NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

Transcription

1 J-A NON-PRECEDENTAL DECSON - SEE SUPEROR COURT.O.P NORTHWEST SAVNGS BANK, : N THE SUPEROR COURT OF : PENNSYLVANA Appeant : : v. : : FDELTY NATONAL TTLE NSURANCE COMPANY AND THE CLOSNG COMPANY OF PA : : : No. 451 WDA 2016 Appeal from the Order entered December 23, 2015 n the Court of Common Pleas of Butler County, Cvl Dvson, No(s): BEFORE: DUBOW, MOULTON and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FLED JANUARY 20, 2017 Northwest Savngs Bank ( Northwest ) appeals from the Order grantng the Cross-Moton for Summary Judgment fled by Fdelty Natonal Ttle nsurance Company ( Fdelty ), and denyng Northwest s Moton for Partal Summary Judgment. We affrm. 1 1 As ths appeal was fled from an Order dsmssng only Counts and of the Amended Complant, t appeared that Fdelty s counterclam remaned pendng, along wth Northwest s clams aganst The Closng Company of PA ( TCCPA ). Therefore, a Rule to show cause as to why ths appeal should not be quashed as nterlocutory was ssued. Northwest responded to the Rule, and ndcated that the Order appealed from dsposed of Fdelty s counterclam. Northwest further ndcated that t would enter a default judgment aganst TCCPA. Northwest thereafter submtted proof to ths Court of the May 5, 2016 default judgment taken aganst TCCPA. Havng been presented wth satsfactory evdence of fnalty, ths court dscharged the Rule on May 10, 2016, on the bass that the December 23, 2015 Order appealed has been rendered fnal and appealable. Accordngly, Northwest s prematurely taken appeal has been perfected. See Johnston the Florst, nc. v. Tedco Constr. Corp., 657 A.2d 5, 513 (Pa. Super. 1995) (holdng that, when an appeal has been fled pror to the entry of judgment,

2 J-A n ts Opnon, the tral court set forth the relevant factual and procedural hstory, whch we adopt for the purpose of ths appeal. See Tral Court Opnon, 5/9/16, at 1-4. On appeal, Northwest rases the foowng ssues for our revew: 1. Whether the [tral court] properly nterpreted the ttle nsurance polces at ssue and relevant law to conclude that Northwest assumed or agreed to pre-exstng mortgages ntendng to be pad off[?] 2. Whether the [tral court] properly used a balancng of the equtes approach n contract nterpretaton to assert that [Northwest] consented to the exstence of prorty mortgage lens n a case requrng contract nterpretaton[,] and n lght of the fact that TCCPA commtted fraud solely wthn the scope of an authorzed ttle nsurance agent? 3. Whether the [tral court] erred as a matter of law by falng to consder the subsequent and ntervenng fraud of Fdelty s ttle nsurance agent n connecton wth the closng protecton letter ssued by Fdelty? 4. Whether the [tral court] erred by concludng that no materal facts reman n dspute, ncludng a concluson regardng an ntent by Northwest to assume or agree to pre-exstng mortgages? Bref for Appeant at 2-3. As Northwest s frst and second ssues are related, we w address them together. n ts frst ssue, Northwest contends that, pursuant to the plan language of the fnal Loan Polcy of Ttle nsurance ( the Fnal Polcy ) ssued to Northwest by Fdelty, through ts ttle agent, TCCPA, Northwest was protected aganst [] defects n ttle, ncludng any defect arsng where jursdcton n appeate courts may be perfected after an appeal notce has been fled upon the docketng of a fnal judgment)

