Present: Hassell, C.J., Kinser and Lemons, JJ., and Carrico
and Russell, S.JJ.
HALIFAX CORPORATION
OPINION BY
v. Record No. 032444 SENIOR JUSTICE HARRY L. CARRICO
November 5, 2004
WACHOVIA BANK
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Leslie M. Alden, Judge
Introduction
In the period from August 1995 to February 1999, Mary K.
Adams embezzled approximately $15.4 million while serving as
comptroller for companies that are now known as Halifax
Corporation (Halifax).1 Adams accomplished the embezzlement by
writing more than 300 checks on Halifax’s account with Signet
Bank and its successor, First Union National Bank
(collectively, First Union). Adams used a stamp bearing the
facsimile signature of Halifax’s president and, in her own
handwriting, made the checks payable to herself, to companies
she had formed, or to cash. She deposited the checks in
several accounts she maintained with Central Fidelity Bank and
its successor, Wachovia Bank (collectively, Wachovia),
receiving cash from some of the checks.
1
Halifax Corporation is a Virginia corporation and is
successor-in-interest to a former wholly owned subsidiary,
Halifax Technology Services Company, previously known as CMS
Automation, Inc. Hereinafter, we will refer to the three
entities collectively as Halifax.
Procedural Background
Upon discovery of the embezzlement, Halifax brought an
action against First Union as the drawee bank and Wachovia as
the depositary bank. (Halifax I.) The trial court granted
summary judgment in favor of First Union. Halifax then took a
nonsuit of the action against Wachovia and appealed to this
Court from the order dismissing First Union. We affirmed the
dismissal, holding that Halifax’s claim was barred pursuant to
Code § 8.4-406(f), part of the Uniform Commercial Code
(hereinafter, UCC), for Halifax’s failure to notify First
Union of the unauthorized signatures within one year after the
bank’s statement covering the checks in question was made
available to Halifax. Halifax Corp. v. First Union Nat’l
Bank, 262 Va. 91, 104, 546 S.E.2d 696, 704 (2001).
While the appeal to this Court was pending, Halifax filed
in the court below a three-count motion for judgment asserting
that Wachovia and First Union were liable to Halifax for the
amounts embezzled by Adams. (Halifax II.) Count I alleged
negligence, gross negligence, and bad faith on the part of
Wachovia in violation of Code §§ 8.3A-404, -405, and –406.
Count II alleged common law conversion by Wachovia and First
Union. Count III alleged that Wachovia and First Union aided
and abetted Adams’ breach of fiduciary duty.
2
The trial court dismissed the claims against First Union
on the ground of res judicata. This Court refused Halifax’s
petition for appeal from that dismissal. Halifax Corp. v.
First Union Nat’l Bank, March 5, 2002 (Record No. 012582).
Wachovia moved for summary judgment on Halifax’s claims
against it. The trial court granted the motion, holding,
contrary to Halifax’s contention, that Code § 8.3A-406 does
not create an affirmative cause of action, that Halifax’s
common law claim for conversion had been displaced by Code
§ 8.3A-420(a), and that Halifax had failed to allege
sufficient facts to state a cause of action for aiding and
abetting Adams’ breach of fiduciary duty, assuming such an
action exists. From the final order embodying these holdings
and granting final judgment in favor of Wachovia, we awarded
Halifax this appeal.
Factual Background
Since the trial court disposed of the case by granting
Wachovia’s motion for summary judgment, we will adopt those
inferences from the facts that are most favorable to Halifax,
the nonmoving party, unless the inferences are strained,
forced, or contrary to reason. Carson v. LeBlanc, 245 Va.
135, 139-40, 427 S.E.2d 189, 192 (1993). The facts as alleged
in Halifax’s motion for judgment show that Mary Adams, also
known as Mary Collins, became comptroller at Halifax’s
3
Richmond office in August 1995 and continued in that position
until March 1999. She maintained four personal and two
commercial accounts with Wachovia. One of the commercial
accounts was styled “Collins Racing, Inc.” and the other
“Collins Ostrich Ranch.”
When Adams first began embezzling money from Halifax in
August 1995, she deposited in her personal accounts with
Wachovia several checks each month for over $5,000.00. The
amounts of the checks soon increased to between $10,000.00 and
$15,000.00 each and before long to amounts ranging from
$50,000.00 to $150,000.00 each, and deposits were made
multiple times a day or week. For example, in July 1997,
Adams deposited on July 9 a check for $95,550.00, on July 14,
one check for $55,000.00 and another for $99,300.00, on July
16, a check for $93,500.00, on July 21, a check for
$80,600.00, and, on July 30, a check for $149,305.00, totaling
$573,255.00. In all, Adams drew 328 checks totaling
$15,429,665.42 on Halifax’s account with First Union.
Adams was “one of the best and largest individual
customers” of Wachovia’s branch where she did business.
Managers and tellers saw Adams “ ‘a lot,’ and she stood out
because of her large checks and banking activity.” The entire
branch was curious about her “because of her large checks,”
the likes of which “none of the tellers had ever seen . . .
4
before.” Some tellers claimed “to have believed or assumed
that Adams ‘was at least part owner’ of the corporate drawer.”
