RENDERED: .NOVEMBER 2, 2017
TO BE PUBLISHED
~uprtmt ~nurf nf t'itnfutklJ
2016-SC-000136-DG
ANGELA FORD; ANGELA FORD, P.S.C.; ATI APPELLANTS
VENTURES, LLC; AND VILLA PARIDISIO,
LLC
ON REVIEW FROM COURT OF APPEALS
v. CASE NOS. 2014-CA-000762.& 2014-CA-00791
FAYETTE CIRCUIT COURT NO. 12-CI-03758
HAROLD BAERG, JR.; KATHLEEN M. APPELLEES
BAERG; AND FAISAL SHAH
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING AND REMANDING
Among the elements required under our law to prove the tort of
conversion, the plaintiff must first prove that she has legal title to the
converted property and then prove the right to possess the property at the time
of the alleged conversion. Attorney Angela Ford filed this civil action asserting
the tort of conversion, claiming that Harold and Kathleen Baerg and Fasal
Shah should be required to disgorge large sums of ·money that Ford claimed
had been stolen from her by her attorney, Seth Johnston, and transferred by
- him to the Baergs and Shah. The trial court granted summary judgment in
favor of Ford, but the Court of Appeals reversed the trial court's judgment,
holdirig that Ford failed to prove the essential elements of conversion
mentioned above. On discretionary review, we affirm the opinion of the Court of
Appeals and remand this case to the trial court with direction to grant
summary judgment to the Baergs and to Shah.
I. FACTUAL AND PROCEDURAL BACKGROUND.
Attorney Angela Ford received a large sum of legal fees for her work in
the notorious fen-phen lawsuit. 1 Ford hired attorney Seth Johnston to help her
form several LLCs to manage and _secrete these funds. Johnston then formed
two limited liability companies (LLCs), Villa Paridisio and ATI Ventures, to own
and manage the funds. Ford placed some funds into Villa Paridisio's PNC Bank
account and some into ATI Ventures's Republic Bank account. Johnston,
according to the record available to us, was the signatory on both LLCs'
•
accounts, later transferring Villa Paridisio's funds to BB&T, also an account
where Johnston was named the ,sole signatory as revealed by the available
record.
Johnston also represented Harold and Kathleen Baerg at this time. The
Baergs wished to engage in an I.R.C. § 1031 llke-kind property exchange. And
they wanted Johnston to hold the proceeds from their sold property in an
intermediary company, Emerald Riverport, solely controlled by Johnston, until
they purchased new property to complete the § 1031 transaction.
Unknown to Ford and the Baergs, Johnston was involved in an extensive
scheme of fraud, theft, and illegal drug distribution. Johnston spent the
Baergs' proceeds from the sale of their property, placed in Emerald Riverport,
.1 See, e.g., Abbott v. Chesley, 413 S.W.3d 589(Ky.2013)
2
for his own scheme. When the Baergs wanted the money to purchase new
property under their§ 1031 transaction, Johnston wire-transferred funds from
Ford's Villa Paridisfo account to pay the seller of the new property. Johnston
also used funds from Ford's ATI Ventures account to purchase a cashier's
check, which he then negotiated to Zafar Nasir. Nasir later negotiated that
I .
cashier's check to Faisal Shah, who deposited the check's funds into his
personal bank account.
After discovering these fraudulent c!,.ealings, Ford filed the underlying
action against Johnston, the Baergs, and Shah for conversion. Ford moved for
summacy judgment against all parties, and the trial court granted Ford's
motion and found all parties liable. Shah and the Baergs appealed, and the
appellate court reversed the trial court's findings with respect to them, finding
that Ford could not prove the first two elements of conversion2-specifically,
/, that Ford lacked the requisite legal title or possessory rights to the allegedly
converted property. This court took this case on discretionacy review.
