1. Andrew M. Wellman
1833 York Street South—Gulfport, FL 33707
awellman@law.stetson.edu--941-586-1688
WRITING SAMPLE #1
The first writing sample consists of two case briefs I prepared for the National Clearinghouse of
Science, Technology and the Law in the spring of 2013. Costanzo v. Gray was taken from a
series of cases on Expert Witnesses; Hawkins v. State relates to issues of Digital Evidence.
Background facts:
The NCSTL is a public forensic research database, based at Stetson, which can be found at
http://www.ncstl.org/
WRITING SAMPLE #2
This writing sample is an excerpt from a legal memorandum I prepared last year for a local
attorney. It is being used with permission, although both names and certain facts have been
redacted.
Background facts:
The attorney was representing a client who had written a large, company check, and who had
given the check to a family member before leaving Florida on a business trip. The check was
payable to a third party, and the family member was instructed to give the check to that party.
Unbeknownst to the client, the family member (who was not authorized to sign company checks)
acquired a second, blank company check, wrote it out for the same amount as the first check, but
making it payable to himself.
When the family member presented the check to the bank, a bank representative, seeking
ratification of the check, called the client long-distance for ratification. Via telephone, the client
authorized the check based on the amount of the check, not realizing that the check being
presented was a different check, payable to a different party, than the check originally written for
the same amount of money.
The question presented by the client was whether the bank could be held liable for payment on
this second, fraudulent check, which did not bear an authorized signature, and which was
mistakenly ratified by the client.

2. Costanzo v. Gray, 963 A.2d 1039 (Conn. App. 2009)
Costanzo sued Gray for negligence in Danbury (Connecticut) Superior Court, alleging medical
malpractice and battery. Gray, an orthopedic surgeon, had treated Costanzo for his lower back
pain, determining that Costanzo had a left side disc herniation. After “conservative treatments
proved unsuccessful,” Costanzo consented to surgery on the disc, “using the METRx retractor
system,” performed by Gray. However, Gray allegedly operated on the wrong side—the right
side instead of the left side—of Costanzo’s herniated disc.
At trial, Costanzo’s export testified that operating on the right side of the disc for a left disc
herniation “did not meet the applicable standard of care.” Gray’s expert testified that Gray had
“perform[ed] a left microdiscectomy but that he used a right sided approach, also called a
contralateral approach” and that such an approach was “within the applicable standard of care.
The jury found in favor of Gray, and Costanzo appealed on three separate grounds. First, when
asked about the pamphlet that he had used to describe the METRx procedure to Costanzo, Gray
testified at that he had used a pamphlet depicting the contralateral approach, and that he did not
recall ever providing a pamphlet describing a “same sided approach” and not a contralateral
approach, to any patients. When Costanzo attempted to ask Gray about a prior patient to whom
Gray had allegedly shown the same-sided pamphlet, the defense objected, as this prior patient
was also involved in “a separate malpractice action against Gray,” and that the same-sided
pamphlet was unfairly prejudicial as the jury might conclude that the lack of any contralateral
description in that pamphlet “as evidence of the proper approach.” Costanzo argued that the
same-sided pamphlet was relevant to Gray’s credibility, and asked to have it admitted “as a full
exhibit,” but the court declined, although “specifically [leaving] open the possibility that the
plaintiff could attack Gray’s credibility by calling a witness to testify that Gray had utilized the
Medtronic pamphlet during prior consultations.”
The Appellate Court of Connecticut agreed with the trial court and its reasoning, balancing the
same-sided pamphlet’s credibility purpose against concerns of undue prejudice, noting that
Costanzo had been permitted “to question Gray about the existence of the [same-sided]
pamphlet” and that Costanzo never called a witness to testify to being given the same-sided
pamphlet, despite being granted permission to do so.
Costanzo next claimed that he was wrongfully precluded from questioning Gray and Dr.
Murphy, an expert for the defense, about the standard of care for medical record keeping.