Wachovia “repeatedly accepted such huge handwritten
checks drawn on the account of Adams’ employer despite the
gross disparity with Adams payroll amount [of about $1,000.00
per pay period] shown on each teller and manager screen.” The
tellers “had concerns about individual checks or the check
activity, or both.” Bank officials knew Adams was Halifax’s
comptroller and understood that “such transactions by a
financial officer, or even a part owner, present[ed] a serious
potential for fraud.” Yet, branch “[m]anagers and supervisors
told the tellers to do whatever Adams wanted.”
Discussion
Negligence, Gross Negligence, and Bad Faith
Halifax contends that Code § 8.3A-406, when read in light
of Code §§ 8.3A-404 and –405, gives rise to an affirmative
cause of action for the negligence of a depositary bank with
respect to the alteration of an instrument or the making of a
forged signature. These sections were part of the General
Assembly’s 1992 revision of the UCC. 1992 Acts Ch. 693.
It should be noted at this point, however, that the trial
court stated in a footnote to its order granting Wachovia’s
motion for summary judgment that Halifax did “not contest
Wachovia’s motion as to Halifax’s claims under Va. Code 8.3A-
5
404 and 405,” and Halifax does not now press those claims.
Hence, we will consider Code §§ 8.3A-404 and –405 only in the
context of Halifax’s argument that they are pertinent to the
question whether Code § 8.3A-406 creates an affirmative cause
of action for the negligence of a depositary bank under the
circumstances of this case.
Code § 8.3A-406 provides as follows:
Negligence, contributing to forged signature or
alteration of instrument. — (a) A person whose failure to
exercise ordinary care substantially contributes to an
alteration of an instrument or to the making of a forged
signature on an instrument is precluded from asserting
the alteration or the forgery against a person who, in
good faith, pays the instrument or takes it for value or
for collection.
(b) Under subsection (a), if the person asserting
the preclusion fails to exercise ordinary care in paying
or taking the instrument and that failure substantially
contributes to loss, the loss is allocated between the
person precluded and the person asserting the preclusion
according to the extent to which the failure of each to
exercise ordinary care contributed to the loss.
(c) Under subsection (a), the burden of proving
failure to exercise ordinary care is on the person
asserting the preclusion. Under subsection (b), the
burden of proving failure to exercise ordinary care is on
the person precluded.
Code § 8.3A-404(a) deals with an instrument issued to an
impostor or to a person acting in concert with the impostor.
Subsection (b) deals with an instrument whose payee is
fictitious or not the person intended to have an interest in
the instrument by the person determining to whom the
6
instrument is payable. Both subsections provide that the
indorsement of such an instrument by any person in the name of
the payee is effective as the indorsement of the payee in
favor of a person who, in good faith, pays the instrument or
takes it for value or for collection.
Code § 8.3A-405 deals with the situation where an
employer entrusts an employee with responsibility with respect
to an instrument and the employee or a person acting in
concert with the employee makes a fraudulent indorsement of
the instrument. For a person who, in good faith, pays an
instrument or takes it for value or for collection, the
indorsement is effective as the indorsement of the person to
whom the instrument is payable if it is made in the name of
that person.
Both Code § 8.3A-404 and Code § 8.3A-405 contain an
important provision. In Code § 8.3A-404, the provision is
expressed in this language:
[I]f a person paying the instrument or taking it for
value or for collection fails to exercise ordinary care
in paying or taking the instrument and that failure
substantially contributes to loss resulting from payment
of the instrument, the person bearing the loss may
recover from the person failing to exercise ordinary care
to the extent the failure to exercise ordinary care
contributed to the loss.
(Emphasis added.) The language of Code § 8.3A-405 is
identical, except that the words “the fraud” are substituted
7
for the words “payment of the instrument” following the words
“loss resulting from” in the foregoing quotation.
In support of its contention that Code § 8.3A-406 creates
an affirmative cause of action, Halifax cites our decision in
Gina Chin & Assoc., Inc. v. First Union Bank, 256 Va. 59, 500
S.E.2d 516 (1998). That case involved both forged signatures
of the drawer and forged indorsements of the payee. The
drawer sought recovery from the depositary bank. The latter
claimed it was liable under Code §§ 8.3A-404 and –405 only for
forged indorsements and not where both the payee’s
indorsements and the drawer’s signatures are forged.
We disagreed. We stated that the depositary bank was
erroneous in “its conclusion that §§ 8.3A-404 and –405 cannot
be utilized by a drawer against the depositary bank in a
double forgery situation,” 256 Va. at 61, 500 S.E.2d at 517,
and that the drawer “was not precluded from asserting a cause
of action against [the depositary bank] pursuant to §§ 8.3 A-
404 or -405.” Id. at 63, 500 S.E.2d at 518.
Halifax quotes a passage from the Gina Chin opinion where
we stated that the “concept of comparative negligence
introduced in the revised sections reflects a determination
that all participants in the process have a duty to exercise
ordinary care . . . and that the failure to exercise that duty
will result in liability to the person sustaining the loss.”
8
Id. at 62, 500 S.E.2d at 517-18. Halifax argues that Code
§ 8.3A-406 also creates a duty of care and, therefore, that
“there exists [under Code § 3A-406] a right of action, as
expressly recognized in Gina Chin.”
It is plain, however, that the language quoted from Gina
Chin has reference solely to Code §§ 8.3A-404 and -405.