2 The elements of conversion are: (1) the plaintiff had legal title to the converted
property; (2) the plaintiff had the right to possess the property at the time of the
conversion; (3) the defendant exercised dominion over the plaintiffs property in. a way
that deprived the plaint;iff of its use and enjoyrrient; (4) the defendant intended to
interfere with the plaintiffs possession; (5) the plaintiff demanded return of the
property and the defendant refused; (6) the defendant's act was the legal cause of the
plaintiff's loss of the property; and (7) the plaintiff suffered damages from the loss of
the property. Kentucky Ass'n of Ctys. AU Lines Fund Trust v. McC1.endon, 157 S.W.3d
626, 630 n.12 (Ky. 2005).
3
II. ANALYSIS.
A. Standard of Review.
We review a trial court's granting of a party's summary judgment motion
de novo. 3 ' "On appeal, '[t]he standard of review ... of a summary judgment is
whether the circuit judge correctly found that there were no issues as to any
material fact and that the moving party was entitled to a judgment as a matter
of law.'"4
B. Ford Cannot Satisfy the First Two Elements of Conversion.
The Baergs correctly argue that Johnston, as the sole signatory on the
Villa Paridisio bank accounts at PNC Bank and BB&T, possessed, at the least,
apparent authority over those bank accounts. Shah argues the same-
Johnston remained the sole signatory on the ATI Ventures bank account at
Republic Bank, and thus Johnston possessed apparent authority over that
bank account. The Baergs and Shah argue that, through his apparent ·
authority, Johnston divested Ford of legal title and possessory rights when
Johnston completed the wire transfer in the Baergs' case and the negotiation
and deposit of the cashier's c~eck in Shah's case.
As stated previously, the first two elements of conversioh require the
plaintiff, Ford, to (1) have legal title over the property in question and (2) the
right to possess the property at the time of the conversion. In other words, if
3 Caniffv. CSXTransp., Inc., .438 S.W.3d368, 372 (Ky. 2014).
4 Id. (quoting Pearson ex rel. Trent v. Nat'l.Feeding Sys., Inc., 90 S.W.3d 46, 49 (Ky.·
2002)).
4·
Ford does not possess legal title over or the right to possess the property in
question, her conversion claims against the Baergs and Shah fail.
l. Johnston Possessed Apparent Authority to Act on Behalf of Ford
When Managing her LLCs' Bank Accounts.
A signatory is "A person or entity that signs a document, personally or
through an agent, and thereby becomes a party to an agreement. "5 For the
purposes of this case, the most important feature of designation as a signatory
is the vesting of signatory authority in the signatory. Signatory authority is the
"License to make a decision, esp. to withdraw money from an .account or to
transfer a negotiable instrument." 6 In other words, when an individual is
designated as a signatory, that :individual possesses some type of authority to
act on behalf of the principal who designated the individual as a signatory.
Recall that Ford designated Johnston as a signatory on both her Villa
Paridis:lo and ATI Ventures bank accounts. So Johnston possessed some type
of authority over these accounts. The Baergs and Shah correctly argue that, at
the vecy least, Johnston possessed apparent authority to transfer funds from
these accounts to third parties, thereby eventually validly divesting Ford of any
legal title or right to possess the transferred funds in both cases.
"Apparent authority .. .is not actual authority but is the authority the
agent is held out by the principal as possessing. It is a matter of appearances
s Signatory, Black's Law Dictionary (10th ed. 2014).
6 Signatory Authority, Black's Law Dictionary (10th ed. 2014).
5
on which third parties comes to rely." 7 "An agent is said to have apparent
authority to ·enter transactions on his or her principal's behalf with a third
party when the principal has manifested to the third party that the agent is so
authorized, and the third party reasonably relies on that manifestation."B "That
a principal did not approve an individual transaction does not change the fact
that an agent can have apparent authority to make the signature and thus
engage in the transaction, at least when viewed from the perspective of the
bank."9
Without question, as a signatory, Johnston possessed the authority to
transfer funds from the bank accounts of Villa Paridisio and ATI Ventures to
third parties from the perspective of BB&T and Republic Bank. This is the
entire reason an individual designates a signatory on a bank account-to vest
authority in that individual to make transfers from one's bank account and to
have the bank recognize that authority. BB&T and Republic Bank reasonably
relied on Johnston's status as a signatory when. transferring funds
.
from the
LLCs' bank accounts to the respective third parties at Johnston's direction. In
sum, there is no question that Johnston possessed apparent authority to act
on· behalf of Ford when managing her LLCs' bank accounts.