Constanzo had presented evidence that before the surgery, Gray had “submitted a medical
history form” which described Costanzo’s disc herniation as “right-sided” and that Costanzo’s
“symptoms were on the right side.” Gray would admit at trial that Costanzo had never reported
“any right sided symptoms,” and that he did not “have a right sided herniation.” However, when
Costanzo attempted to pose questions that tied the inaccuracy of these records to a breach of the
standard of care, Gray objected “on the grounds that the standard of care was beyond the scope
of the allegations in the complaint,” and because neither Gray nor Murphy had been recognized
by the court as a record keeping expert.
The Appellate Court again agreed with the analysis of the trial court, holding that Costanzo’s
“operative complaint made specific allegations” and that none of them “pertain[ed] to improper
record keeping,” but were “specific to the surgery.” In addition, the Appellate Court noted
several occasions in which the trial court had permitted the jury to hear evidence about “the

3. importance of keeping accurate medical records” and of instances where Gray had entered
erroneous and inaccurate information into Costanzo’s records.
Costanzo’s next ground for appeal was that “his motion to set aside the verdict on the battery
count” was improperly denied because Murphy had stated in his deposition that Gray “did not
‘technically’ perform a “left L4-L5 microdiscectomy,” the procedure to which the plaintiff
consented.” When asked about this at trial, Murphy testified that “I think that he did perform a
left sided microdiscectomy but through a different approach. Technically, I think the term would
indicate that he did the approach from the left side and that would not be accurate, because
obviously, he did it from the right side.” Coztanzo argued that this provided a valid basis for the
battery charge, as a “left sided L4-L5 microdiscectomy” was different that the “left L4-L5
microdiscectomy” to which he had consented, and that Gray had thus committed battery.
After indicating that it found Murphy’s testimony “somewhat confusing,” the Appellate Court
upheld the jury’s finding, holding that “even if the plaintiff’s interpretation of this statement is
accurate,” the jury still heard “ample evidence” that Gray had in fact performed the left L4-L5
microdiscectomy to which Costanzo had consented, including Murphy’s testimony that Gray
“attempted to do a left sided microdiscectomy . . . through a right sided approach, instead of a
left sided approach,” and pointing out that Murphy “did not draw any distinction between” the
two terms, and “appeared to use [them] interchangeably.”
Costanzo’s final ground for appeal was that “his motion to set aside the verdict on the medical
negligence count” was wrongly denied. Murphy had testified that if Gray had been “even
suspicious of the presence of a free fragment on the left,” employing the contralateral approach
would be a breach of the standard of care. Prior to the surgery, Gray had written that the “disc
herniation was ‘probably in part free fragment,’” but that he “spoke with a radiologist and
eventually agreed with the radiologist’s report” that did not show a free fragment. Also, no
evidence of a free fragment was ever submitted into evidence. Costanzo argued that as that
radiology report made no mention of free fragments, and that “it was unreasonable for the jury”
to conclude that the radiologist could have persuaded Gray to alter his original “probably in part
free fragment” notation. Gray argued that it was, in fact, a reasonable conclusion, and the
appellate court agreed that there was sufficient evidence from which the jury could have made
this conclusion, remarking that “[e]ssentially the plaintiff is asking this court to determine that
Gray and Murphy were not credible. That is not the province of this court.”
Having found for the appellee on all four issues, the Appellate Court affirmed the judgment.
Hawkins v. State, 704 S.E.2d 886 (Ga. App. 2010) aff'd, 723 S.E.2d 924 (Ga. 2012)
Hawkins, facing drug charges, appealed a trial court’s denial of her motion to suppress evidence
of text messages obtained from two cell phones, including her own, claiming that “the seizure
and search of her cell phone were unreasonable,” and that the Lowndes County (Georgia)
Sheriff’s Office lacked the authority to use the cell phone of another individual to send and
receive text messages from her.
Hawkins had sent cell phone text messages in which she allegedly arranged to meet with an
unidentified young man to purchase “certain controlled substances” in pill form. Unbeknownst
to her, the young man’s mother, suspecting his involvement with narcotics, had given her son’s
cell phone to the police, and Hawkins had actually been exchanging text messages with a police
officer. When she arrived at the arranged destination (a restaurant) to purchase the pills, an

4. officer witnessed her “entering data into her phone,” just before receiving a text message from
Hawkins “on the son’s cell phone, in which Hawkins announced her arrival at the restaurant.”
