Dana and Nancy Singleton v. Citizens Bank of Weston (Memorandum Decision)

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STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS Dana and Nancy Singleton, Plaintiffs Below, Petitioners vs) No. 11-0570 (Lewis County 09-C-146) FILED February 13, 2012 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA The Citizens Bank of Weston, Inc., Defendant Below, Respondents MEMORANDUM DECISION This appeal arises from the Circuit Court of Lewis County, wherein the Respondent s, Citizens Bank of Weston, Inc., ( Bank ) motion for summary judgment was granted. This appeal of the order granting summary judgment to the Bank was timely perfected by counsel, with Petitioners Singletons appendix accompanying the petition. Resondent Bank filed a response in support of the circuit court s decision. This Court has considered the parties briefs and the appendix on appeal. The facts and legal arguments are adequately presented in the parties written briefs and the appendix on appeal, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the appendix presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Revised Rules. On June 25, 2003, Petitioners Dana and Nancy Singleton, who are son and mother, leased Box Number 3835 from Respondent Bank. Petitioners and Bank entered into a Safe Deposit Box Lease Agreement and the petitioners signed a signature specimen card for access to their safe deposit box. Between June 25, 2003, and April 24, 2009, the petitioners made ten visits to their safe deposit box. On all visits except for one, the two entered their safe deposit box together. On their second to last date of visiting their safe deposit box, which occurred on September 8, 2008, vault attendant Kimberly Blake assisted them with closing and locking the safe deposit box. On the morning of April 24, 2009, Petitioner Dana Singleton entered the safe deposit box by himself. Upon this entrance, Petitioner Dana Singleton asserted that $60,000.00 in cash, jewelry, and personal documents were missing from the box. Dana Singleton subsequently returned home, reported to his mother that items were missing from their box, and the two of them returned to the Bank together in the early afternoon. The Singletons reported their assertions to the Bank. The petitioners filed suit against the Bank, raising claims under breach of contract, conversion, tort of outrage, punitive damages, negligence, breach of fiduciary duty, and compensatory damages. The Bank thereafter filed for summary judgment. The circuit court held a hearing on this motion and considered the parties submitted depositions and pleadings. Consequently, upon this review and consideration, the circuit court granted the Bank summary judgment. It is this order that petitioners appeal, arguing that the circuit court erred in granting the Bank s motion for summary judgment. We have held that [a] circuit court s entry of summary judgment is reviewed de novo. Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Carr v. Michael Motors, Inc., 210 W.Va. 240, 244, 557 S.E.2d 294, 298 (2001). [A] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law. Syl. pt. 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). Syl. Pt. 2, Carr v. Michael Motors, Inc., 210 W.Va. 240, 557 S.E.2d 294 (2001). After careful consideration of the merits of the parties arguments as set forth in their briefs and after a review of the submitted appendix and circuit court order, the Court finds no error in the circuit court s order granting summary judgment to Respondent Bank. Accordingly, the Court fully incorporates and adopts the circuit court s detailed and wellreasoned Order Granting [Respondent], The Citizens Bank of Weston, Inc. s, Motion for Summary Judgment, entered on March 1, 2011, and attaches the same hereto. For the foregoing reasons, we affirm. Affirmed. ISSUED: February 13, 2012 CONCURRED IN BY: Chief Justice Menis E. Ketchum Justice Robin Jean Davis Justice Brent D. Benjamin Justice Margaret L. Workman Justice Thomas E. McHugh 2 I 11- 05'70 IN THE CIRCUIT COURT OF LEWIS COUNTY, WEST VIRG~lA DANA SINGLETON and NANCY SINGLETON, , ¢ ¢. ¢ 'l Plaintiffs, v. CIVIL ACTION NO. 09-C-146 THE CITIZENS BANK OF WESTON, INC., -~ Defendant. ORDER GRANTING DEFENDANT, THE CITIZEN'S BANK OF WESTON, INC.'S, MOTION