3 J-A Northwest would not have the prorty len. d. at 16. Northwest argues that the tral court erred by fndng that Fdelty was not bound by the language of the Fnal Polcy, whch, Northwest asserts, should ndemnfy t aganst the exact occurrence whch arose n ths case. d. Northwest asserts that, n arrvng at ts concluson that Northwest was not enttled to coverage, the tral court ncorrectly nterpreted the Secton 3(a) exclusons, as set forth n the Fnal Polcy. d. Specfcay, Northwest clams that the tral court erred by determnng that Northwest assumed or agreed to the exstng prorty lens held by Ctzens Bank of Pennsylvana ( Ctzens ) and Charter One ( Charter ), based on Northwest s knowledge of the lens pror to enterng nto the mortgage loan agreement wth Thomas and Lsa Mcntyre for the refnancng of ther home ( the Mcntyre transacton ). d. at Northwest argues that, n reachng ts concluson, the tral court mproperly concluded that an nsured wth knowledge of exstng lens unequvocay assumes or agrees to those lens. d. at 17. Northwest contends that the tral court s concluson s contrary to ndustry practce and the holdng and reasonng of Amercan Sav. & Loan Ass n v. Lawyers Ttle ns. Corp., 793 F.2d 780 (6th Cr. 1986), whch, Northwest asserts, s the establshed standard for the nterpretaton of the Secton 3(a) exclusons. Bref for Appeant at 17. Northwest contends that, n order to exclude ttle coverage, the prospectve nsured must specfcay know the - 3 -

4 J-A defects t wshes to assume and demonstrate some degree of ntent to take the property, and ttle nsurance, subject to these defects. d. at 18 (ctng Natonwde Lfe ns. Co. v. Commonwealth Land Ttle ns. Co., 20 U.S. Dst. LEXS (E.D. Pa. 20). Northwest asserts that, where, as n ths case, there s mere neglgence or nnocent conduct of the nsured, ttle coverage should not be dened. Bref for Appeant at 18, 21. Northwest ponts to the holdng n Benefcal Mut. Sav. Bank v. Stewart Ttle Guar. Co., 36 F. Supp. 3d 537 (E.D. Pa. 2014), and clams that the facts of that case are dstngushable from those n the nstant case. Bref for Appeant at 20 (argung that Northwest has unequvocay affrmed, and documented throughout, that t ntended to receve the frst prorty, and sole len[,] aganst the Mcntyre [p]roperty by the refnancng loan. ). Northwest argues that there are no documents n ths case revealng ntent by Northwest to take anythng less than the frst prorty mortgage and that Fdelty has reled solely on the language of the Fnal Polcy that s ambguous at best, and napplcable under a proper analyss of Am[ercan] Sav. & Loan. d. Northwest contends that t drected the ttle agent to pay[ ]off Ctzens and Charter[,] and to provde Northwest wth the frst prorty mortgage[,] and only accepted the ssued Fnal Polcy due to the msrepresentaton of Fdelty s ttle agent removng the Ctzens and Charter[] lens from the exceptons n the [F]nal [P]olcy receved after the loan closng. d. at

5 J-A Northwest asserts that, despte acknowledgng Northwest s nnocence, the tral court erred by usng a balancng of the equtes approach to determne that Northwest was n the better poston to assume the rsk n [the] transacton[,] and that the lens were not subject to coverage under the Fnal Polcy. d. at 21, 22. Northwest clams that [t]he only conduct dentfed by the [tral c]ourt remotely relevant to any neglgence by Northwest was the fact that t forwarded the funds and payoff schedule to TCCPA[,] drectng how the loan funds were to be dstrbuted[,] to ensure that the proper partes receved payment. d. Northwest argues that t s untenable to fnd that [ths] conduct was n any way mproper much less somethng beyond mere neglgence. d. at n ts second ssue, Northwest contends that, despte ts determnaton that both Northwest and Fdelty were largely blameless, the tral court erred by grantng summary judgment n favor of Fdelty, despte the ssuance of a closng protecton letter whch ndemnfed [Northwest] f Fdelty s agent absconded wth the proceeds. d. at 23. Northwest asserts that [t]hs converson was hdden from Northwest through the ssuance of a Fnal Polcy that deleted the exceptons to coverage and represented the exstng mortgages to be pad. d. Northwest clams that the tral court commtted a fundamental err[or] by resolvng a queston requrng strct contract nterpretaton by usng a balancng of the equtes approach. d. at 24. Northwest argues that the tral court compounded the error by - 5 -