Shortly thereafter, Hawkins was placed under arrest. She admitted to sending the text messages
arranging the meeting, and consented to a search of her vehicle. Finding her cell phone inside
her purse, an officer then “searched for, and found . . . the text messages” arranging the meeting,
and “downloaded and printed them.” No warrant was obtained for the arrest, the search of the
vehicle, or the search of the phone.
In her motion, Hawkins argued that the warrantless seizure and search of her cell phone violated
her Fourth Amendment rights. The Georgia Court of Appeals disagreed, pointing out that “a
search incident to a lawful arrest” is an exception “to the warrant requirement,” and that Hawkins
did not dispute that her arrest had been lawful. The court also cited the Supreme Court decision
in U.S. v. Gant, a “narrow reading” of which provided that a warrantless search of the vehicle
was reasonable following the arrest of “the occupant or recent occupant” of the vehicle, and,
citing the facts of the case, held that police had “every reason to believe” that the text messages,
as “evidence of the crime for which Hawkins was arrested,” could be recovered from the vehicle
upon her arrest, allowing a search for them “in any place in the vehicle in which the text
messages reasonably might be found.”
Addressing issues relating to the plain view of the text messages, the Court of Appeals also
pointed to opinions finding that a “cell phone is roughly analogous to an electronic ‘container’
that properly can be ‘opened’ and searched” for data. As the record indicated police “found or
looked for” no other data on the cellphone besides the specific text messages sought, the search
was thus sufficiently limited in scope.
Hawkins also argued that police “did not have the authority” to use the second cellphone to
either read her text messages or to reply to her text messages without consent from the owner of
the cell phone. The court rejected the claim that the conduct of police was “comparable to
wiretap interception of a telephone conversation,” pointing out that the relevant Georgia statute
excludes individuals who are “a party to the communication,” and found that Hawkins had no
standing “to claim a violation of the constitutional rights of the son.”
Concurring with the majority, Chief Judge Miller however disagreed with their analysis of Gant,
stating that “warrantless search of the cell phone’s data was properly allowed for the purpose of
evidence preservation” for use at trial. Judge Phipps wrote a partial dissent, finding the search
unreasonable under the Fourth Amendment, pointing to testimony that the cell phone was not
found during the search of Hawkins’s vehicle, but during a search of her purse, and disagreeing
with the analogy of a cell phone as a “closed container”
Upon further appeal, the Georgia Supreme Court agreed with the Court of Appeals and the
majority opinion analysis of Gant. The Court also agreed with the finding that a cell phone is
“similar to a traditional container that can be opened” and searched, pointing out that the
“potentially high volume of information stored in the cell phone should not control the question
of whether that electronic container may be searched,” and concluding that “reviewing the
reasonable scope of the search will largely be a fact-specific inquiry.”

5. To: XX
From: Andrew Wellman
Date: September 2014
Re: Unauthorized signature on corporate check
Below I have condensed my findings which attempt to summarize material included
under the three subheadings beginning on page four. I also attached the full version of UCC § 4-
406, with comments, as those official comments contained background which I found helpful
[NOTE—not included here].
GENERAL SUMMARY
If a corporate check is signed by an individual not authorized to sign checks on behalf of
that corporation, that check is not properly payable under Florida statute unless a party with the
authority to make such an authorization effectively ratifies the signature. Under Florida law,
banks owe no fiduciary duty to customers, and customers who are themselves defrauded into
ratifying otherwise unauthorized transactions typically may only seek relief from the defrauding
party. Here, however, it appears that the bank failed to get adequate ratification of the
unauthorized signature from the customer, by failing to provide the customer with full
knowledge of all material facts relating to the unauthorized signature.