FOR SUMMARY JUDGMENT On the 15 th day of February, 2011, came Defendant, The Citizen's Bankf of Weston, Inc., i (hereinafter "Defendant"), by Martin 1. Riley, its corporate representative, and y W. T. Weber, Jr., Esquire, and W. T. Weber, III, Esquire, its counsel, and Plaintiffs, Dana Sinfeton and Nancy Singleton, (hereinafter "Plaintiffs"), in person and by Erika K. Kolenich, Esquine, their counsel, i for hearing on Defendant's Motion for Summary Judgment having been duly filed with the Court C!Jld served on Plaintiffs February 4, 2011, pursuant to Rule 56 of the West Virgjnia Rules a/Civil Procedure. Thereupon, the Court heard the argument and representations of counsell for Defendant ! The Citizen's Bank of Weston, Inc., in support of its Motion for Summary Judgment. Thereupon, the Court heard the argument and representations of counsel for Plaintiffs Dana Singleton and Nancy Singleton, in opposition to Defendant's Motion for Summary Judgment. Upon consideration of the pleadings, depositions, answers to discovery 1n file, the Defendant's Motion for Summary Judgment and the exhibits attached thereto, ~d the Plaintiffs' Response to Defendant's Motion for Summary Judgment, and the exhibits and ~ffidavit of John I 1 ENTERED 800KNO. IN~IVILORD. ER PAGE _____ Noulton, attached thereto, the Court makes the following FINDINGS OF FACt and CONCLUSIONS OF LAW: 1. That Defendant timely filed its Motion for Summary Judgment wit the Court and served same on Plaintiffs February 4, 2011, in compliance with Rul 56(c) of the West Virginia Rules a/Civil Procedure. 2. Defendant is a local, community bank with its principal place of op ration in Weston, Lewis County, West Virginia. It is a chartered bank by the State ofWest Virginia and insured by the F. D. 1. C. It has been in continuous operation for over 108 years. 3. Plaintiffs, Dana Singleton and Nancy Singleton, (hereinafter "Plain~ffs"), are residents of Orlando, Braxton County, West Virginia. They are relaited by blood, being mother and son. (Dana Singleton Tsp. pg. 6; Nancy Singleton Tsp. pg. 5). 4. Plaintiffs are unemployed, both receiving social security benefits. 5. On June 25,2003, Plaintiffs leased safe deposit box number 3835 fr m Defendant at its main office in Weston. The box was leased to both Plaintiffs wh executed not only the Safe Deposit Box Lease Agreement, but also the signature pecin:1en card for access to said safe deposit box. 6. The June 25, 2003, Safe Deposit Box Lease Agreement sets forth tJe contractual obligations ofthe parties in regard to the lease of Safe Deposit Box No. 3835 by Plaintiffs from Defendant Bank:. I 7. Paragraph 1 of the June 25, 2003, Safe Deposit Box Lease Agreement states: "The SOLE duty of the Bank is to exercise reasonable care to pr vent the opening of the Safe by anyone other than the Renter or his duly qu ified deputy or legal representative. The Bank shall not be liable for any oss by fire, THEFT, burglary, robbery, embezzlement, or any other cause less it failed to exercise reasonable care to prevent the occurrences", (Em hasis added), 8. Paragraph 11 of the June 25, 2003, Safe Deposit Box Lease Agreement states: "This lease SHALL NOT be construed to create any relation ofijailor and bailee between the renter and the Bank; the Bank: has NO KNOWLEDGE 6f and EXERCISES NO SUPERVISION OVER articles deposited in the Safe", (Emphasis added). 2 9. Paragraph 12 of the June 25,2003, Safe Deposit Box Lease Agreement states, in part, that: "If two or more persons are named herein as Renter, this lease t en effects for such persons a joint tenancy in the Safe and in this lease, with ri ht of survivorship and not a tenancy in common therein, but shall not, of 'tself, affect the title to any contents of the Safe. In such case, this lease S1} all then have equal and individual application to each of such persons. Wit out limiting the generality of the foregoing, each of such persons ALO E may have access to the Safe ... ". (Emphasis added). 10. Paragraph 13 of the June 25, 2003, Safe Deposit Box Lease Agreement states, in part, that" "[The] Bank shall not be liable for any loss or damage caused bt failure oflocks on the vault doors or locks thereof to operate ..." 11. The safe deposit boxes are located in Defendant Bank's main vault. The vault is secured by a time lock and other safeguards. 