6 J-A falng to recognze the crtcal ssue of TCCPA s fraud, as the ttle agent, n msappropratng the funds advanced by Northwest for closng. d. (emphass n orgnal). Northwest ponts out that TCCPA was nvolved n the Mcntyre transacton both as the ttle agent and the settlement agent, and contends that the tral court erred by determnng that a of TCCPA s msdeeds were done n ts role as a settlement agent, such as msappropratng the loan funds, and [were not] attrbutable to ts role [as] Fdelty s authorzed ttle agent. d. at Northwest asserts that TCCPA s conduct, n stealng the [closng] funds and then ssung a ttle polcy to cover ts tracks and avod a clam under the closng protecton letter nsured by Fdelty, straddle both the settlement agent and ttle agent roles. d. at Northwest clams that, when removng the Ctzens and Charter lens from the Fnal Polcy, TCCPA was actng n ts role as authorzed ttle agent. d. at 26. Northwest argues that Fdelty was permtted to use the fraud of ts own ttle agent to avod lablty under the closng protecton letter. d. at 27. n ts Opnon, the tral court addressed Northwest s frst and second ssues, set forth the relevant law, and concluded that the ssues lack mert. See Tral Court Opnon, 5/9/16, at 5-8. We agree wth the reasonng of the tral court and affrm on ths bass as to Northwest s frst and second ssues. See d

7 J-A As Northwest s thrd and fourth ssues are related, we w address them together. n ts thrd ssue, Northwest contends the tral court faled to recognze that, but for the fraudulent ssuance of the Fnal Polcy by TCCPA, Northwest would have had the opportunty to seek relef under the closng protecton letter ssued by Fdelty. Bref for Appeant at 28. Northwest asserts that TCCPA s actons consttute subsequent and ntervenng acts of fraud, whch prevented Northwest from dscoverng the fraud or takng steps to act under the closng protecton letter. d. at 29. Northwest clams that the tral court s falure to recognze ths fact, and permt Northwest to recover under the Fnal Polcy or closng protecton letter, consttutes reversble error. d. at 31. n ts fourth ssue, Northwest contends that the tral court faled to acknowledge the uncontroverted factual record dentfyng that Northwest had no ntent to assume and agree to the pror lens. d. at 32. Northwest asserts that the tral court further erred by determnng that a msconduct performed by TCCPA s solely attrbutable to ts role as a settlement agent wthout reference to the fraudulent ttle polcy. d. Northwest clams that dscovery revealed genune ssues of materal fact regardng nstructons provded by Fdelty to ts ttle agents. d. at 33. Northwest argues that the evdence demonstrates that Fdelty routnely permtted the ttle agents to perform oblgatons wth loan proceeds. d. Northwest contends that, despte ths evdence, the tral court mproperly determned that Fdelty dd - 7 -

8 J-A not authorze TCCPA to handle any funds[,] and that Fdelty could not be lable for any acton arsng from that actvty even though the closng protecton letter ssued by TCCPA[,] as a Fdelty agent[,] expressly ndemnfed aganst the closng agent abscondng wth settlement funds. d. n ts Opnon, the tral court addressed Northwest s thrd and fourth ssues, set forth the relevant law, and concluded that the ssues lack mert. See Tral Court Opnon, 5/9/16, at 8-9. We agree wth the reasonng of the tral court and affrm on ths bass as to Northwest s thrd and fourth ssues. See d. Order affrmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 1/20/