Indeed, the sentence immediately preceding the quotation
states that “[t]he revisions to §§ 8.3A-404 and –405 changed
the previous law by allowing ‘the person bearing the loss’ to
seek recovery for a loss caused by the negligence of any
person paying the instrument or taking it for value based on
comparative negligence principles.” Gina Chin, 256 Va. at 62,
500 S.E.2d at 517. Code § 8.3A-406 simply was not an issue in
the case in any manner. Gina Chin, therefore, does not serve
as authority for Halifax’s contention that Code § 8.3A-406
creates an affirmative cause of action.
Next, Halifax cites Official Comment 4 to Code § 8.3A-
406, which reads as follows:
Subsection (b) . . . adopts a concept of comparative
negligence. If the person precluded under subsection (a)
proves that the person asserting the preclusion failed to
exercise ordinary care and that failure substantially
contributed to the loss, the loss may be allocated
between the two parties on a comparative negligence
basis.
Halifax then says “[l]eading commentators recognize that
the concept of comparative negligence, duty, and loss
9
allocation provided in 3-406, like that in 3-404 and 3-405,
creates a cause of action.” Halifax quotes 2 James J. White &
Robert S. Summers, Uniform Commercial Code § 19-3 (4th ed.
1995) (hereinafter, White & Summers) to this effect:
“3-406 and the accompanying sections carry with them
something that did not exist under the old Code, namely,
a new cause of action.” Id. at 247. “This mechanism is
an affirmative cause of action for negligence under 3-
406(b)(and similar causes of action under 3-404, 3-405,
and 3-406) under which the depositor-employer recovers a
part of its loss by affirmative proof that the negligent
behavior of the defendant bank caused a portion of it.”
Id. “3-406(b) gives an affirmative cause of action.”
Id. at 248. “[T]he 1990 changes in 3-406, and the
analogous changes having to do with comparative
negligence in the other sections . . . are likely to
cause significant but subtle changes in the allocation of
civil liability.” Id. at 253.
According to Halifax, another White & Summers quotation
explains the “significance of the subtle language changes in
revised § 8.3A-406”:
[The] allocation of liability based on comparative
negligence is new, incorporated into the Code as part of
the 1990 amendments to Article[s] 3 and 4. Before the
1990 amendments, “preclusion” cases were standard
contributory negligence cases. A bank might first argue
that the customer was negligent, and the customer would
respond that the bank was contributorily negligent. If
both claims were proven, negligence would disappear from
the case and the bank would be barred from asserting the
customer’s negligence.
One consequence of adopting a comparative negligence
standard is that there will have to be wider recognition
of negligence as a basis not merely for defense
(preclusion), but also as a basis for asserting an
affirmative claim. For example, in section 3-406(a), a
depositor may be precluded from asserting alteration if
the depositor’s failure to exercise ordinary care
10
substantially contributed to the alteration. Under 3-
406(b), the “loss is allocated” between the two parties
if the bank also failed to exercise ordinary care.
Although it does not say so in terms, the “loss
allocated” language in 3-406(b) must be interpreted to
grant an affirmative cause of action to the depositor in
our hypothetical case as a means of recovering for that
part of the loss which the bank should bear. As the
statute is written, the bank’s negligence no longer lifts
the preclusion of 3-406(a), as it did before 1990.
Rather, the bank’s negligence gives other parties a cause
of action to recover an appropriate share under 3-406(b).
In that respect, the 1990 revisions state a subtle
modification of the theories of recovery, and not merely
a readjustment of the identity of those who bear losses.
White & Summers, § 19-1 at 239 (emphasis added) (footnotes
omitted).2
The views of White & Summers, however, are just not
compatible with Virginia law. They say that Code § 3A-406(b)
“must be interpreted” to create a cause of action. § 19-1 at
239. However, the rule in Virginia is that, unless the
language of a legislative enactment is ambiguous, “ ‘there is
no room for interpretation or construction; the plain meaning
and intent of the [enactment] must be given it.’ ” City of
Emporia Bd. of Zoning Appeals v. Mangum, 263 Va. 38, 41, 556
S.E.2d 779, 781 (2002) (quoting Board of Zoning Appeals of the
County of York v. 852 L.L.C., 257 Va. 485, 489, 514 S.E.2d
767, 769 (1999)).
2
Halifax also cites 1 Henry J. Bailey & Richard B.
Hagedorn, Brady on Bank Checks ¶ 1.27 at 1-81 (Rev. ed. 2004)
for the proposition that “[t]he allocation-of-loss or
comparative-negligence principle [contained in Code § 8.3A-
406] is new to commercial law and introduces a tort concept.”
11
“ ‘Language is ambiguous when it may be understood in
more than one way, or simultaneously refers to two or more
things.’ ” Supinger v. Stakes, 255 Va. 198, 205, 495 S.E.2d
813, 817 (1998) (quoting Lee-Warren v. School Bd. of
Cumberland County, 241 Va. 442, 445, 403 S.E.2d 691, 692
(1991)). For Code § 8.3A-406 to be declared ambiguous, its
language must lend itself to being understood in one way as
creating a cause of action and in another way as not creating
a cause of action. In our opinion, the statute cannot be
understood as creating a cause of action for several reasons.