12. The safe deposit box leased by Plaintiffs was located in Defendant ank's main vault. 13. Access to the vault is maintained by a "vault clerk", an employee 0 Defendant Bank:. The vault clerk is positioned at the front entry to the vault and is ch ged with checking and verifying all entrants to the vault and safe deposit box. s. (Kimberly Blake Tsp. pg. 14). . 14. Defendant Bank's safe deposit boxes are each double locked. Each ~dividual safe deposit box has two (2) locks on it. Two (2) separate keys are requited to open an individual box. Each renter is given one (1) key and Defendant Bank maintains a "guard key" for the second lock. Both the renter's key and the Bank1 guard key must be inserted and turned in a like direction to open the box. \Vithout 'oth keys, entry to the box is impossible. (Kimberly Blake Tsp. pgs. 8-11). 15. In this case, each Plaintiff, as a renter, received one (1) key. 16. Defendant Bank follows a recognized procedure to verify the signat es of safe deposit box renters each time the renter enters the bank and seeks ac ess to their particular safe deposit box. Upon verification that the signatures ar the same, the individual is then required to sign the Safe Deposit Admission Recod Card, which indicates the date and time the box is accessed by the renter, and the permitted entry to the vault. (Kimberly Blake Tsp. pg. 8). 17. The procedure followed by Defendant Bank for granting access to a afe deposit box by a renter is that upon entry of the bank, the renter goes to the vault clerk and requests access. The renter is presented with the Admission Card Wi. ch the renter 3 must sign. The vault clerk then verifies the signature with the siJature sample. If all matches, the renter is permitted access. The vault clerk enters the ivault with the renter. The renter produces his key and the vault clerk produces t~e Bank's "guard key". Both parties open the box door by unlocking the separate locks. (Each safe deposit box has two locks). The box is removed and placed upon shelf for use by the renter. The vault clerk immediately exits the vault upon openipg the box door so as to not infringe upon the privacy of the renter. The vault clerk r~moves and takes the "guard key" while leaving the renter's key in the lock in the inpividual box door. The renter goes about his business. When completed, the renter replaces the box, closes the safe deposit box door, locks the box door, removes his k;ey and exits the vault. (Kimberly Blake Tsp. pgs. 8-12; Kimberly Brown Tsp. pgS'115-18). r 18. Upon'exit, the renter is required to close the safe deposit box door and turn the renter's key to lock the box. The renter then removes his key and ~xits the vault. (The "guard key" having already been removed by the vault clerk liIpon opening of the box for the renter). (Kimberly Blake Tsp. pgs. 11-12). . 19. The vault clerk is never alone in the vault with either a renter's opied safe deposit box or the renter's safe deposit box key, the renter being present at1iall times with the vault clerk. (Kimberly Brown Tsp. pgs. 18). 20. The Bank is not aware of the contents of any renter's safe deposit ~ox. There are no cameras in the vault so as to maintain the renter's privacy. (Kimberly Brown Tsp. pg. 19). . 21. That the vault clerk is permitted to assist renters with the rePlacemJnt of the safe deposit box and locking ofthe door in the presence of the renters. CKimberly Blake Tsp. pg. 11-13). I 22. According to the Plaintiffs' Admission Card, Plaintiffs entered Safd Deposit Box No. 3835 a total often (10) times from June 25, 2003, through April 24, 2009. l i 23. Plaintiffs aver that they placed in Safe Deposit Box No. 3835 the sUjrn and amount of $60,000.00, cash, in sixty (60) $1000.00 rubber band bundles of$IQO.OO dollar bills. This cash was placed in a plastic "Wal-Mart" bag in the said safe deposit box. Moreover, Plaintiffs claim to have placed at least two (2) non-descriJpt rings and some personal documents in the safe deposit box as well. Plaintiffs claimldual ownership of the cash and jewelry, while the personal documents were the property of Mr. Singleton. (Dana Singleton Tsp. pgs. 30-31; 38-40). I 24. Plaintiffs produced no exact or specific evidence of where they obta'ned the six hundred (600) one hundred dollar bills alleged to be in Safe Deposit Box 3835. 