9 2 a.. C") C") - \ :.; 0 u :, <O :j,- 0 ~,.,- ~ (\).,- "'C O> q :: ~ 0 ' " l,., : : r ;'. : 1, r ' ;1 ' 1. 1 : ;1,, ' : L., ' N THE COURT OF CO:Ml\10N PLEAS BUTLER COUNTY, PENNSYLVANA NORTHWEST SAVNGS BANK, FDELTY NATONAL TTLE NSURANCE COMP ANY, THE CLOSNG COMPANY OF PA, and JEFFREY A. GARBNSK, Yeager, J. v. Plantff, Defendants. The Appeant, Northwest Savngs Bank (herenafter "Appeant" or "Northwest"), appeals from the Order of Court under date December 23, 2015, smultaneously grantng Appeee's, Fdelty Natonal Ttle nsurance Company (herenafter "Appeee" or "Fdelty"), Cross-Moton for Summary Judgment and denyng Appeant's Moton for Partal Summary Judgment.. The facts and hstory of the nstant matter are as foows. for damages n breach of contract as a result of a ttle nsurance polcy under date of September , ssued by the Appeee, Fdelty Natonal Ttle nsurance Company, to the Appeant, Northwest Savngs Bank RULE 1925(a) OPNON CVL DVSON A.D. No \~.... -r~~ '-~~ ~ ~ =-...' -<. - ; w -- ''"'' -. May9,2016 Ths case presents a clam

10 :1, " ' ' Butler n September, 2009, Thomas Mcntyre and Lsa Mcntyre, owned property located n County, Pennsylvana. Sad property was, at that tme, encumbered by two prorty : mortgages. The frst prorty len was held by Ctzens Bank of Pennsylvana (herenafter 1 ' len holders. When enterng nto sad agreement, Northwest was aware of the prorty lens :. j held by Ctzens and Charter.. "Ctzens"). The second prorty len was held by Charter One (herenafter "Charter"). Durng the aforesad tme perod, the Mclntyres agreed to enter nto a mortgage loan agreement wth Northwest, to refnance ther property and extngush the two exstng prorty On or about September 7, 2009, The Closng Company of Pennsylvana (herenafter ''TCCPA"), actng as Fdelty's polcy ssung agent', ssued to Northwest a Commtment for Ttle nsurance wth respect to the Mclntyres' refnance loan. The Conuntment for Ttle nsurance requred Northwest to dscharge the Ctzens and Charter prorty loans for the j forthcomng. ttle nsurance polcy to become effectve. At some tme subsequent to the ssuance of the aforesad Conuntment for Ttle ~o:::.~:.::d~::::::t::::.. ~::: :o::::f::: ::::~:. j: Ctzens and Charter prorty loans. dsbursement or transference of funds n satsfacton of the prorty lens. Fdelty made no promses that Fdelty, or any agent of Fdelty, would accept and dsburse funds n satsfacton of the prorty lens held by Ctzens and Charter. Fdelty ssued no nstructons to TCCP A regardng the 1--- The agency agreement entered nto between TCCPA and Fdelty lmts the appontment of TCCPA "solely to countersgn and ssue ttle nsurance commtments, bnders, guarantees, endorsements, ttle nsurance polces... " ssung Agent Agreement at, Oct, 31, Further, the agreement specfcay dsaows TCCPA to "[r]eceve funds ncludng escrow, settlement or closng funds, n the name of [Fdelty], but sha receve funds solely n [TCCPA'sJ name... " d. at 2(B)(6). 2