1Mark D. Dean, P.S.'C. v. Commonwealth Bank & Trust Co., 434 S.W.3d 489, 499 (Ky.
2014) (quoting Mill St. Church of Christ v. Hogan, 785 S.W.2d 263, 267 (Ky. App.
1990)). .
s i'in.g v. Beverly Enterprises, Inc., 376 S.W.3d 581, 594 (Ky. 2012); see al.so ·
Restatement (Third) of Agency§ 2.03 (2006) ("Apparent authority is the power held by
an agent or other actor to affect a principal's legal relations with third parties when a
third party reasonably believes the actor has authority to act on behalf of th~ principal
and that belief is traceable to the principal's manifestations.").
9 MarkD. Dean, 434 S.W.3d at 500.
·6
2. Johnston's Apparent Authority Allowed Title to Transfer Validly
from the LLCs' Bank Accounts to Respective Third Parties.
As a signatory, Johnston committed two transfers vital to determining
the end result of this case. Regarding the Baergs, Johnston wire-transferred
funds from Ford's Villa Paridisio account to pay the seller of the new property.
Regarding Shah, Johnston used funds from Ford's ATI Ventures acqount to
' '
purchase a cashier's check, which he later negotiated to Zafar Nasir, who then
negotiated the check to Shah, who deposited the funds from the cashier's
check into his personal bank account.
a. The Wire Transfers.
Regarding Johnston's wire transfer from Villa Paridisio to the seller's
designated third parties, as a matter oflaw, "Title to funds in a wire transfer
passes to the beneficiary bank upon acceptance of a payment order."10 So
when Johnston validly ordered BB&T to wire money to the seller's designated
third parties, the completion of the transfer of valid title occurred upon those
third parties acceptance by the payment order.11 At that point in time, Ford
lost all her claim to title and possession. Because Ford no longer has title over
or the right to possess the funds, Ford cannot satisfy the first tWo elements of
her conversion claim against the Baergs and her claim against them fails.
10 Regions Bank v. Provident Bank, Inc., 345 F.3d 1267, 1277 (11th Cir. 2003); 7
Anderson U.C.C. § 4A-209:7 (3d. ed.). Although only persuasive authority, Regions
Bank has been heavily cited and relied upon by both parties and the Court of Appeals
in this case. Clearly, if the receiving bank in the wire transfer "know[ s] or [has]
reasonable cause to believe that the property [has] been obtained through commission
of a theft offense," then title would not validly pass. Regwns Bank, 345 F.3d at 1277.
Here, there is absolutely no evidence that the [bank] receiving Johnston's wire
transfers had any knowledge or reason to believe that the transfers were fraudulent.
So UCC Artide 4A is not being used "as a shield for fraudulent activity." Id. at 1276.
11 Again, Johnston possessed valid apparent authority to complete this transfer.
7
b. The Negotiation of the Cashier's Check.
Regarding Johnston's purchase and negotiation of the cashier's check,
Johnston validly possessed the ability to eilforce the cashier's check because
he validly purchased the cashier's check using Forcfs funds through his
apparent authority over Ford's ATI Ventures bank account.12 Once Johnston
·negotiated the cashier's check to Nasir, Johnston's ability to enforce the
cashier's check passed to Nasir.13 Nasir then negotiated the check to Shah,
who later deposited the funds into his personal account, at which point Ford
lost all title and possessory rights in the funds.14 Because Ford no longer has
any possessory rights in the funds, she cannot satisfy the second element of a
conversion action, and thus her claim fails.
c. Cheapest Cost Avoider Principle.
