Abraham v. National City Bank Corp.

Per Curiam. The only issue before us is whether the court of appeals was correct in affirming the trial court’s decision that plaintiff-appellant Abraham’s cause of action against defendant-appellee National City is time barred by R.C. 1101.08(F).1 For the reasons that follow, we hold that R.C. 1101.08(F) applies to the facts of this case and bars Abraham’s action against the bank. R.C. 1101.08(A)(1) lists the internal records that banks are required to keep for one year; R.C. 1101.08(A)(2) lists the internal records that a bank must keep for six years, including deposit and withdrawal tickets, ledger sheets or records showing savings accounts with zero balances or which have been transferred to other ledger sheets or records, and checks issued by the bank which have been cancelled. R.C. 1101.08(B) mandates that bank records not listed in subsection (A) be kept for six years. R.C. 1101.08(E) permits banks to destroy these records after keeping them for the required length of time. R.C. 1101.08(F), the subsection at issue in this case, protects a bank from liability once the records have been destroyed: “Any action by or against a bank based on, or the determination of which would depend upon, the contents of records for which a period of retention or preservation is set forth in divisions (A) and (B) of this section shall be brought within the period of time for which such record must be retained or preserved.” National City argues that R.C. 1101.08(F) acts as a time bar to Abraham’s action to recover the funds in the savings account opened in 1969. Because the only extant internal record of the savings account, the January 1977 microfilm list of Capital National accounts, does not list Abraham’s account, National City asserts that the account must have been closed between September 1972, when she last used the passbook, and January 1977. Thus any records — withdrawal slips, bank checks, ledger entries — pertaining to the termination of Abraham’s account would have been generated by January 1977 and destroyed by 1983, pursuant to R.C. 1101.08. The bank maintains that because Abraham filed her complaint in 1986, more than six years after 1977, her attempt to recover her [177] money began too late and was correctly dismissed as untimely. Abraham counters that her passbook, which shows no activity in the account after 1972, and her own deposition testimony that she neither emptied the account nor authorized anyone else to do so constitute sufficient evidence for the case to proceed past summary judgment. Abraham also points to the deposition of a former assistant vice-president of Capital National Bank, who testified that the bank discouraged withdrawals from passbook accounts unaccompanied by the passbook. Abraham asserts that R.C. 1101.08(F) does not apply to her action against National City because it is not one “* * * based on, or the determination of which would depend upon, the contents of * * *” the bank’s internal records. We cannot agree. 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. 1101.08(F) applies to the facts of this case and mandates its dismissal. Abraham asserts that one reason she did not press her claim earlier is that she received no notice that the bank had changed ownership and that her neighborhood branch was closing. She also draws our attention to the deposition testimony of a former Capital National Bank employee that if the bank had erroneously debited her account instead of another customer’s, she would not have learned of the error unless she subsequently complained. However, she did receive notice of a sort when she lacked the Form 1099s with which to report the interest the account would have earned each year as long as it was open. The bank was legally responsible for reporting the interest, and Abraham was legally responsible for paying taxes on it. Abraham had other savings accounts, and she testified in her deposition that she paid income tax on the interest on those accounts. The lack of a Form 1099 for the account in this case should have alerted her to a possible problem with that account long before she found the passbook. Abraham points out that the Revised Code contains statutes of limitations for actions in conversion (R.C. 2305.09[B]), fraud (R.C. 2305.09[C]), and breach of written contract (R.C. 2305.06), which actions accrued when the plaintiff discovered she had no money in the bank. See, e.g., R.C. 2305.09(D); Children’s Hosp. v. Ohio Dept. of Public Welfare (1982), 69 Ohio St. 2d 523, 23 O.O. 3d 452, 433 N.E. 2d 187. Were we to apply these statutes of limitations, Abraham’s actions would not be time barred, since she learned in 1985 that the account was [178] closed and she brought her action the next year. R.C. 1.51 provides that if general and “special” provisions conflict, “* * * the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.” The statutes of limitations for conversion, fraud, and breach of contract do not manifest the legislature’s intent that they prevail over more specific statutes of limitations. In fact, R.C. 2305.03 manifests the opposite intent: “A civil action, unless a different limitation is prescribed by statute, can be commenced only within the period prescribed in sections 2305.03 to 2305.22, inclusive, of the Revised Code.” (Emphasis added.) It is clear that the statutes of limitations otherwise applicable to Abraham’s action against National City must give way to the specific six-year statute of limitations contained in R.C. 1101.08(F). See State v. Volpe (1988), 38 Ohio St. 3d 191, 527 N.E. 2d 818. We are not unmindful of the potential for harsh results under thé clear mandate of the statute, but this is a legislative problem. Therefore, we affirm the judgment of the court of appeals. Judgment affirmed. Moyer, C.J., Sweeney, Holmes, Wright and H. Brówn, JJ., concur. Douglas and Resnick, JJ., dissent. Footnotes [1] In her second proposition of law, Abraham asserts that R.C. 1101.08 violates Section 16, Article I of the Ohio Constitution. Because she failed to raise the issue at trial and raised it for the first time on appeal, we agree with the court of appeals that the issue is waived. See State v. Awan (1986), 22 Ohio St. 3d 120, 22 OBR 199, 489 N.E. 2d 277.