25. Plaintiffs aver that the above stated items were in Safe Deposit Box 0.3835 as of September 22, 2008. Plaintiffs further aver that the items were miss ng from Safe 4 Deposit Box 3835 on April 24, 2009. (Dana Singleton Tsp. 22-24; ~ancy Singleton Tsp. pgs. 17-22). 26. Plaintiffs each testified that they were both present on September 2 , 2008, when Safe Deposit Box No. 3835 was opened. (Dana Singleton Tsp. pg. 3; Nancy Singleton Tsp. pg. 16-17). 27. On April 24, 2009, there were two (2) entries to Safe Deposit Box 0.3835. At 9:57 a.m., Plaintiff Dana Singleton entered Safe Deposit Box No. 3835 b himself. He testified that he noticed the contents outlined above missing. He m de no report to Bank personneL He closed the box and left the Bank. He further te. tified that he went home, got his mother, Plaintiff Nancy Singleton, and returned· 0 the Bank. Plaintiffs then entered Safe Deposit Box No. 3835 for a second time at 1:20 p.m., on April 24, 2009. (Dana Singleton Tsp. pgs. 20-23). 28. It was only after Mr. Singleton's morning visit to the safe deposit b .x on April 24, 2009, that he reported the contents above missing to Defendant Ba . (Dana Singleton Tsp. pgs. 35-36). the money, jewelry or personal documents alleged to have been plac d in Safe Deposit Box No. 3835 were ever actually in said Safe Deposit Box 835. 30. Count One of Plaintiffs' Amended Complaint alleges breach of con~act. 31. Based upon the June 25, 2003, Safe Deposit Box Lease Agreement, ks executed by the parties hereto, Plaintiffs as Renters were responsible for the placement and removal of items in Safe Deposit Box No. 3835. 32. The only "evidence" that Plaintiffs produced to support their claims s a). the testimony of Plaintiffs that the items were placed in Safe Deposit B No. 3835, and that the items were in said Safe Deposit Box No. 3835 on Septembe 22,2008, and b). that on September 22, 2008, the vault clerk, Kim Blake, was left tlone in the vault with the Plaintiffs' safe deposit box key for a period of five to ten se onds, (Answer to Defendant's Interrogatory No. 15), or five minutes. (Dana Single on Tsp. pgs. 24 26 and pgs. 57-58; Nancy Singleton Tsp. pgs. 19-21). . 33. Plaintiffs' have not shown a material fact that evidences and support1 their inferred claim that on September 22, 2008, either the vault clerk removed the items or failed to secure the safe deposit box lock on exit allowing anot.1.er patron a<ycess to Safe Deposit Box No. 3835. . 34. Each Plaintiff testified that neither saw the vault clerk, (Kimberly Bl e), remove anything from the safe deposit box on September 22,2008, or any ot er date. (Dana Singleton Tsp. pg. 58; Nancy Singleton Tsp. pgs. 19-20). 5 35. Plaintiff Dana Singleton has testified that he "was not for sure" vault clerk took his items. (Dana Singleton Tsp. 58). w~n asked if the · f ¢ 36. On April 24, 2009, Plaintiffs did not to report to Defendant Bank t t the vault clerk had remained in the vault with their safe deposit key unattended. ( imberly Brown Tsp. pg. 15). . i 37. Plaintiffs' allegation that the vault clerk was alone in the vault withitheir key was not contained in either written complaint of Plaintiff Dana Singleton lotged with the FDIC and the West Virginia Division of Banking. 38. Plaintiff Dana Singleton testified that his view ofthe safe deposit b6x was blocked by his mother on September 22,2008, and therefore could not testify t1· anything regarding the locking of the box. (Dana Singleton Tsp. pg. 26). 39. Plaintiff Nancy Singleton testified that she clearly saw Ms. Blake close the safe deposit box door and lock it (Nancy Singleton Tsp. pgs. 18-20). ¢ Si~eton the key 40. Plaintiffs have stated that the vault clerk handed Plaintiff Nancy immediately upon locking the safe deposit box for Plaintiffs on September 22, 2008. I (Answer to Defendant's Interrogatory No. IS). . 41. The vault clerk, Kimberly Blake has testified that she was never a1+e in the vault with the Plaintiffs' opened safe deposit box, ever. (Kimberly Blake Tsp. pg. 17). 