The UCC states that ratification “may be found from conduct as well as express
statements.” Florida courts have held that such affirming conduct may include:
 “[C]onduct which can be rationally explained only if there were an election to treat a
supposedly unauthorized act as in fact authorized.” Fulka v. Florida Commercial Banks,
Inc., 371 So. 2d 521, 524 (Fla. Dist. Ct. App. 1979)
 “If a party knows of the wrongful conduct at issue, does not reject it, and takes any
material act inconsistent with an intent to avoid it or delays in asserting any remedial
rights, then the party ratifies the transaction.” Citron v. Wachovia Mortgage Corp., 922 F.
Supp. 2d 1309, 1321 (M.D. Fla. 2013)

6. Other Florida decisions have expanded on the knowledge requirement:
 “The principal must have full knowledge of the initially unauthorized agents' conduct and
approve of that conduct.” Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330,
1355 (11th Cir. 2011)
 “Before ratification will be implied of an act of an unauthorized agent it must be made to
appear that the principal has been fully informed and that he has approved.” Ball v.
Yates, 158 Fla. 521, 527, 29 So. 2d 729, 732 (1946).
Although Florida case law has only addressed the issue of ratification in decisions
involving contract and agency, and not negotiable instruments, other states have acknowledged
identical ratification requirements for unauthorized or forged signatures on negotiable
instruments.
Defenses available to the bank arise from the UCC, and relate to the account agreement.
Florida statute provides for 180 days during which the customer must discover and report an
unauthorized signature, although this window may be shortened via the written account
agreement. Florida’s bank statement rule mirrors the UCC in that a bank statement is not
required to provide the name of the payee, but merely the check number, amount, and date.
Depending on what information the bank did provide to this customer, and the amount of time
which elapsed before the customer reported the unauthorized signature, the finding of fact will
involve a determination of whether the customer should reasonably have discovered the
unauthorized transaction.
Beyond that, defenses available to the bank include (again) showing that the customer
had full knowledge of all material facts, or that the customer, through negligence, substantially
contributed to bank’s decision to accept the unauthorized check. Such a defense often invokes
the customer’s duty to keep blank checks secure, often incorporated in the account agreement.
Final note: Although certain changes have been made to UCC provisions regarding
unauthorized signatures, these changes do not relate to ratification; rather, they reflect the

7. elimination of an unintentional statutory distinction between “forged” signatures and
“unauthorized” signatures.
1. The check was not properly payable because the signature was unauthorized.
Florida statute § 671.201(44) defines an unauthorized signature as “a signature made
without actual, implied, or apparent authority.” This definition is based upon the definition
provided by the Uniform Commercial Code.
Fla. Stat. § 673.4031(1) states that “Unless otherwise provided in this chapter or chapter
674, an unauthorized signature is ineffective except as the signature of the unauthorized signer in
favor of a person who in good faith pays the instrument or takes it for value. An unauthorized
signature may be ratified for all purposes of this chapter.”
UCC Official Comment 3, referring to the final sentence of that subsection, states that
“Ratification is a retroactive adoption of the unauthorized signature by the person whose name is
signed and may be found from conduct as well as from express statements. For example, it may
be found from the retention of benefits received in the transaction with knowledge of the
unauthorized signature.”
Two Florida decisions discussing effective ratification of unauthorized signatures on a
negotiable instrument:
“The “affirmance” thus required to create a ratification may arise from conduct which
can be rationally explained only if there were an election to treat a supposedly
unauthorized act as in fact authorized. Restatement of Agency, 2d s 83 (1958); see
Thermo Contracting Corp. v. Bank of New Jersey, 69 N.J. 352, 354 A.2d 291, 296
(1976); Atlas Building Supply Co., Inc. v. First Independent Bank of Vancouver, 15
Wash.App. 367, 550 P.2d 26, 28 (1976); Common Wealth Ins. Systems, Inc. v. Kersten,
40 Cal.App.3d 1014, 115 Cal.Rptr. 653 (1974); cf. G & M Restaurants Corp. v. Tropical
Music Service, Inc., 161 So.2d 556 (Fla. 2d DCA 1964). That principle is directly
applicable here. Mrs. Fulka's actions can be fairly viewed only as evincing her intention
to approve and agree to the results of the bank's action in letting Okum have the money.”
