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Smith v. Franklin Custodian Funds Inc.

October 22, 1998

LUCILLE SMITH
v.
FRANKLIN CUSTODIAN FUNDS, INC.



Before Prather, C.j., Roberts And Mills, JJ.

The opinion of the court was delivered by: Mills, Justice, For The Court

DATE OF JUDGMENT: SEPTEMBER 3, 1997

TRIAL JUDGE: HON. HENRY LAFAYETTE LACKEY

COURT FROM WHICH APPEALED: LAFAYETTE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - OTHER

¶1. On January 31, 1994, Bernie Smith, Junior and his wife Lucille filed a civil action in the Lafayette County Circuit Court against Franklin Custodian Funds, Inc. The trial Judge granted summary judgment in August of 1997. Aggrieved, Lucille Smith *fn1 brings this appeal assigning the following issues as error:

I. WHETHER SMITH'S CLAIMS ARE BARRED BY THE STATUTE OF LIMITATIONS.

II. WHETHER THERE IS SUFFICIENT PROOF OF A CONVERSION CLAIM.

III. WHETHER THERE IS SUFFICIENT PROOF OF THE UCC ARTICLE 8 CLAIMS.

IV. WHETHER THERE IS SUFFICIENT PROOF OF THE NEGLIGENCE CLAIMS.

STATEMENT OF THE FACTS

¶2. Bernie L. Smith III, Lucille and Bernie Smith's son, owned and operated a business known as Institutional Financial Services, Inc. which was a subsidiary of Raymond James and Associates, Inc. Bernie III was employed by Institutional Financial Services and served as an investment advisor for his parents Bernie and Lucille Smith Junior (hereinafter the Smiths) from 1986 until 1993. While he was a representative for Raymond James Inc., Bernie III purchased shares of Franklin US Government Securities Fund for the Smiths. On March 13, 1987, the Smiths owned securities valued at $113, 733.30 in the Franklin US Government Securities Fund.

¶3. On or about March 13, 1987 Franklin Funds received an Irrevocable Stock or Bond Power bearing signatures in the names of the Smiths. The form also bore a statement and seal in the name of Raymond James which guaranteed that the Smiths' signatures were genuine. The form instructed Franklin Funds to liquidate the securities in the Smiths' account. Lucille Smith claims that neither she nor her husband signed the Irrevocable Stock or Bond Power and that Bernie III signed their names to the document.

¶4. Upon receipt of the Irrevocable Stock or Bond Power form, Franklin Funds liquidated the securities in the Smiths' account and issued a check on March 30, 1987 payable to "Raymond James and Assoc. Inc. a/c Bernie and Lucille Smith J/T" in the amount of $113,733.30. Franklin Funds mailed the check to Raymond James, Inc. which was listed as the Smith's brokerage company. Bernie III received the Franklin Funds check and deposited it into the Raymond James, Inc. account. Subsequently, Raymond James, Inc. issued a check to the Smiths. The Smiths never received this check because Bernie III forged the Smiths' endorsement on the back of the check and deposited the check into his personal account. Bernie III never repaid his parents.

¶5. Bernie III concealed his fraud from his parents by assuring the Smiths that their investments were doing well and by sending them a $1200 per month income check which they believed to be income produced from their investments. *fn2 The Smiths contend that they discovered Bernie III 's deceit in March 1993. Subsequently, the Smiths gave notice to Franklin Funds that their securities were liquidated without their authorization and asked Franklin Funds to restore their securities or pay the proceeds. When Franklin Funds refused the Smiths brought this suit.

STANDARD OF REVIEW

¶6. When reviewing a lower court's decision to grant summary judgment this Court will employ a de novo standard of review. Moore ex rel. Benton County v. Renick, 626 So.2d 148, 151 (Miss. 1993). In other words, we will use the same standard applied by the trial court. Renick, 626 So. 2d at 151. A de novo review of a case requires that we examine all evidence in the record in a light most favorable to the non-moving party. Id. (citing Smith v. Sanders, 485 So.2d 1051, 1054 (Miss. 1986). Mississippi Rule of Civil Procedure 56(c) dictates that summary judgment is only granted when the moving party illustrates that there is no genuine issue of material fact and he is entitled to judgment as a matter of law. Mink v. Andrew Jackson Cas. Ins. Co., 537 So.2d 431, ...


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