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THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Hillsborough-northern judicial district
No. 96-810
ETHEL M. AHRENDT, INDIVIDUALLY AND BY AND THROUGH
JANE BATTS, UNDER A DURABLE POWER OF ATTORNEY
v.
GRANITE BANK
November 18, 1999
Law Offices of David J. KillKelley, of Laconia (David J. KillKelley on the brief and orally), for the plaintiff.
Fernald, Taft, Falby & Little, P.A., of Peterborough (Mark D. Fernald on the brief and orally), for the defendant.
Gallagher, Callahan & Gartrell, P.A., of Concord (Dodd S. Griffith on the brief), for the New Hampshire Bankers Association, as amicus curiae.
THAYER, J. The plaintiff, Ethel M. Ahrendt, appeals rulings of the Superior Court (Lynn, J.) granting summary judgment on one count and directed verdicts on the two remaining counts in favor of the defendant, Granite Bank. We affirm.
In July 1992, the plaintiff was eighty years old. One of her accounts with the defendant, which then operated as Peterborough Savings Bank, was a money market account. Through a series of withdrawals, the account balance fell from more than $52,000 to less than $200 in under five weeks. Four transactions, accounting for $50,500 of the withdrawals, were carried out by four handwritten notes, each requesting that the bank pay George Ward for purported home repairs.
The first payment of $11,500 was made on July 29, 1992. On that day, the plaintiff telephoned Jessica Cheney, a bank employee, to ascertain the balance in her account. For security purposes, Cheney first asked the plaintiff to state her social security number and then reported the balance. The plaintiff asked Cheney to repeat the balance to a man she identified as George Ward. The plaintiff stated that she could not find her checkbook but wished to withdraw money from her account to pay Ward. Cheney explained that the bank would honor a written authorization signed by the plaintiff. Ward later presented Cheney a written authorization signed by the plaintiff. Cheney verified the plaintiff's signature, asked Ward for identification, and made out a bank check payable to Ward. Before she processed the check, Cheney called the plaintiff to confirm her desire to make the transaction. The plaintiff confirmed that she wanted to pay Ward $11,500 from her account. Although Cheney felt "uncomfortable," especially when the plaintiff asked her to repeat the balance to Ward, the plaintiff "sounded clear" each time Cheney spoke with her.
Similar scenarios followed. On July 31, August 3, and August 5, the plaintiff asked the bank to pay Ward $11,000, $14,000, and $14,000, respectively. Each time the plaintiff called the bank, and Ward presented the bank with a written authorization signed by the plaintiff. For all but the July 31 transaction, the plaintiff's signature was verified, and the plaintiff was called to confirm her desire to make the transaction. After the account was overdrawn on August 13, a bank employee called the plaintiff to request that she cover the overdraft, and the plaintiff's family discovered that Ward had cheated the plaintiff. Following a police investigation, Ward was prosecuted and convicted.
The plaintiff thereafter brought suit, alleging that by honoring the signed written authorizations, the defendant: (1) breached the duty it owed the plaintiff that arose from a fiduciary or confidential relationship; (2) breached its duty of care to the plaintiff; and (3) breached its contract with the plaintiff. The trial court granted the defendant's motion for summary judgment on the fiduciary duty claim. At the close of the defendant's case, the trial court granted the defendant's motion for directed verdicts, ruling that as a matter of law, the defendant owed no "duty to [the plaintiff] that could be the basis for imposing liability."
On appeal, the plaintiff first argues that the court erred in granting summary judgment on her claim that the bank violated a fiduciary duty when it approved her handwritten requests to transfer funds. When we review a summary judgment ruling, "we consider the evidence in the light most favorable to [the non-moving party] and, if no genuine issue of material fact exists, we determine whether [the] moving party is entitled to judgment as a matter of law." N.H. Ins. Guaranty Assoc. v. Pitco Frialator, 142 N.H. 573, 576, 705 A.2d 1190, 1192 (1998); see RSA 491:8-a, III (1997).
As a general rule, the relationship between a bank and a customer is not a fiduciary one unless the law otherwise specifies. See Lash v. Cheshire County Savings Bank, 124 N.H. 435, 439, 474 A.2d 980, 982 (1984). The relationship between a bank and its depositor is a debtor-creditor relationship. See Pappalardo v. Bank of Boston, 133 N.H. 855, 859, 587 A.2d 251, 253 (1991). As such, the relationship between an ordinary depositor and the bank is contractual in nature. See Heath v. Savings Bank, 46 N.H. 78, 79 (1865).
A fiduciary relationship, however, can arise under certain facts if equity so requires. See Lash, 124 N.H. at 439, 474 A.2d at 982; 9 C.J.S. Banks and Banking