Fulka v. Florida Commercial Banks, Inc., 371 So. 2d 521, 524 (Fla. Dist. Ct. App. 1979)

8. and
“An “unauthorized signature” is code-defined as “one made without actual, implied or
apparent authority and includes a forgery.” Fla.Stats. s 671.1-201(43), UCC s 1-201(43).
In substance, section 3-404 permits the unauthorized signature to bind the person whose
name is signed in favor of anyone who in good faith and for value takes “The instrument
” (as defined), where the person whose name is signed “ratifies” the unauthorized
signature or “is precluded from denying” it. For purposes of this section, a person may
ratify his unauthorized signature if he knowingly assents to it by express statement or
conduct (such as retaining benefits accruing from the signature), and he may be precluded
from denying *567 it not only by estoppel but also by negligence in permitting or failing
to disavow it. 2 Anderson, Uniform Commercial Code ss 3-404.4-.7 (1971); White and
Summers, Uniform Commercial Code 402 (1972); UCC Official Code Comment s 3-404,
quoted at 2 White, pp. 919-920.” European Am. Bank & Trust Co. v. Starcrete Int'l Ind.,
Inc., 613 F.2d 564, 566-67 (5th Cir. 1980)
2. The unauthorized signature was not effectively ratified by the person with the
authority to do so.
In Florida, there has not yet been much case law specifically discussing ineffective
ratification of unauthorized signatures on negotiable instruments; such decisions have instead
arisen under agency law, and involve other types of transactions. Molinos Valle Del Cibao, C.
por A. v. Lama, involved contracts, and cited two earlier decisions, both of which are also
excepted below
“Ratification of an agreement occurs where a person expressly or impliedly adopts an act
or contract entered into in his or her behalf by another without authority.” Deutsche
Credit Corp. v. Peninger, 603 So.2d 57, 58 (Fla. 5th Dist.Ct.App.1992) (citations
omitted). The principal must have full knowledge of the initially unauthorized agents'
conduct and approve of that conduct. Frankenmuth Mut. Ins. Co. v. Magaha, 769 So.2d
1012, 1021–22 (Fla.2000).” Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330,
1355 (11th Cir. 2011)
Deutsche Credit Corp. v. Peninger also involved an unauthorized signature on a contract:
“Ratification of an agreement occurs where a person expressly or impliedly adopts an act
or contract entered into in his or her behalf by another without authority. Carolina
Georgia Carpet & Textiles, Inc. v. Pelloni, 370 So.2d 450 (Fla. 4th DCA 1979). See also
Port Largo Club, Inc. v. Warren, 476 So.2d 1330 (Fla. 3d DCA 1985); G & M
Restaurants Corp. v. Tropical Music Service, Inc., 161 So.2d 556 (Fla. 2d DCA 1964).
An agreement is deemed ratified where the principal has full knowledge of all material

9. facts and circumstances relating to the unauthorized act or transaction at the time of the
ratification. G & M, 161 So.2d at 558. See also Ball v. Yates, 158 Fla. 521, 29 So.2d 729
(1946), cert. den., 332 U.S. 774, 68 S.Ct. 66, 92 L.Ed. 359 (1947); Pedro Realty Inc. v.
Silva, 399 So.2d 367 (Fla. 3d DCA 1981); Bach v. Florida State Bd. of Dentistry, 378
So.2d 34 (Fla. 1st DCA 1979). An affirmative showing of the principal's intent to ratify
the act in question is required. Pelloni, 370 So.2d at 452. Moreover, the issue of whether
an agent's act has been ratified *59 by the principal is a question of fact. One Hour Valet
of America, Inc. v. Keck, 157 So.2d 83 (Fla. 2d DCA 1963).” Deutsche Credit Corp. v.