In the first place, the term “cause of action” or “may
recover” or anything remotely resembling either term nowhere
appears in Code § 8.3A-406. And this Court cannot supply the
language that would have created an affirmative cause of
action under the circumstances of this case. “[C]ourts are
not permitted to rewrite statutes. This is a legislative
function. The manifest intention of the legislature, clearly
disclosed by its language, must be applied. There can be no
departure from the words used where the intention is clear.”
Supinger, 255 Va. at 206, 495 S.E.2d at 817 (quoting Anderson
v. Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944)).
Second, Official Comment 1 to Code § 8.3A-406 states that
subsection (a) “adopts the doctrine” that a “drawer who so
negligently draws an instrument as to facilitate its material
12
alteration [or its forgery] is liable to a drawee who pays the
altered [or forged] instrument in good faith.” (Emphasis
added.) But statutory language making a drawer liable to a
drawee cannot possibly be taken as showing an intention to
create a cause of action in favor of a drawer against a
depositary bank.
Third, Official Comment 1 further states: “Section 3-406
does not make the negligent party liable in tort for damages
resulting from the alteration. If the negligent party is
estopped from asserting the alteration the person taking the
instrument is fully protected because the taker can treat the
instrument as having been issued in the altered form.” We
will assume Halifax is correct in saying the comment means “3-
406 is not intended to make the negligent drawer subject to
preclusion liable in tort.” But Halifax is incorrect in
saying “the comment shows the converse was intended, that 3-
406 makes the bank liable in tort.” This is not only a non
sequitur but it is also contrary to the provision in the very
next sentence of the Comment, which states that “the person
taking the instrument is fully protected because the taker can
treat the instrument as having been issued in the altered [or
forged] form.” It is difficult to imagine how something that
is designed to protect the taker can logically be turned on
13
its head and used to create a cause of action against the
taker.
Finally, and of overriding importance, we follow the rule
in Virginia that “when the General Assembly includes specific
language in one section of a statute, but omits that language
from another section of the statute, we must presume that the
exclusion of the language was intentional.” Halifax I, 262
Va. at 100, 546 S.E.2d at 702. Strikingly absent from Code
§ 8.3A-406 is the specific language contained in Code §§ 8.3A-
404 and –405 that “the person bearing the loss may recover
from the person failing to exercise ordinary care.” The
General Assembly knows how to create a cause of action when
that is its intention, and the omission of the “may recover”
or similar language from Code § 8.3A-406 represents an
unambiguous manifestation of a contrary intention.
Halifax cites several out-of-state decisions in support
of its contention that “revised 3-406 provides a cause of
action, in favor of a drawer against a depositary bank.” Cited
are National Union Fire Ins. Co. v. Hibernia Nat’l Bank, 258
F.Supp.2d 490 (W.D. La. 2003); National Union Fire Ins. Co. v.
Allfirst Bank, 282 F.Supp.2d 339 (D. Md. 2003); Delta Textiles
New York, Ltd. v. Diaz, Docket No. BER-L-10648-01 (N.J. Super.
Ct. Oct. 24, 2003); Nat’l Union Fire Ins. Co. of Pittsburgh,
PA v. Sun Nat’l Bank, Docket No. MER-L-2894-03 (N.J. Super.
14
Ct. April 2, 2004); Atlantic Mutual Ins. Co. v. The Provident
Bank, 669 N.E.2d 901 (Oh. Mun. Ct. 1996). These are all trial
court decisions; we find them unpersuasive.3
One appellate decision cited by Halifax, Micro Experts,
Inc. v. Edison Tech., Inc., 701 N.E.2d 1033 (Oh. Ct. App.
1997), involved an Ohio statute that is the equivalent of our
Code § 8.3A-406. The court stated that “[o]rdinarily this
statute is used as a defense, rather than in support of a
claim.” Id. at 1039.4 But, the court continued, “[a]ssuming
arguendo that the statute may be raised” by the drawer of the
checks involved, the drawer still lost because it did not
“demonstrate that [the bank] failed to exercise ordinary
care.” Id. Halifax can take little comfort from this
decision.
Nor can Halifax find comfort in another appellate court
case it cites. In Wachovia Bank, N.A. v. Fed. Reserve Bank of
Richmond, 338 F. 3rd 318 (4th Cir. 2003), the court stated:
“U.C.C. § 8.3-406 . . . provides for a defense but does not
expressly create a cause of action. To the extent that such a
3
Delta Textiles and Sun Nat’l Bank are especially
unpersuasive. Both cases are still pending in the trial
courts where they were brought and both involve only pretrial
orders which may be subject to reversal upon reconsideration
by those courts or upon appeal. So, for the time being at
least, the two cases are of doubtful precedential value.
4
The court cited Fifth Third Bank of Toledo, N.A. v.
Dziersk, 12 F.3d 600 (6th Cir. 1993), as authority for the
quoted statement.
15
cause of action is cognizable, which we do not hold, we
conclude that summary judgment in favor of [the drawer] was
properly granted [because it was not shown] that the asserted
negligence of the [drawer] substantially contributed to the
alteration of the check.” Id. at 325.
Finally, Halifax cites a work of another of its “leading
commentators,” where it is stated that “[the] preclusion
provision [of Code § 8.3A-406] seems to be purely defensive in
nature, although conceivably [it] could constitute grounds for
affirmative action.” 2A Frederick M. Hart & William F.
