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TERRE HAUTE INDUS. v. PAWLIK

May 3, 1991

TERRE HAUTE INDUSTRIES, INC., Plaintiff,
v.
HENRY A. PAWLIK and FIRST NATIONAL BANK IN DOLTON, Defendants



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE

 Before the court are the cross motions of plaintiff Terre Haute Industries ("Terre Haute") and defendant First National Bank in Dolton ("National"). National moves for summary judgment on Count IV and V of Terre Haute's Second Amended Complaint. Terre Haute moves for summary judgment on Count IV only. For the reasons discussed below, summary judgment is granted in favor of National on Count V. Summary judgment is denied as to both parties on Count IV.

 FACTS

 Defendant Henry Pawlik ("Pawlik") was employed by Utirsa Corporation (plaintiff's predecessor in interest) as a bookkeeper and accountant. Plaintiff alleges that in December of 1981, Pawlik told Utirsa that the corporation owed $ 18,338 in federal income taxes. Utirsa prepared a check in this amount drawn on its corporate account at Central National Bank, payable to National. According to plaintiff, Utirsa gave the check to Pawlik for the purpose of establishing a tax escrow account at National. *fn1" Utirsa itself had no existing account at National and had no banking relationship there. Rather than setting up a tax escrow account on behalf of Utirsa, Pawlik deposited the check into his own existing account at National and subsequently spent the money for his own purposes.

 In September of 1982, Pawlik allegedly told Utirsa that the company owed $ 25,000 in federal taxes. Utirsa made out another check, payable to National, and gave it to Pawlik, who again deposited the money into his own account at National and later used the money for himself.

 In January of 1983, Pawlik allegedly represented to Utirsa that it needed to write a check for $ 44,500 to cover its latest federal tax liability. Utirsa prepared a check drawn on its account at The Bank of Charleston, made payable to:

 
First National Bank of Dolton
 
1510 Chicago Road
 
Dolton, Illinois 60409

 Like the previous two checks, this check bore no legend whatsoever as to its purpose and contained no restrictive endorsement as to how it was to be applied. The check was neither signed by nor endorsed by Pawlik and Pawlik's name appeared nowhere on either side of the check. As he had done with the previous checks, Pawlik deposited this check into his own account at National and spent the funds for his own purposes.

 Ultimately, plaintiff discovered that it in fact had negative tax liability for tax years in which Pawlik allegedly represented that taxes were due and owing. *fn2" On January 11, 1988, Terre Haute filed the instant diversity action on behalf of Utirsa, which had been liquidated sometime after the events at issue. In its Second Amended Complaint, Terre Haute alleges claims against Pawlik and National for conversion of the funds covered by these checks. In Count IV of the Second Amended Complaint, plaintiff alleges that National unlawfully converted the check for $ 44,500 "by accepting it for deposit into Pawlik's personal account without first determining Pawlik's authority with regard to said check." Terre Haute has moved for summary judgment on Count IV and National has cross-moved for summary judgment on the same issue.

 National also moves for summary judgment on Count V, in which plaintiff alleges conversion against National with regard to the $ ...


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