627 S.E.2d 276
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
element of his claim; or (3) that the non-moving party cannot surmount an affirmative defense
care under the circumstances then prevailing, which an ordinarily prudent person of discretion and
intelligence, who is a fiduciary of the property of others would observe as such fiduciary; and if the
fiduciary has special skills or is named a fiduciary on the basis of representation of special skills or
expertise, the fiduciary is under a duty to use those skills.
(recodified from by S.L.2005-192, § 1, eff. 1 Jan. 2006).
The dispositive portions of the 1977 Trust, which Mr. Maxwell admits is the only trust from which funds
were disbursed into Mr. Union’s checking account, provide in relevant part:
1. DISPOSITIVE PROVISIONS.
The Trustees shall hold, manage, invest and reinvest the trust property, and shall collect the income
thereof and dispose of the net income and principal as follows:
In this Court distinguished between the mandatory and discretionary powers of a trustee, stating:
[a] power is mandatory when it authorizes and commands the trustee to perform some positive act…. A
power is discretionary when the trustee may either exercise it or refrain from exercising it, … or when the
time, manner, or extent of its exercise is left to his discretion.
(internal citation and quotation omitted). “The court will always compel the trustee to exercise a
to Mr. Union’s checking account, regardless of Mr. Union’s alleged mental incompetency at the time of the
request. In distributing the funds from the 1977 Trust to Mr. Union’s account at his request, BB&T
performed the duties expressly required by the 1977 Trust Agreement. Because there is no evidence in
the record to support a breach of BB&T‘s fiduciary duty as it relates to the 1977 or the 1981 Trust, Mr.
Maxwell’s assignment of error is without merit.
one year after the statement or items are made available to the customer … discover and report the
customer’s unauthorized signature on or any alteration on the item is precluded from asserting against the
bank the unauthorized signature or alteration.
. As a matter of first impression, to interpret the language of to determine whether Mr. Maxwell’s claims
are precluded, we first look to the plain meaning of the statute. . Where the language of a statute is
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
clear, the courts must give the statute its plain meaning; however, where the statute is ambiguous or
unclear as to its meaning, the courts must interpret the statute to give effect to the legislative intent.
Notwithstanding, “where a literal interpretation of the language of a statute will lead to absurd results, or
contravene the manifest purpose of the Legislature, as otherwise expressed, the reason and purpose of
the law shall control and the strict letter thereof shall be disregarded.” (internal quotation and citation
omitted).
In this case, we conclude that the language of is clear: failure of a customer or his representative to
report his unauthorized signature within one year after the bank makes account statements available
precludes a claim against the bank, even if the customer is incompetent (whether adjudicated or
see also (holding that the one-year notice requirement for filing a claim against a bank for forged checks
governed the time within which a party to a contract was obligated to act, and was not a statute of
limitations subject to tolling); (same).
Here, the undisputed record shows that during the period of 1997-2000, BB&T sent monthly statements
and returned checks to Mr. Union’s residence. Mr. Johnson, who was Mr. Union’s personal assistant and
triggered until he was appointed guardian of Mr. Union’s estate, Mr. Maxwell’s claims would still be barred
by the statute. The record shows that Mr. Maxwell obtained the allegedly forged checks from BB&T by
mid-July 2001. At the earliest, Mr. Maxwell notified BB&T of the unauthorized signatures by letter dated
1 August 2002, which is still outside the one–year notification period required in . We reject Mr. Maxwell’s
contention that a material factual dispute exists as to whether Mr. Maxwell’s “freezing” Mr. Union’s
summary judgment on Mr. Maxwell’s claim of negligent payment on forged checks drawn on Mr. Union’s
checking account.
Affirmed.
element of his claim; or (3) that the non-moving party cannot surmount an affirmative defense
care under the circumstances then prevailing, which an ordinarily prudent person of discretion and
intelligence, who is a fiduciary of the property of others would observe as such fiduciary; and if the
fiduciary has special skills or is named a fiduciary on the basis of representation of special skills or
expertise, the fiduciary is under a duty to use those skills.
(recodified from by S.L.2005-192, § 1, eff. 1 Jan. 2006).
The dispositive portions of the 1977 Trust, which Mr. Maxwell admits is the only trust from which funds
were disbursed into Mr. Union’s checking account, provide in relevant part:
1. DISPOSITIVE PROVISIONS.
The Trustees shall hold, manage, invest and reinvest the trust property, and shall collect the income
thereof and dispose of the net income and principal as follows:
In this Court distinguished between the mandatory and discretionary powers of a trustee, stating:
[a] power is mandatory when it authorizes and commands the trustee to perform some positive act…. A
power is discretionary when the trustee may either exercise it or refrain from exercising it, … or when the
time, manner, or extent of its exercise is left to his discretion.
(internal citation and quotation omitted). “The court will always compel the trustee to exercise a
to Mr. Union’s checking account, regardless of Mr. Union’s alleged mental incompetency at the time of the
request. In distributing the funds from the 1977 Trust to Mr. Union’s account at his request, BB&T
performed the duties expressly required by the 1977 Trust Agreement. Because there is no evidence in
the record to support a breach of BB&T‘s fiduciary duty as it relates to the 1977 or the 1981 Trust, Mr.
Maxwell’s assignment of error is without merit.
one year after the statement or items are made available to the customer … discover and report the
customer’s unauthorized signature on or any alteration on the item is precluded from asserting against the
bank the unauthorized signature or alteration.
. As a matter of first impression, to interpret the language of to determine whether Mr. Maxwell’s claims
are precluded, we first look to the plain meaning of the statute. . Where the language of a statute is
© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.
clear, the courts must give the statute its plain meaning; however, where the statute is ambiguous or
unclear as to its meaning, the courts must interpret the statute to give effect to the legislative intent.
Notwithstanding, “where a literal interpretation of the language of a statute will lead to absurd results, or
contravene the manifest purpose of the Legislature, as otherwise expressed, the reason and purpose of
the law shall control and the strict letter thereof shall be disregarded.” (internal quotation and citation
omitted).
In this case, we conclude that the language of is clear: failure of a customer or his representative to
report his unauthorized signature within one year after the bank makes account statements available
precludes a claim against the bank, even if the customer is incompetent (whether adjudicated or
see also (holding that the one-year notice requirement for filing a claim against a bank for forged checks
governed the time within which a party to a contract was obligated to act, and was not a statute of
limitations subject to tolling); (same).
Here, the undisputed record shows that during the period of 1997-2000, BB&T sent monthly statements
and returned checks to Mr. Union’s residence. Mr. Johnson, who was Mr. Union’s personal assistant and
triggered until he was appointed guardian of Mr. Union’s estate, Mr. Maxwell’s claims would still be barred
by the statute. The record shows that Mr. Maxwell obtained the allegedly forged checks from BB&T by
mid-July 2001. At the earliest, Mr. Maxwell notified BB&T of the unauthorized signatures by letter dated
1 August 2002, which is still outside the one–year notification period required in . We reject Mr. Maxwell’s
contention that a material factual dispute exists as to whether Mr. Maxwell’s “freezing” Mr. Union’s
summary judgment on Mr. Maxwell’s claim of negligent payment on forged checks drawn on Mr. Union’s
checking account.
Affirmed.