Willier, Negotiable Instruments Under the Uniform Commercial
Code § 12.37 at 12-234 (2001). (Emphasis added.)5 This hardly
provides support for Halifax’s claim that Code § 8.3A-406
creates an affirmative cause of action for the negligence of a
depositary bank.
We conclude that the trial court did not err in its
holding that Code § 8.3A-406 does not create an affirmative
cause of action and in awarding summary judgment to Wachovia
with respect to that claim.
Common Law Conversion6
5
This quotation also appears in White Sands Forest
Prods., Inc. v. First National Bank of Alamogordo, 50 P.3d
202, 206 (N.M. App. 2002), where the court held that UCC § 3-
406 does not create an affirmative cause of action.
6
Count II of Halifax’s motion for judgment is labeled as
a claim for “COMMON LAW CONVERSION” and Count III is labeled
16
Code § 8.3A-420(a) provides as follows:
(a) The law applicable to conversion of personal
property applies to instruments. An instrument
is also converted if it is taken by transfer,
other than a negotiation, from a person not
entitled to enforce the instrument or a bank
makes or obtains payment with respect to the
instrument for a person not entitled to enforce
the instrument or receive payment. An action
for conversion of an instrument may not be
brought by (i) the issuer or acceptor of the
instrument or (ii) a payee or indorsee who did
not receive delivery of the instrument either
directly or through delivery to an agent or a
co-payee.
(Emphasis added.)
The term “instrument” means a negotiable instrument and
includes a check. Code § 8.3A-104(b) and (f). The term
“issuer” means a maker or drawer of an instrument. Code
§ 8.3A-105(c). The term “drawer” means a person who signs or
is identified in a draft as a person ordering payment. Code
§ 8.3A-103(3).
Under these statutory definitions and the facts as
alleged in Halifax’s motion for judgment, Halifax was the
issuer of the checks in question. It would appear, therefore,
as a claim for “AIDING AND ABETTING BREACH OF FIDUCIARY DUTY.”
Halifax now employs the unfamiliar label on its claim for
conversion as a “COMMON LAW CLAIM FOR CONVERSION FACILITATING
A BREACH OF FIDUCIARY DUTY” and otherwise intermingles its
argument on its claim for conversion with its argument on its
claim for aiding and abetting a breach of fiduciary duty.
These are separate claims, and we will treat them as such.
The claim for aiding and abetting will be discussed infra.
17
that Code § 8.3A-420(a)(i) would bar Halifax’s claim for
conversion.
Halifax contends, however, that Code § 8.3A-420 does not
displace a common law claim for conversion. In support of
this contention, Halifax cites Stefano v. First Union Nat’l
Bank of Virginia, 981 F.Supp. 417 (E.D. Va. 1997), where it is
stated:
Analysis properly begins with the terms of Virginia Code
§ 8.1-103,[7] which sets the standard for Code
displacement of the common law. This section provides
that “unless displaced by the particular provisions of
[the UCC], the principles of law and equity, including
the law merchant . . . supplement its provisions.” The
teaching of this section is plain: The common law action
for conversion is displaced by the Code only in
circumstances where Virginia Code § 8.3A-420 applies. In
other circumstances, common law conversion survives.
Id. at 420. Halifax then says that the drawer preclusion
contained in Code § 8.3A-420(a)(i) applies only to statutory
conversion and not to common law conversion.
We agree with the Stefano court’s “standard for Code
displacement of the common law,” but we disagree with
7
Code § 8.1-103 provides that “[u]nless displaced by the
particular provisions of [the UCC], the principles of law and
equity, including the law merchant and the law relative to
capacity to contract, principal and agent, estoppel, fraud,
misrepresentation, duress, coercion, mistake, bankruptcy, or
other validating or invalidating clause shall supplement its
provisions.” Although this statute was repealed in July of
2003, its successor, Code § 8.1A-103(b), features language
virtually identical to that just quoted here.
18
Halifax’s assertion that the drawer preclusion of Code § 8.3A-
420(a)(i) applies only to an action for statutory conversion.
In the first place, the language of Code § 8.3A-420(a)(i)
is unambiguous. In clear and unmistakable terms, in keeping
with Code § 8.1-103 and its successor, Code § 8.1A-103, it
specifically precludes a drawer of a check from bringing an
“action for conversion,” and there is no language in Code
§ 8.3A-420 that can possibly be read as limiting the
preclusion to an action for statutory conversion.
Furthermore, contrary to what Halifax would like us to
believe, Stefano does not support its position. The plaintiff
there, unlike Halifax here, was a co-payee of instruments that
were accepted by the bank without the plaintiff’s endorsement
and were deposited into an account in the sole name of the
other payee. The plaintiff asserted two claims against the
bank for conversion, one under Code § 8.3A-420 and another
under the common law. While the court made the statement
quoted above concerning the standard to be applied “for Code
displacement of the common law,” it actually held that the
plaintiff’s common law claim for conversion was displaced by
the provision in the second sentence of Code § 8.3A-420
allowing “an action for conversion where a ‘bank makes or
obtains payment with respect to a negotiable instrument for a
person not entitled to enforce the instrument.’ ” Id. at 420.