11 e e p ;., _ On or about September 20, 2009, TCCP A, as the polcy ssung agent for Fdelty, ssued a Loan Polcy of Ttle nsurance (herenafter "Polcy") to Northwest, wthout any :. exceptons for the prorty lens of Ctzens and Charter. At some pont subsequent to the ssuance of sad Polcy, Northwest was made aware that TCCP A dd not dsburse or transfer the funds forwarded to TCCP A for satsfacton of the prorty lens of Ctzens and Charter. l Rather, Jeffrey Garbnsk., an offcer oftccpa, msapproprated the funds. As a result of j ' sad msappropraton, Ctzens and Charter, the prorty lenholders, were not pad off. n early 2013, Ctzens and Charter commenced foreclosure actons aganst the Mclntyres' property. Because Northwest s not a prorty lenholder, a demand was made by Northwest aganst Fdelty to protect t from any loss that may be suffered by Northwest as a. result of the foreclosure actons of Ctzens and Charter. On or about May 29, 2013, Fdelty dened coverage and refused to acknowledge any ndemnfcaton of Northwest under the 1 Polcy. As a result, ths acton was commenced by Northwest n breach of contract ( Upon the close of dscovery, the partes fled cross motons for Summary Judgment.. See Appeant's, Northwest Savngs Bank, Moton for Partal Summary Judgment under date of July 31, 2015; and Appeee's, Fdelty Natonal Ttle nsurance Company, Opposton to 1 ' Plantffs Moton/or Partal Summary Judgment and Fdelty's Cross-Moton/or Summary r Judgment under date of August 31, Foowng argument on sad Cross-Motons, the J1 Court ssued an Order and correspondng Memorandum Opnon under date of December 23, 2015, smultaneously grantng Appeee's, Cross-Moton for Summary Judgment and denyng Appeant's Moton for Partal Summary Judgment. See Memorandum Opnon and Order of lj. Court under date of December 23, j 3

12 ; Appeants subsequently fled a Moton for Reconsderaton on or about January 4, :1 : 2016, whch ths Court dened after an argument on sad Moton for Reconsderaton on. ' ',, ' j March 7, See Appeant's Moton/or Reconsderaton under date of January 4, 2016; 1.. and Order of Court under date of March 7, As a result, Appeants fled a Notce of,, Appeal to the Superor Court of Pennsylvana March 29, 2016, wth respect to the Order of Court under date of December 23, See Notce of Appeal under date of March 29, \ Upon recept of sad Notce of Appeal to the Superor Court of Pennsylvana, on or J about March 28, 2016, n accordance wth Rule 1925(b) of the Pennsylvana Rules of lj Appeate Procedure, ths Court entered an Order of Court wheren the Appeant was drected,.,1 to fle ofrecord and serve upon the undersgned tral judge a Concse Statement of the Matters 1 n j Complaned of on Appeal no later than twenty-one (21) days from the date of the Order of 1 Court. See Order of Court under date of March 2g, 2016., l On or about Aprl 15, 2016, the Appeant, Northwest Savngs Bank, fled a Concse 1,1 Statement of the Matters Complaned of on Appeal pursuant to the Pennsylvana Rules of Appeate Procedure. The Appeant avers that ths Honorable Court erred n the foowng l' 1; ways: L,. ' The Court erred n nterpretng the ttle nsurance contract at ssue and by concludng that Northwest "Assumed or Agreed" to the pre-exstng mortgages whch were ntended to be pad off n the transacton. The Court erred by engagng n a "balance of the equtes" analyss n a case requrng contract nterpretaton. The Tral Court erred by falng to consder the subsequent and ntervenng fraud of Fdelty's ttle agent and that materal facts reman n dspute. Ths Court consders the Appeant's, Northwest Savngs Bank, contentons as foows: ; ' 4

