Judith Mae Harber as Trustee of Trust a for the Estate of Edwin Erwin, et al. v. Bank of America, N.A., et al.

This is an action for breach of contract against a bank. Plaintiff Trustee sued bank for breach of the terms of a certificate of deposit (CD) by allowing her husband, who was neither the depositor nor her authorized agent, to redeem the CD held in trust for a $100,000 cashier’s check payable to Plaintiff as trustee. The Plaintiff Trustee appeals the trial court’s award of partial summary judgment to Defendant bank. Despite the bank’s breach of contract, Plaintiff Trustee was unable to maintain a suit founded upon her husband’s lack of authority to redeem the CD. The trial court found she ratified the redemption by previously filing suit against a different bank that had accepted the unendorsed cashier’s check for deposit, opened a checking account in Plaintiff’s name as trustee, and paid out the proceeds over Plaintiff’s forged signatures. The trial court concluded that by asserting ownership in the cashier’s check and the unauthorized checking account in the previous suit, the Plaintiff Trustee had manifested a clear intent to affirm her husband’s redemption of the CD. We agree. Even though Plaintiff Trustee pled alternative, inconsistent claims in the first suit, which is still pending, each claim was necessarily premised upon her husband’s authorized redemption of the CD. We accordingly affirm the judgment of the trial court.