19
The court made this statement, which is equally applicable
here:
Plaintiff’s reliance on the first sentence of § 8.3A-420,
which states that “the law applicable to conversion of
personal property applies to instruments,” is misplaced.
This sentence merely states the general rule that where a
claim for conversion of a negotiable instrument is not
specifically covered by § 8.3A-420, then the claim will
be governed by the common law of conversion as it applies
generally to personal property. See Virginia Code § 8.1-
103. It does not disrupt, as plaintiff suggests, the
Code’s stated design that particular provisions of the
act may displace a cause of action under the common law.
See Id. In sum, then, § 8.3A-420 is plaintiff’s sole
conversion remedy.
Stefano, 981 F. Supp. at 421.
Once again, Halifax relies upon White & Summers to
support its argument that its claim for conversion has not
been displaced by Code 8.3A-420. Citing and quoting in part
from White & Summers, Halifax states that “this could not be a
clearer case where common law ‘make[s] one guilty of
conversion for dealing with an instrument in ways not
described by the statutory definition (second sentence)’ and
of ‘liability under the common law introduced into Article 3
by the first sentence of 3-420.’ 2 White & Summers § 18-4 at
216.”
But the full quotation from White & Summers indicates
that the case is not as clear as Halifax would like. The full
quotation is as follows:
20
Section 3-420’s opening sentence incorporates common
law conversion: “The law applicable to conversion of
personal property applies to instruments.” It is
conceivable, therefore, that the law of Minnesota or New
York or Florida might make one guilty of conversion for
dealing with an instrument in ways not described by the
statutory definition (second sentence). When that is so,
there will be liability under the common law introduced
into Article 3 by the first sentence of 3-420.
Id. (emphasis added). We need not speculate about what might
conceivably be the result if an instrument is dealt with in
some unidentified way not described by the statutory
definition. We know for certain what the result must be when
an instrument with a forged signature is the subject of a
claim for conversion brought by the issuer thereof. The
result is the dismissal of the claim. “An action for
conversion of an instrument may not be brought by . . . the
issuer . . . of the instrument.” Code § 8.3A-420(a)(i).
Halifax argues, however, that “as clearly explained in
the comments to the revised Code, [the] preclusion is intended
only to extend to claims for statutory conversion, namely
those involving forged indorsements.” Halifax then quotes
Official Comment 1 to Code § 8.3A-420, as follows:
Under former Article 3, the cases were divided on the
issue of whether the drawer of a check with a forged
indorsement can assert rights against a depositary bank
that took the check. The last sentence of Section 3-
420(a) resolves the conflict by following the rule stated
21
in Stone & Webster Engineering Corp. v. First National
Bank & Trust Co., 184 N.E.2d 358 (Mass. 1962).[8]
But this does not say that the preclusion in the last
sentence of Code § 8.3A-420(a) extends only to claims
involving forged indorsements. Nor does Code § 8.3A-420
itself contain any such limiting language. The statute
clearly precludes a drawer from bringing an action for
conversion of “an instrument,” and it does not differentiate
between an instrument with a forged signature and one with a
forged indorsement. As noted in White & Summers, Code § 8.3A-
420 “denies the drawer a conversion cause of action where the
drawer’s signature has been forged.” White & Summers, § 19-5
at 274.
We conclude that the trial court did not err in its
holding that Halifax does not have a claim for conversion and
in awarding summary judgment to Wachovia with respect to that
claim.9
Aiding and Abetting Breach of Fiduciary Duty
8
Stone & Webster involved checks with forged
indorsements. The Supreme Judicial Court of Massachusetts
held that the drawer of the checks had no “right of action”
against the depositary bank, 184 N.E.2d at 362, because the
drawer “had no valuable rights in them,” id.
9
The views we have expressed with respect to the claim
for conversion make it unnecessary to consider the trial
court’s alternate holding that Halifax had no claim for
conversion because “such a claim lies only where personal
property . . . is converted,” and a “check represents an
obligation of the drawer rather than property of the drawer.”
22
With respect to this claim, the trial court assumed,
“arguendo, that Virginia recognizes a cause of action for
aiding and abetting a breach of fiduciary duty.” The trial
court concluded, however, that Halifax had “failed to allege
sufficient facts to state such a claim.” We will make the
same assumption and reach the same conclusion.
The dispute between the parties centers upon what Halifax
needed to allege in its motion for judgment concerning (1)
Wachovia’s knowledge of Adams’ breach of fiduciary duty, and
(2) Wachovia’s participation in that breach. We will discuss
these matters seriatim.
Wachovia’s Knowledge
Halifax says that Code § 8.3A-307(b)(3) “expressly
defines the meaning of ‘notice’ and ‘knowledge’ for purposes
of bank liability under the common law,” and that, in its
motion for judgment, it made the necessary allegations. This
Code section provides that “[i]f an instrument is issued by
the represented person or the fiduciary as such, and made
payable to the fiduciary personally, the taker does not have
notice of the breach of fiduciary duty unless the taker knows
of the breach of fiduciary duty.” (Emphasis added.)10 In this
10
Halifax also cites Code § 8.3A-307(b)(2) and (4) which,
as Wachovia points out, “on their face, do not apply to the
checks at issue here.”
23
scenario, Halifax is “the represented party,” Adams is “the
fiduciary,” and Wachovia is “the taker.”