With respect to Ford's claims against the Baergs and Shah, we assert a
further justification for our holding in this unfortunate case. The "cheapest
cost avoider" economic principle states, in the words of Judge Posner, "that the
dufy to avoid a loss should be placed on the party that can prevent the loss at
· 12. There is an argument that once Johnston purchased the cashier's check, Ford lost
possessory rights at that point in time. But as the Court of Appeals aptly noted, there
is debate about this concept. Cf; Gregory E. Maggs Determining the Rights and
Li.abilities of the Re.mitter of a Negotiable Instrument: A Theory Applied to Some
Unsettled Questions, 36 B.C.L. Rev. 619, 654-55 (1995). Because of this debate, and
because this case is conclusively decided differently, we need not resolve this debate at
this time.
13 "Transfer of an instrWnent, whether or not the transfer is a negotiation, vests in the
transferee any right of the transferor to enforce the instrument .... " KRS 355.3-203(2).
14 When a general deposit is made by a bank's customer (account holder) at the bank,
title to the general deposit passes from the depositor to the bank, with the bank
undertaking a duty to repay. Ann Graham, Banking Law§ 9.02[1] (1997); Dean Witter
Reynolds, Inc. v. Variable Annuity Life Ins. Co., 373 F.3d 1100, 1107-08 (10th Cir.
2004).
8
lower cost "15 In this case, Ford was the party in the best position to prevent
her loss. She entrusted Johnston with unconstrained authority to handle her
funds. Had she properly vetted Johnston or monitored her accounts, she could
have terminated his status as a signatory or never even have bestowed upon
him sole signatory status, preventing her own loss. Ford's status as the
cheapest cost avoider in this case further cements our holdings.
d. Johnston is Not a ''Thief" for Purposes of Determining Title
Transfer.
Ford argues to us the well-established rule that "a robber or thief cannot
as against the owner pass title to ... stolen property, even to a bona fide
purchaser for v~ue" 1 6 when she insists that she never lost title to the funds
eventually transferred to the Baergs and Shah. But Johnston is not a "thief' in
this specific context-Johnston possessed apparent authority over Ford's LLCs'
'
bank accounts by virtue of his signatory authority granted to him by Ford. And
when Johnston exercised his authority over the accounts, it was as if Ford
herself was the actor. So Johnston cannot be considered a "thief' in this
context.
III. CONCLUSION.
Angela Ford no longer possesses title to or a possessory interest in the
funds transferred in the Baergs' case, nor does she possess an interest in the
funds transferred in Shah's case. For those reasons, Ford cannot maintain a
1s Wachovia Bank, N.A. v. Foster Bancshares, Inc., 457 F.3d 619, 622 (7th Cir. 2006).
16 Peopl.e's Nat Bank v. Jones, 61 S.W.2d 17, 19 (Ky. 1933); See In re Newpower, 233
F.3d 922, 929 (6th Cir. 2000); Restatement (Second)·ofTorts § 229 cmt. d. (1965);
Bogert, Trust & 'frustees § 476 (2d~ ed. 1978).
9
conversion action against these parties, and her claim fails as a matter of law.
We affirm the Court of Appeals in reversing the trial court's grant of Ford's
motions for summary judgment and remand the case to the trial court with
instructions.to enter summary judgment in favor of the Baergs and Shah.
All sitting. All concur.
COUNSEL FOR APPELLANTS:
Angela Margaret Ford
I
Mindy Barfield
Brett Nolan · ·
Dinsmore & Shohl, LLP
COUNSEL FOR APPELLEE FAISAL SHAH:
Stephen M. O'Brien III
David Coomer
Stephen M. O'Brien, III, PLLC
COUNSEL FOR APPELLEES KATHLEEN M. BAERG AND HAROLD BAERG JR.:
John F. Billings
John Nathanael Billings
Christopher L. Thacker
Stephen Wilson
Billings Law Firm, PLLC.
10 '