Peninger, 603 So. 2d 57, 58-59 (Fla. Dist. Ct. App. 1992)
Finally, Frankenmuth Mut. Ins. Co. v. Magaha dealt with the issue of whether a county
commission had effectively ratified a lease purchase agreement, and the court took the
opportunity to fairly extensively cite other previous cases:
“Second, in addition to the requirement that a subsequent approval in the form of
ratification be made “in the sunshine” in the same manner that a formal approval would
have required, there are several other general principles undergirding the concept of
ratification warranting our attention. In the vintage opinion of Ball v. Yates, 158 Fla. 521,
527, 29 So.2d 729, 732 (1946), this Court stated, “Before ratification will be implied of
an act of an unauthorized agent it must be made to appear that the principal has been fully
informed and that he has approved.” In Peninger, 603 So.2d at 58, the Fifth District
Court of Appeal expounded upon the general pronouncement made by this Court in Ball:
‘An agreement is deemed ratified where the principal has full knowledge of all
material facts and circumstances relating to the unauthorized act or transaction at
the time of the ratification. G & M [Restaurants v. Tropical Music Service], 161
So.2d [556] at 558 [Fla. 2d DCA 1964]. See also Ball v. Yates, 158 Fla. 521, 29
So.2d 729 (1946), cert. den., 332 U.S. 774, 68 S.Ct. 66, 92 L.Ed. 359 (1947);
Pedro Realty Inc. v. Silva, 399 So.2d 367 (Fla. 3d DCA 1981); Bach v. Florida
State Bd. of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979). An affirmative showing
of the principal's intent to ratify the act in question is required. [Carolina–Georgia
Carpet & Textiles v.] Pelloni, 370 So.2d [450] at 452 [Fla. 4th DCA 1979].
Moreover, the issue of whether an agent's act has been ratified by the principal is
a question of fact. One Hour Valet of America, Inc. v. Keck, 157 So.2d 83 (Fla. 2d
DCA 1963).
“Regarding the “full knowledge” requirement discussed in Peninger, the First District
stated the following in Bach v. Florida State Board of Dentistry, 378 So.2d 34, 36–37
(Fla. 1st DCA 1979):
‘Before one may infer that a principal ratified an unauthorized act of his agent, the
evidence must demonstrate that the principal was fully informed and that he
approved of the act. Ball v. Yates, 158 Fla. 521, 29 So.2d 729, 732 (1946). It is
generally the rule that the doctrine of constructive knowledge does not apply to

10. bring about ratification. The principal is charged only upon a showing of full
knowledge, and not because he had notice which should have caused him to make
inquiry, which in turn would have brought to his attention the knowledge of the
unauthorized act of the employee. 2 Fla.Jur.2d, Agency and Employment, § 52 at
page 204 (1977).... There is no duty imposed upon the principal to make inquiries
as to whether his agent has carried out his responsibilities. The principal “has a
right to presume that his agent has followed instructions, and has not exceeded his
authority.” Oxford Lake Line v. First Nat. Bank, 40 Fla. 349, 24 So. 480, 483
(1898). And,
‘[w]henever he is sought to be held liable on the ground of ratification,
either express or implied, it must be shown that he ratified upon full
knowledge of all material facts, or that he was willfully ignorant, or
purposely refrained from seeking information, or that he intended to adopt
the unauthorized act at all events, under whatever circumstances. Id.’”
Frankenmuth Mut. Ins. Co. v. Magaha, 769 So. 2d 1012, 1021-22 (Fla.
2000)
Elsewhere, a New York district court discussed ratification as it applied to the U.C.C.
ratification provision for unauthorized signatures on a negotiable instrument. The facts in
Zambia Nat. Commercial Bank Ltd. v. Fid. Int'l Bank closely parallel the question presented, as
Zambia sought to recover on two forged checks written and paid from its account at the
Defendant’s bank. As the Defendant claimed a defense of ratification under the aforementioned
UCC provision, the court found that:
Although the court's research reveals a dearth of caselaw in New York on the subject of
ratification under U.C.C. § 3–404, we take notice of the decisions of other courts
construing the same provision of the U.C.C. in their respective jurisdictions. The essence
of a ratification pursuant to § 3–404 is that the drawer has full knowledge of all the
material facts and manifests an intent to ratify the unauthorized signature. See Thermo
*1391 Contracting Corp. v. Bank of New Jersey, 69 N.J. 352, 354 A.2d 291, 295–296
(1976); Thieme v. Seattle–First Nat'l Bank, 7 Wash.App. 845, 502 P.2d 1240, 1242
(1972) (cited in Thomas M. Quinn, Uniform Commercial Code Commentary and Law
Digest, § 3–404 at 3–161 (1987 & 1991 Supp.)). Zambia Nat. Commercial Bank Ltd. v.