All Halifax alleged, however, was that Wachovia had
“actual knowledge of Adams’ fiduciary duty and actual . . .
notice [of] Adam’s [sic] breach of duty.” While this may be
sufficient to allege Wachovia’s actual knowledge of Adams’
fiduciary duty, it is not sufficient to allege that Wachovia
“[knew] of the breach of fiduciary duty,” in the words of Code
§ 8.3A-307(b)(3). Alleging actual knowledge of a fiduciary
duty is not tantamount to alleging actual knowledge of a
breach of the duty. “Notice which does not amount to
knowledge is not enough to cause Section 3-307 to apply.”
Official Comment 2 to Code § 8.3A-307. “A person ‘knows’ or
has ‘knowledge’ of a fact when he has actual knowledge of it.
‘Discover’ or ‘learn’ or a word or phrase of similar import
refers to knowledge rather than to reason to know.” Code
§ 8.1-201(25).11
Yet again, Halifax relies on White & Summers, this time
for the proposition that Code § 8.3A-307(b)(3) is violated
where “the person who received payment was known to be a
11
Code § 8.1-201 was repealed effective July 1, 2003, and
was replaced by Code § 8.1A-202. Subsection (b) of the new
version states: “ ‘Knowledge’ means actual knowledge. ‘Knows’
has a corresponding meaning.” New subsection (c) states:
“ ‘Discover,’ or ‘learn,’ or words of similar import refer to
knowledge rather than to reason to know.”
24
fiduciary by the taker . . . [and] the taker made the money
available to the fiduciary personally by putting it in his or
her account or otherwise in a transaction known to be for the
embezzler’s personal use.” White & Summers, § 19-5 at 276.
But, here again, Halifax does not tell the whole story.
The statement quoted from White & Summers has reference
to a hypothetical case where “the embezzler, with authority to
draw, draws a check payable to the order of the corporation,
forges the corporate indorsement (he or she has no authority
to indorse) and passes the check to a depositary bank.” Id.
at 275-76. But the checks here were not payable to Halifax
and they bore no forged indorsements, so the statement quoted
from White & Summers is inapposite. Furthermore, White &
Summers did not say that the hypothetical represented a
violation of Code § 8.3A-307(b)(3) as, indeed, they could not −
the hypothetical checks were not covered by that section but
by Code § 8:3A–307(b)(2); White & Summers merely said that
“the owner of the account might strengthen this case by noting
that he or she had carried the substantial burden by proving
the conditions required under 3-307(b).” § 19-5 at 276. And,
in the end, White & Summers say: “[W]e are uneasy about all of
this.” Id.
Finally, Wachovia states on brief that Halifax “did not
and could not allege that Wachovia had actual knowledge of the
25
most relevant fact, i.e., that Adams did not have Halifax’s
authority to draw the checks to herself (or to her companies
or to cash).” When asked during oral argument whether Halifax
“alleged that,” counsel for Halifax responded by saying: “We
alleged [it] in the entire body of the long motion for
judgment, we did not use, we concede, the two words actual
knowledge with respect to . . . the second element, actual
knowledge of the breach.”
Wachovia’s Participation
As the trial court noted in its final order, a plaintiff
asserting a claim for breach of fiduciary duty is required to
allege “more than mere knowledge that the breach of fiduciary
duty has occurred.” The Court stated that “[f]or a claim to
survive, the plaintiff must assert that the defendant somehow
recruited, enticed, or participated in the fiduciary’s breach
of its duty,” yet Halifax had not alleged that Wachovia
“recruited, enticed, encouraged, or benefited from Adams’
breach of fiduciary duty.”
Halifax says that it alleged in its motion for judgment
that Wachovia “‘participated’ in the breach of fiduciary
duty,” and that this was sufficient to withstand Wachovia’s
motion for summary judgment. Halifax states that no
allegation of “affirmative, conspiratorial aid is required.”
26
Halifax cites Tysons Toyota, Inc. v. Globe Life Ins. Co.,
1994 U.S. App. LEXIS 36692 (4th Cir. Dec. 29, 1994) (per
curiam), which involved a corporate officer’s diversion from
the plaintiff corporation to the defendant insurance companies
of a business opportunity belonging to the plaintiff. The
plaintiff claimed that the defendants “recruited and enticed
[the corporate officer] to breach his fiduciary duty to [the
corporation]” and alleged facts supporting that claim. Id. at
*4. The court held that the plaintiff had “alleged sufficient
participation by the defendants in [the corporate officer’s]
breach of fiduciary duty.” Id. at *13. But Halifax made no
allegation here that Wachovia recruited and enticed Adams to
breach her fiduciary duty, and it alleged no facts that would
have supported the allegation had it been made.
Halifax also cites Patteson v. Horsley, 70 Va. (29
Gratt.) 263 (1877). There, a trustee, John Horsley, sold
bonds for $9,000.00 he held in trust to G. A. Hancock, for
which Hancock gave his bond for $8,280.00. When that bond
fell due in 1863, Hancock proposed to pay the bond in
Confederate money, and Horsley accepted payment in that
currency. Upon a bill of complaint praying for the settlement
of the accounts of Horsley, as trustee, the trial court ruled
that neither Horsley nor Hancock was liable for any loss that
had resulted to the trust fund. On appeal, this Court
27
reversed, holding that the transaction between Horsley and
Hancock was a breach of trust by the former in which the
latter had participated, “the same having been committed at
[Hancock’s] instance and for his benefit.” Id. at 270.