13 ;, j : : To begn, as ths matter was dsposed of on cross-motons for summary judgment, the,r ;, r standard therefor s enumerated as foows: j from doubt: Red/and Soccer Club, nc. v. Denartment of the Army and Dept. of Defense of r r the U.S., 696 A.~d 137 (Pa. 1997). Further, a court must vew the record n the lght most favorable to the non-movng party and resolve a doubts concernng the exstence of a genune materal fact aganst the movng party. d. Moreover, the Courts have held that for the purposes of summary judgment, a materal fact s one that drectly affects the outcome of. j the case. Kenney v. Jeanes Hosp., 769 A.2d 492 (Pa.Super, 2001). As such, t s not the Court's functon to decde any ssues of fact, but to solely determne whether there s a 1 genune ssue of materal fact to be tred. McDonald v. Marrott Corp., 564 A.2d 1296 (Pa.Super. 1989)., lj, Accordng to Rule (1) of the Pennsylvana Rules of Cvl Procedure, a party '. may move for summary judgment as a matter of law after the relevant pleadngs are closed. Specfcay, the Rule states:. 1 '. '. "[Wjhenever there s no genune ssue of any materal fact as to a necessary element of the cause of acton or defense whch could be establshed by addtonal dscovery or expert report...,, Addtonay, the Note to Rule states, "An example of a moton under subparagraph ' (1) s a moton supported by a record contanng an admsson. By vrtue of the admsson, no ssue of fact could be establshed by further dscovery or expert report." To ths extent, summary judgment s approprate only n cases that are clear and free 1 5

14 .,,. : j 1.,. l ',,. The Court erred n nterpretng the ttle nsurance contract at ssue and by concludng that Northwest "Assumed or Agreed" to the pre-exstng mortgages whch were ntended to be pad off n the transacton. The frst argument presented n both partes' motons for summary judgment, and complaned of on appeal by Northwest, concerns the aeged breach of contract by Fdelty n falng to provde coverage under the ssued Polcy of ttle nsurance. To mantan a breach of contract clam, the Plantff must establsh that a contract exsted, a breach of that contract, and damages resultng therefrom. the Court cannot fnd a breach of that contract. t s obvous to the Court that a contract exsted. However, Fdelty ctes to the "Exclusons" secton of the ssued Polcy to support ts Cross- Moton for Sununary Judgment. Sectons 3(a) and 3(e) of the Polcy exclude from coverage ' any encumbrances "created, suffered, assumed, or agreed to by [Northwest]," as we as any encumbrances "resultng n loss or damage that would not have been sustaned f [Northwest]. encumbrance where sad nsured has "fu knowledge... of the extent and amount of the 1' l. had pad value for the nsured Mortgage." An nsured w be deemed to have "agreed" to an clam aganst the nsured's ttle." Am. Sav. & Loan As 'n v. Lawyers Ttle ns. Corp., 793 F.2d 780, 784 (6th Cr. 1986). Whle the prevously cted case does suggest that some culpablty s mpled on the part of the nsured n order for the carrer to be releved of coverage, the prncples of equty cannot dctate that the burden merely shfts to the nsurance carrer where the closng agent was fraudulent but the nsured s nnocent. n fact, such an nsurance excluson has prevously been appled n cases concernng the fraud of closng agents. See Fdelty Nat. Ttle ns. v. Consumer Home Mortgage, 272 A.D. 2d 512, 514 (statng that "[w]here ~ loss s caused by the fraud of a thrd party, n determnng the lablty as between two nnocent partes, the loss should fa on the one who enabled the fraud to be commtted.") 6

15 1 ;1 ; : r; " Not only dd Northwest know of the prorty lens held by Ctzens and Charter, t was the oblgaton of Northwest to pay-off the pre-exstng mortgages to Ctzens and Charter. fl ' ',, : :, '\ q ' l1. '1 lj r ' l ' fact, that was the purpose of the loan funds. entrusted the funds to TCCPA as ts agent; rather t was Northwest who forwarded the funds to TCCPA, and drected TCCPA n the proper procedure to dsburse or otherwse transfer the funds. Ths case presents no clam by Northwest for vcarous lablty, and further Northwest admts that TCCPA acted as a dual agent. ts the creaton of that fducary type relatonshp by Northwest wth TCCPA that excludes coverage under the Polcy. The Court s beng asked to determne the lablty of two nnocent partes and fnds t only fttng that the party who enabled the fraud to take place should be charged wth the loss therefrom. Northwest was free to charge another wth the duty of actng as Northwest's agent to transfer the mones, but chose to entrust TCCP A. Addtonay, wth respect to Secton 3(e), the theft of those proceeds forwarded to TCCPA for satsfacton of the Ctzens and Charter mortgages resulted n Northwest havng faled to pay value for the mortgage t acqured on the Mcntyres' property. f the funds had been properly transferred and fu value had been pad for the mortgage on Mclntyres' property, no hann would have resulted. Thus; wth no materal fact n dspute, Fdelty dd not breach the Polcy by denyng coverage thereunder. Unfortunately, Northwest seeks to be ndemnfed by a party that does not properly hold the fault or duty to do so. t s undsputed that t was not Fdelty who n r l \ 7

