Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF STONE COUNTY Honorable Mark A.
W. SHEFFIELD, C.J.
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.
and Procedural Background
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.
March 1, 2008, Mr. Borowski was added to a checking
accountbelonging to Andrew Dumelle, Jr. ("Mr.
Dumelle"). Sometime later, Mr. Dumelle died, leaving Mr.
Borowski as the sole owner of the account.
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.
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.
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.
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. Mr. Borowski
One: Summary Judgment
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 ...