Nothing in Halifax’s motion for judgment even comes close to
an allegation that Adams’ breach of fiduciary duty was
committed at Wachovia’s instance or for its benefit.
Next, Halifax cites W. L. Chase & Co. v. Norfolk Nat’l
Bank of Commerce & Trusts, 151 Va. 1040, 145 S.E. 725 (1928).
There, Chase had an account with the Norfolk National Bank and
another with a bank in Rocky Mount, North Carolina. An
employee of Chase, J. C. Custis, without authority, drew a
check on the Rocky Mount bank payable to the Norfolk Bank.
That bank allowed the check, endorsed by Custis, to be
deposited in his personal account, which Custis then used to
pay off a debt he owed the Norfolk Bank. Chase brought an
action in assumpsit, not aiding and abetting, against the
Norfolk bank and was allowed to recover the amount of the
check. This Court held that by complying with the employee’s
request to place the proceeds of the check in his personal
account, the Norfolk Bank “manifestly allowed him to exceed
his authority and so participated in the diversion of funds
under [its] control.” Id. at 1057, 145 S.E. at 730. The
dissimilarity between the present case and Chase is at once
28
obvious. Here, Halifax was not Wachovia’s customer, the
checks in question were not made payable to Wachovia, and the
proceeds from the checks were not used to pay an indebtedness
due Wachovia.12
Halifax also cites CaterCorp, Inc. v. Catering Concepts,
Inc., 246 Va. 22, 431 S.E.2d 277 (1993). One of the claims
asserted in the case was for tortious interference with
contracts. We said that one of the elements of such a claim
is “intentional interference inducing or causing a breach or
termination of the relationship or expectancy,” and we held
that the plaintiff had alleged the element of intentional
interference with sufficient specificity. Id. at 28, 431
S.E.2d at 281 (emphasis added). It is surprising that Halifax
cites this case. It certainly does not support Halifax’s
argument, noted supra, that it was not required to allege
“affirmative . . . aid” as an element of its claim for aiding
and abetting.
This brings us to the crux of the issue whether Halifax’s
allegation that Wachovia “participated” in Adams’ bank
12
Halifax cites several cases similar to Chase. All are
inapposite. Jones v. United States Fid. & Guar. Co., 165 Va.
349, 182 S.E. 560 (1935); Trust Co. of Norfolk v. Snyder, 152
Va. 572, 147 S.E. 234 (1929); Bank of Giles County v. Fidelity
& Dep. Co. of Md., 84 F.2d 321 (4th Cir. 1936); Fidelity &
Dep. Co. of Md. v. Bank of Smithfield, 11 F.Supp. 904 (E.D.
Va. 1932); Scottsbluff Nat’l Bank v. Blue J Feeds, Inc., 54
N.W.2d 392 (Neb. 1952); Wichita Royalty Co. v. City Nat’l Bank
of Wichita Falls, 89 S.W.2d 394 (Tex. 1935).
29
transactions is sufficient to state a claim of aiding and
abetting. Generally speaking, the word “participate,”
standing alone, is of a neutral and innocuous nature,
importing no wrongdoing of any kind. See Black’s Law
Dictionary 1141 (7th ed. 1999). However, its meaning can vary
depending upon the context in which it is used. On the other
hand, the term “aiding and abetting” invariably imports
purposeful conduct. Id. at 69 (“aid given with mens rea is
abetment”). When the word “participate” is used in the
phrase, “participate in aiding and abetting,” it sheds its
neutral and innocuous nature and takes on the characteristic
of affirmative participation inherent in the other words of
the phrase. The maxim noscitur a sociis “instructs that ‘the
meaning of a word takes color and expression from the purport
of the entire phrase of which it is a part, and it must be
read in harmony with its context.’ ” Andrews v. American
Health & Life Ins. Co., 236 Va. 221, 225, 372 S.E.2d 399, 401
(1988) (quoting Turner v. Commonwealth, 226 Va. 456, 460, 309
S.E.2d 337, 339 (1983).
A bank participates in numerous transactions every day
involving the acceptance and deposit of checks. Yet, unless
it actually knows a breach of fiduciary duty is occurring and
participates with mens rea in the consummation of the breach,
30
it should not be held liable for aiding and abetting the
breach.
Halifax’s motion for judgment neither alleges affirmative
participation by Wachovia nor states facts that would support
such an allegation. Rather, Halifax’s allegations are
negative in nature, listing all the things Wachovia did not do
that might have uncovered the embezzlement. This is
insufficient to overcome the lack of allegations of
affirmative participation on the part of Wachovia.
Leave to Amend
Halifax states on brief that “[in] the event that the
circuit court found [Halifax’s] allegations were not pled with
sufficient particularity, Halifax was entitled to leave to
amend.” However, Halifax has a problem; it has not assigned
error to the denial of leave to amend, and we will not notice
the denial now. Rule 5:17(c) (“[o]nly errors assigned in the
petition for appeal will be noticed by this Court”).
Conclusion
Finding no error in the holdings of the trial court, we
will affirm its judgment.
Affirmed.
31