16 . 1, : 2. '.j The Court erred by engagng n a "balance of the equtes" analyss n a case requrng contract nterpretaton. The Tral Court erred by falng to consder the subsequent and ntervenng fraud of Fdelty's ttle agent and that materal facts reman n dspute. Appeant's fnal matter complaned of frst concerns the ssue of TCCPA' s agency. Wth respect to the second half of Northwest's thrd complant and the explanaton n Reconsderaton, p. 20, under date of March 7, Counsel further stated that wth respect to,, ', 1. 1; ' Northwest's second complant of ths Court concerns a ''balance of equtes" analyss. j However, ths Court only consdered prncples of equty nsofar as t appled to the reasonng : behnd why an nsurer cannot be held lable for encumbrances known to the nsured as a matter f. 1 Wht that t f h b 1 d d o po cy m contract nterpretaton. e reasonng, as se ort y case aw, s prov e \ above, t s not to suggest that ths Court engaged n any analyss outsde nterpretaton of the :1 four comers of the Polcy at ssue : : t. 1, Ths agency was analyzed at length n ths Court's Memorandum opnon under date of December 23, See Memorandum Opnon, p. 5, under date of December 23, That same analyss s lad out above. Through sad analyss, and the record admsson of Northwest's counsel dscussed below, t s ths Court's determnaton that TCCPA dd act as a ' 1 l,. dual agent such that Fdelty cannot then be charged wth lablty n the creaton of the :1 fducary type relatonshp as created by Northwest between Northwest and TCCP A. l 1 provded therefor, whle the scope of an agency not prescrbed by wrtng s generay a jury queston, Northwest's counsel clearly ndcated on the record that ths Court could fnd an agency between TCCP A and Northwest. See Transcrpt of Proceedngs, Moton for the mones and drectons gven to TCCPA by Northwest to pay off the prorty loans of Ctzens and Charter, TCCPA was, n fact, actng as Northwest's agent. d. 8

17 1, ' Ths record admsson by Northwest's counsel ndcates that, contrary to Northwest's, 1 matters complaned of, there s not a genune queston of materal fact concernng the dual ',, agency oftccpa. That a prncple oftccpa then mshandled the funds cannot then be charged to Fdelty as there was, factuay and by admsson of counsel, an agency between J; ' 1 Northwest and TCCPA for the transfer of those funds to pay off the prorty len holders, f only for that lmted purpose. J l j Thus, ths Court fnds that no genune ssue of materal fact exsts, and upon consderaton of those agreed upon facts, Appeants', Northwest Savngs Bank, Moton for Partal Summary Judgment was properly dened. Lkewse, and for the reasons set forth herenabove, the Appeee's, Cross-Moton for Summary Judg~ent was properly granted such that Count and Count J of Appeant's Complant n Cvl Acton was properly dsmssed ' t. wth prejudce: l, As there has been no abuse of dscreton and/or error of law n ths Court's decson, the Appeant's, Northwest Savngs Bank, appeal should be dsmssed. Respectfuy submtted,?/..?de(.( ~ S. Mchael Yeager 1 Judp : j,. / J J h 9..