1 42. The vault clerk, Kimberly Blake testified that she did not ever rec Plaintiffs starting to exit the vault or actually exiting the vault while she had p ssession of theu safe deposit box key. (Kimberly Blake Tsp. pg. 17). ¢ dr· i 43. The uncontested testimony of both Plaintiffs, as verified by vault k Kim Blake and the Admission Record for Safe Deposit Box No. 3835, is that 0 ly Plaintiff Dana Singleton had sole unrestricted access to Safe Deposit Box No. 383 on April 24, 2009, at 9:57 a.m. (Dana Singleton Tsp. pg. 28; Nancy Singleton Isp. pg. 21; Kimberly Blake Tsp. pg. 26). ! 44. Plaintiff Dana Singleton'S vague allegation that the lock on the door IOf Safe Deposit Box No. 3835 was "malfunctioning" on September 22, 2008, (Dana ~ingleton Tsp. pg. 26) is not supported by evidence. 45. Plaintiff Nancy Singleton testified to no malfunction of the locks on kafe Deposit Box No. 3835 and that she clearly saw the vault clerk, Kimberly Bl*e, lock the safe deposit box door on this date. (Nancy Singleton Tsp. 18-19). . 6 46. Neither Plaintiff made any report to the Bank that the locks on Safe peposit BoxNo. 3835 ever "malfunctioned". (Dana Singleton Tsp. 27). (Kimberly $rown Tsp. pgs. 10-14). . 47. Plaintiff Dana Singleton did not report any lock "malfunction" in his written reports to the FDIC or the West Virginia Division of Banking. 48. Plaintiffs' assertion that Safe Deposit Box No. 3835 could have bee$. left open on September 22, 2008, is not supported by any credible evidence. It i~ uncontested that Safe Deposit Box No. 3835 was closed and locked upon Plaintiffs' t(etum April 24, 2009. In that Plaintiffs testimony indicates that they had possession both of their keys in their possession the entire time from September 22, 2008, to April 24,2009, it is not possible for Safe Deposit Box 3835 to have remained open after the September 22, 2008, entry and have been closed and locked by anyone thereafter without Plaintiffs' key. Once the renter key is removed, the lock mechanism engages and the deadbolt will set The deadbolt cannot be deactivated without the renter and guard key being used together in unison. (Kimberly Blake Tsp. 10; Kimberly Brov"TI Tsp. 16). . I 49. Plaintiffs' testimony indicates that they made written and oral report of their allegations to the FDIC, \Vest Virginia Division of Banking, the We ton Police Department, the West Virginia State Police, the Federal Bureau ofl vestigation, the Federal Trade Commission, the West Virginia Attorney General an possibly the Securities and Exchange Commission. (Dana Singleton Tsp. 46-51) No threatened or punitive action was taken by any of these entities against Defend t Bank. (Dana Singleton Tsp. 50-51; Kimberly Brown Tsp. pg. 20). 50. Based upon the evidence presented to the Court, it appears that Defe dant Bank, at all times, secured the Plaintiffs' safe deposit box in the Bank's main va It. It maintained restricted access at all times with a vault clerk. The same vault cler checked Plaintiffs in on each visit All signatures and identities were verifie prior to granting of access. There is no credible evidence the vault clerk was ever alo e with the Plaintiffs' open safe deposit box. There were no malfunctions repo ed to the Defendant regarding the operation ofthe Plaintiffs' safe deposit box or locks. No keys were reported stolen or missing regarding Plaintiffs' safe depo it box. The evidence clearly indicates that the only persons with access to Safe eposit Box 3835 were Plaintiffs. 51. The uncontroverted testimony is that the only person with unattende access to Safe Deposit Box No. 3835 was Dana Singleton on the morning of April 4,2009, at 9:57 I a.m. 52. The Court concludes as a matter of law that Plaintiffs have not prodled a material question of fact through their pleadings, depositions or discovery responses that evidences and verifies their allegations that the Defendant failed to exercise 7 reasonable care to prevent loss, thereby negating their breach of con ract claim and negligence claim. Their claims are speculation and conjecture with ut verification 53. Count Two of Plaintiffs' Amended Complaint alleges Conversion. 54. The June 25, 2003, Safe Deposit Box Lease Agreement specifically states: "This lease SHALL NOT be construed to create any relation of bailor and bailee between the renter and the Bank; the Bank has NO KNOWLEDGE of and EXERCISES NO SUPERVISION OVER articles deposited in the Safe". (Emphasis added). 55. Plaintiffs have produced no evidence that Defendant Bank wrongful yexercised authority over Plaintiffs' property. The record is devoid of any fact that the Defendant assumed control of the contents of Plaintiffs' safe deposi Plaintiffs' exclusion. 