to dismiss Appellants' claims for aiding and abetting fraud and conversion and for civil conspiracy based on Bank of America's lack of knowledge of Appellants' employee's wrongdoing. The court subsequently granted Bank of America's motion for summary judgment on the remaining negligence claim finding that the bank owed no duty to Appellants. We affirm.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded

          Jean Dyer Harrison, Nashville, Tennessee, for the appellants, Mark IV Enterprises, Inc., Legacy Project Resources, LLC, and Tonya Gale Jones.

          Andrea Taylor McKellar and Lyndsay Smith Hyde, Nashville, Tennessee, and Graham H. Claybrook, Charlotte, North Carolina, Pro Hac Vice, for the appellee, Bank of America, N.A.

          Brandon O. Gibson, J., delivered the opinion of the court, in which Arnold B. Goldin and Kenny Armstrong, J.J., joined.

          OPINION

          BRANDON O. GIBSON, JUDGE.

         I. Facts & Procedural History

         Appellant Mark IV Enterprises, Inc. was a construction company in Nashville, Tennessee, until on or about January 1, 2010. Appellant Legacy Project Resources, LLC ("Legacy") is a project management company that manages construction projects in Nashville. Both entities share one principal, Tonya Jones. Susan Bennett was the bookkeeper for both companies. Appellants allege that from 2008 through 2010, Ms. Bennett embezzled funds from their bank accounts by depositing checks drawn on Appellants' accounts and made payable to Appellants' vendors into Ms. Bennett's own personal account at Bank of America, N.A. (the "Bank"). These checks were not made payable to Ms. Bennett, and many of them were unendorsed. At the time, the Bank's software did not scan to confirm that the check deposited in the ATM was made payable to the account holder or that it was endorsed.

         On November 15, 2011, Appellants filed suit against the Bank in the Chancery Court of Davidson County. The case was removed to federal court by the Bank and then voluntarily nonsuited by Appellants. The case was re-filed in chancery court on December 3, 2014, then removed to federal court, and remanded back to chancery court once again. On August 28, 2015, the chancery court ("trial court") dismissed Appellants' aiding and abetting conversion, aiding and abetting fraud, and civil conspiracy claims, finding that Appellants' Complaint failed to state a claim under any of these theories. Although it is not clear from the trial court's written order dismissing these claims, later court orders appear to show the court's reasoning rested on the Bank's lack of notice of Ms. Bennett's actions.

         Consequently, Appellants' sole remaining claim against the Bank was common law negligence. The parties engaged in discovery, and the Bank filed a motion for summary judgment on Appellants' negligence claim. The Bank argued that (1) Appellants' claim for negligence was preempted by the Uniform Commercial Code, and (2) in the alternative, Appellants' negligence claim must fail because the Bank did not owe a duty to Appellants as non-customers of the Bank. On January 31, 2017, the trial court granted summary judgment in favor of the Bank on the negligence claim, agreeing that the Bank owed no duty to appellants.

         II. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.