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Borowski v. J.P. Morgan Chase Bank, N.A.

Court of Appeals of Missouri, Southern District, First Division

December 21, 2016

RAYMOND BOROWSKI, Plaintiff-Appellant,
v.
J.P. MORGAN CHASE BANK, N.A., Defendant-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF STONE COUNTY Honorable Mark A. Stephens

         AFFIRMED.

          OPINION

          MARY W. SHEFFIELD, C.J.

         Raymond Borowski ("Mr. Borowski") appeals from the trial court's judgment in favor of J.P. Morgan Chase Bank, N.A. ("Chase") in a case involving unauthorized withdrawals from Mr. Borowski's accounts. Mr. Borowski raises two points: (1) that the trial court erred in granting summary judgment for Chase because to do so the trial court had to resolve numerous issues of disputed material fact and (2) that the trial court erred in dismissing Mr. Borowski's claim of negligence in the performance of a contract. Point One fails because the undisputed material facts show Mr. Borowski failed to notify Chase of the unauthorized transactions within the time period specified by the account agreement. Moreover, under the terms of the account agreement, resolution of Point One renders Point Two moot. Consequently, we affirm the trial court's judgment.

         Factual and Procedural Background

         On appeal from an order granting summary judgment, this Court views "the record in the light most favorable to the party against whom judgment was entered" and accords "the non-movant the benefit of all reasonable inferences from the record." ITT Comm. Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). So viewed, the following facts appear in the parties' summary judgment documents.

         On March 1, 2008, Mr. Borowski was added[1] to a checking account[2]belonging to Andrew Dumelle, Jr. ("Mr. Dumelle"). Sometime later, Mr. Dumelle died, leaving Mr. Borowski as the sole owner of the account.

         On January 17, 2009, Jesse Padgett ("Mr. Padgett") went to a Chase branch and presented a power of attorney purportedly signed by Mr. Borowski. A Chase employee accepted the power of attorney and created new signature cards for Mr. Borowski's accounts. Throughout 2008 and 2009, several transactions were made from Mr. Borowski's accounts by and to Mr. Padgett.

         On July 14, 2010, Mr. Borowski granted a power of attorney to Paul Fisher ("Mr. Fisher"). In August 2010, Mr. Fisher went to a Chase branch, notified someone at the branch of "problems" with Mr. Borowski's accounts, and requested records pertaining to the accounts.

         On February 24, 2011, Mr. Borowski sued Mr. Padgett, Chase, and several others based on allegations that Mr. Padgett made unauthorized transfers from Mr. Borowski's accounts. As ultimately amended, Mr. Borowski's claims against Chase included conversion, fraudulent transfer, negligence, breach of contract, and negligence in the performance of a contract. Chase thereafter filed a motion for summary judgment, arguing Mr. Borowski was barred from recovery because he failed to report the unauthorized transfers, and a motion to dismiss, arguing that Mr. Borowski failed to state a cause of action for conversion or fraudulent transfer and that negligence in the performance of a contract was not a valid cause of action as between contracting parties.

         The trial court granted Chase's motions, thereby resolving all Mr. Borowski's claims against Chase, and certified the judgment as final for purposes of appeal.[3] Mr. Borowski appeals.

         Discussion

         Point One: Summary Judgment

         In his first point, Mr. Borowski claims the trial court erred in granting summary judgment in favor of Chase because that ruling improperly resolved several issues of disputed fact, including whether Chase exercised ordinary care in accepting the power of attorney from Mr. Padgett, whether account statements were actually sent, and whether Mr. Borowski timely notified Chase of the allegedly unauthorized transactions. Mr. Borowski also makes several legal and factual arguments about the 2009 signature cards. Mr. Borowski's argument fails because, under the terms of the account agreement, Mr. Borowski had no claim against Chase unless he notified Chase of unauthorized items within 30 days or of errors with ...


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