56. From the evidence before it, the Court concludes that the legal theor of conversion is not supported and that the Plaintiffs have failed to produce any mate ial fact supporting a conversion. 57. Count Three of the Amended Complaint alleges the tort of outrage. 58. Based upon the evidence before it, the Court finds that Plaintiffs ha e not produced a material fact that evidences that Defendant Bank took any intention I or reckless action to specifically harm them, let alone an intentional or reckless ction that was so extreme and outrageous that it exceeded the bounds of decency, that any action so taken by the Defendant was so taken with the specific intent to infli t emotionai distress upon Plaintiffs, that Plaintiffs have actually suffered emotio al distress, and that any emotional distress suffered allegedly by Plaintiff, as alleged y caused by Defendant Bank, was so severe that Plaintiffs, as reasonable persons could not be expected to endure it. 59. Plaintiffs have produced no medical records of any type or other evi enCe to support their claim of tort of outrage. 60. Count Four ofthe Plaintiffs' Amended Complaint alleges that Plaint ffs' are entitled to punitive damages. 61. Plaintiffs have not produced a material fact that evidences that Defe gross fraud, malice, oppression or wanton, willful or reckless condu t or criminal indifference to civil obligations affecting the rights of Plaintiffs. 62. The Court finds that the Plaintiffs' testimony regarding their own e ewitness accounts of the incidents giving rise to the allegations stated in the ended Complaint do not support Plaintiffs' allegation for an award ofpunit ve damages. 8 63. To the extent that Plaintiffs seek recovery for a breach of contract, i is the finding of the Court that the law in West Virginia prohibits an award for puniti e damages in breach of contract actions. (Cotton v. Otis Elevator Co., 627 F. Sup. 519, (S.D.W.Va. 1986), citing Horn v. Bowen, 67 SE2d 737, (W.Va. 195 ) and Teller v. McCoy, 253 SE2d 114 (W.Va. 1979)). 64. Count Five of the Plaintiffs' Amended Complaint alleges negligenc . 65. The obligations of Defendant Bank are spelled out in the June 25, 2 03, Safe Deposit Box Lease Agreement, signed by both Plaintiffs. 66. Plaintiff Dana Singleton testified that he read, understood and signe said June 25, 2003, Safe Deposit Box Lease Agreement. (Dana Singleton Tsp. pg 15). 67. PlaintiffNancy Singleton testified that she also signed the June 25, Deposit Box Lease Agreement. (Nancy Singleton Tsp. pg 12). 68. The uncontested testimony is that Defendant Bank performed its obI gations under the contract. (Kimberly Brown Tsp. pg. 13). 69. The Court finds that Defendant Bank provided a safe and secure va t for the safe deposit box. It employed a qualified and experienced vault clerk th monitored vault access continually during hours of operation. Defendant Bank adhe ed to strict, internal admission protocols, including routine safe deposit box rent r identity and signature checks. Defendant Bank conducts reference checks and cr dit report checks of its employees. (Martin Riley Tsp. pg. 7). Additionally, testimon indicates that Defendant Bank employs the use of security cameras in the Bank, in luding the vicinity of the vault door. (Kimberly Brown Tsp. pg. 20). There are no cameras in the vault for privacy reasons. 70. The Court finds that Defendant Bank did investigate the claim of PI intiffs' regarding missing safe deposit box contents. (Kimberly Brown Tsp. 18-19). 71. Plaintiffs have not shown a material fact that evidences and supports their claim that Defendant Bank was negligent in the performance of its safe deposit box services. 72. Plaintiffs have not shown a material fact evidencing that Defendant ank failed to use such care as a reasonable, prudent and careful person would use und r similar circumstances. 73. Plaintiffs have not produced any material or credible evidence suppo ing their allegation that Defendant Bank was negligent in this action. 