Fid. Int'l Bank, 855 F. Supp. 1377, 1390-91 (S.D.N.Y. 1994) amended in part, 91 CIV.
8747 (BN), 1994 WL 440717 (S.D.N.Y. Aug. 12, 1994) and amended, 91 CIV. 8747
(BN), 1994 WL 557050 (S.D.N.Y. Oct. 7, 1994)
Thermo Contracting Corp. v. Bank of New Jersey dealt with unauthorized indorsments:

11. “Approval of these principles is found in Goldfarb v. Reicher, 112 N.J.L. 413, 171 A. 149
(Sup.Ct.1934), aff'd o.b. 113 N.J.L. 399, 174 A. 507 (E. & A.1934). Ratification requires
intent to ratify plus full knowledge of all the material facts. Passaic-Bergen Lumber Co.
v. United States Trust Co., 110 N.J.L. 315, 164 A. 580 (E. & A.1933); 2 Anderson,
U.C.C. s 3-404:7, p. 924 (2d Ed.1971). Ratification may be express or implied, and intent
may be inferred from the failure to repudiate an unauthorized act, East Orange v. Bd. of
Water Comm'rs. of East Orange, 73 N.J.Super. 440, 180 A.2d 185 (Law Div.1962), aff'd
40 N.J. 334, 191 A.2d 747 (1963); Johnson v. Hospital Service Plan of N.J., 25 N.J. 134,
135 A.2d 483 (1957); from inaction, Vogt v. Borough of Belmar, 14 N.J. 195, 101 A.2d
849 (1954); or from conduct on the part of the principal which is inconsistent with any
other position than intent to adopt the act. Common Wealth Ins. Systems, Inc. v. Kersten,
40 Cal.App.3d 1014, 115 Cal.Rptr. 653 (Ct. of App.1974).” Thermo Contracting Corp. v.
Bank of New Jersey, 69 N.J. 352, 361, 354 A.2d 291, 296 (1976)
3. Possible defenses by the bank:
a. That the customer substantially contributed to the making of the unauthorized
signature, but not that the customer substantially contributed to the bank’s acceptance of the
check
i. “Neither section 673.406 of Florida's Uniform Commercial Code,
however, nor Florida case law construing it impose explicitly, or imply
factually, the requirement that the type of negligence involved be such as
to have contributed to the bank's acceptance of the check. See, e.g., First
National Bank v. Keshishian, 427 So.2d 313 (Fla. 5th DCA 1983). The
statute only requires that the negligent conduct be of a type to have
substantially contributed to the making of the unauthorized signature.”
Key Bank of Florida v. First United Land Title Co., 502 So. 2d 1280, 1283
(Fla. Dist. Ct. App. 1987)
b. Florida’s Bank statement rule:
i. “ If a bank sends or makes available a statement of account or items
pursuant to subsection (1), the customer must exercise reasonable promptness in
examining the statement or the items to determine whether any payment was not
authorized because of an alteration of an item or because a purported signature by
or on behalf of the customer was not authorized. If, based on the statement or
items provided, the customer should reasonably have discovered the unauthorized
payment, the customer must promptly notify the bank of the relevant facts.” Fla.
Stat. § 674.406(3)

12. Fla. Stat. § 674.406(6) provides that the customer has 180 days to discover and report an
unauthorized signature. However, this statutory period may be shortened via the account
agreement.
Important note: The bank is not required to provide, as part of the bank statement rule,
the name of the payee on the check. “The statement of account provides sufficient information if
the item is described by item number, amount, and date of payment.” Fla. Stat. § 674.406(1).
Official Comment 1 under the UCC states that an image of the check also complies with this
rule.