9 74. That none of the investigating agencies contacted by Plaintiffs iSSU~ any report of negligence or wrongdoing on the part of Defendant Bank in this acln. 75. Plaintiffs' reference to the "opinion" of banking expert, John Moulton, is materially unresponsive. The "opinion" as produced at this hearing was unexeyuted. Plaintiff filed the same "opinion", materially unchanged, on or about February 21, 2011, with an executed signature page and California All-Purpose Acknowledgement being attached thereto. The Court finds that the "opinion" as submitted b~PlaintiffS not to comply with the filing requirements for an affidavit in opposition as mandated by Rule 56(e) of the West Virginia Rules o/Civil Procedure. It does n t appear to be based on the expert's personal knowledge nor set forth any relevant. act of evidence for the Court. The opinion vaguely references "Safe Deposit Proced.ures" from an unknown source, relies solely upon the Plaintiffs own self serving te~timony and is conclusory in nature. There is no independent analysis referenced in the opinion. The Court finds the "opinion" of Plaintiffs' expert banking witness tksupportive of any material fact before the Court. I Wh~ny 76. The Court recognizes that, "An expert witness's affidavit that is conclusory and devoid ofreasoning does not comply with Rule 56(e)". Jividen v. Law, 461 SE2d 451 (W.Va. 1995). 77. Count Six of Plaintiffs' Amended Complaint alleges breach of fidUCf'ary duty. 78. Based upon the June 25, 2003, Safe Deposit Box Lease Agreement, 0 bailment was created, so no fiduciary duty was created. 79. Plaintiffs have not produced any material or relevant fact evidencin& the existence of a fiduciary relationship existing between Plaintiffs and Defendant inl this action, nor the breach thereof. ¢ tO~Ubstantiate 80. The Court finds that Plaintiffs have failed to show a material fact any claim of theft regarding the alleged removal of the contents of Safe eposit Box No. 3835 by Defendant Ba..n...k, and concludes as a matter of law that Defi.ndant Bank is not liable for any alleged criminal act or intentional violation oflaw, if any, of Defendant's employee taken outside the scope of employment and Without authorization. 8 I. The West Virginia Supreme Court holds that: "If the evidence favoring the nonmoving party is merely colorab e, not significantly probative, irrelevant, or unnecessary, a genuine issue of material fact does not arise, and summary judgment is appropriate". Jividen v. Law, 'Il-61 SE2d 451, CW. Va. 1995). . 10 82. Moreover, the West Virginia Supreme Court holds that: "The evidence illustrating the factual controversy [necessary in rdef to support the denial of a motion for summary judgment] cannot be conjec ural or problematic". Williams v. Precision Coil, Inc., (W. Va. 1995). "Rule 56 requires a nonmoving party to produce specific facts th t ... raise significant issues of credibility. The nonmoving party is required to rna e this showing because he is the only one entitled to the benefit of all reasonab e or justified inferences when confronted with a motion for summary judgm nt. Inferences and opinions must be grounded on more that flights of fancy,! speculations, hunches, intuition, or rumors." Id ! 83. The Court concludes as a matter of law that that Defendant Bank's Motion for Summary Judgment is made and supported by Rule 56 of the West Virginia Rules of Civil Procedure. 84. The Court further concludes as a matter of law that Plaintiffs, as the dverse party to the Defendant's Summary Judgment Motion, have rested upon mere allegation, supposition, conjecture and denials as set forth it their pleadings. PI intiffs have not produced any material or credible fact, including any affidavit in sup ort thereof, to evidence a genuine issue for trial. 85. The Court further concludes as a matter oflaw that Plaintiffs have ndt shown that there is a genuine issue as to any material fact and, therefore, Defendant Bank is entitle to an award of Summary Judgment as a matter of law. Based upon the above FINDINGS OF FACT and CONCLUSIONS OF LAW, it is accordingly ADJUDGED and ORDERED that: 1. Defendant, The Citizen's Bank of Weston, Inc's., Motion for Surnm ry Judgment be and it is hereby granted. 2. That this civil action be and it is hereby dismissed, with prejudice, removed from the Court's active docket. 11 d permanently 3. The Court directs the Clerk of forward certified copies of this Order to all counsel of record. Enter: mDG INZMAN 12

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