RAYMOND BOROWSKI,                         )
                                          )
      Plaintiff-Appellant,                )
                                          )
vs.                                       )     No. SD34136
                                          )
J.P. MORGAN CHASE BANK, N.A.,             )     Filed: December 21, 2016
                                          )
      Defendant-Respondent.               )

          APPEAL FROM THE CIRCUIT COURT OF STONE COUNTY

                             Honorable Mark A. Stephens

AFFIRMED

      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 added1 to a checking account2

belonging to Andrew Dumelle, Jr. ("Mr. Dumelle"). Sometime later, Mr. Dumelle

died, leaving Mr. Borowski as the sole owner of the account.




1
  In his response to Chase's statement of material uncontroverted facts, Mr. Borowski takes issue
with the use of the phrase "added to a checking account." However, this phrase, like many of the
other facts asserted in Chase's statement of material uncontroverted facts, was deemed admitted
under Rule 74.04. Rule 74.04 requires the party seeking summary judgment to attach a
statement of uncontroverted material facts to the motion for summary judgment. Rule
74.04(c)(1). Then, the party responding to a moving party's statement of uncontroverted material
facts must "set forth each statement of fact in its original paragraph number and immediately
thereunder admit or deny each of movant's factual statements." Rule 74.04(c)(2). Furthermore,
"[a] denial may not rest upon the mere allegations or denials of the party's pleading[,]" and "the
response shall support each denial with specific references to the discovery, exhibits or affidavits
that demonstrate specific facts showing that there is a genuine issue for trial." Id. "A response
that does not comply with this Rule 74.04(c)(2) with respect to any numbered paragraph in
movant's statement is an admission of the truth of that numbered paragraph." Id. Incorporation
of legal arguments does not satisfy the requirements of the rule. See Mothershead v.
Greenbriar Country Club, Inc., 994 S.W.2d 80, 85 (Mo. App. E.D. 1999). Mr. Borowski's
responses to paragraphs 4, 15-18, 22-23, 31-32, 36,and 45 do not comply with Rule 74.04(c)(2)
because they do not include a citation to the discovery, exhibits or affidavits. Mr. Borowski's
paragraphs 4, 15-18, 22-23, 31-32, 36, and 45 are thus deemed admitted. Those facts will be
included above and treated as true for purposes of this opinion without further notation or
discussion. All rule references are to Missouri Court Rules (2016).
2 The parties' summary judgment documents also include information about a savings account.

Mr. Borowski does not appear to allege any unauthorized transactions involved that account.

                                                 2
       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.



3Mr. Borowski subsequently obtained a default judgment against Mr. Padgett for a total amount
of $476,171.52 in actual damages and $2 million in punitive damages.

                                              3
                                   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 respect to electronic funds transfers ("EFTs") within 60 days and the

undisputed material facts show Mr. Borowski did not notify Chase of the

unauthorized transactions within that time.

       "When considering appeals from summary judgments, the Court will

review the record in the light most favorable to the party against whom judgment

was entered." ITT, 854 S.W.2d at 376. Moreover, the Court will "accord the

non-movant the benefit of all reasonable inferences from the record." Id.

Appellate review of the order granting summary judgment is de novo. Id.

       "The criteria on appeal for testing the propriety of summary judgment are

no different from those which should be employed by the trial court to determine

the propriety of sustaining the motion initially." Id. Those criteria are in turn

determined by the classification of the moving party as either a claimant or a



                                          4
defending party. Id. at 380. Here, Chase was a defending party because Mr.

Borowski sought to recover from Chase. See id.

       [A] "defending party" may establish a right to judgment by showing
       (1) facts that negate any one of the claimant's elements facts, (2)
       that the non-movant, after an adequate period of discovery, has not
       been able to produce, and will not be able to produce, evidence
       sufficient to allow the trier of fact to find the existence of any one of
       the claimant's elements, or (3) that there is no genuine dispute as to
       the existence of each of the facts necessary to support the movant's
       properly-pleaded affirmative defense.

Id. at 381. In its motion for summary judgment, Chase sought judgment because

Mr. Borowski failed to report the unauthorized transactions. That is, Chase

sought judgment on the ground that there was no genuine dispute as to the

existence of each of the facts necessary to support its contract defense.

       "Generally speaking, the relation of a bank to its depositor is . . . subject to

contract." Scott v. Union Planters Bank, N.A., 196 S.W.3d 574, 577 (Mo.

App. S.D. 2006) (quoting Washington County Mercantile Bank v.

Kennedy, 855 S.W.2d 520, 522 (Mo. App. E.D. 1993)). Here, the account

agreement contained several provisions regarding unauthorized transactions.

First, the account agreement stated:

       If we honor a check or other item drawn on or posted to your
       Account that is altered in any way or was not drawn or otherwise
       authorized by you ("unauthorized item") or if your Account
       statement contains any errors, you agree to notify us in writing of
       such unauthorized item or error within 30 days of the date on
       which the unauthorized item, or the Account statement that
       contained a description of the unauthorized item or error, was
       mailed, transmitted or otherwise made available to you.

(Emphasis added). The agreement went on to provide consequences for failure to

comply with the notice provisions:



                                           5
      Failure to report an unauthorized item or error, or that you did not
      receive your scheduled statement, within the 30-day time frame set
      forth above, or to abide by the conditions set forth herein, shall be
      deemed conclusive proof that you failed to exercise reasonable care
      and promptness in examining the items and statements of the
      affected Account and in notifying us of the unauthorized item or
      error. You agree that such items and errors shall therefore be fully
      enforceable against you and you shall have no claim against us for
      same and shall be barred from bringing any action against us that is
      in any way related to the unauthorized items or errors.

The account agreement also required Mr. Borowski to notify Chase of any errors

involving EFTs no later than 60 days after the first statement on which the error

appeared.

      Chase paid the first unauthorized item on October 15, 2008, and the last

unauthorized item October 7, 2009. The checks and EFTs appeared on

statements that were sent to Mr. Borowski's residential address. Nevertheless,

Mr. Borowski took no action to notify Chase about any of these items until August

2010, approximately nine months after Chase paid the last unauthorized item.

That is, Mr. Borowski's attempt to notify Chase of the unauthorized items was

made well after the end of the 30 and 60 day time limits set forth in the account

agreement. Under these circumstances, Mr. Borowski failed to comply with the

notice provisions of the account agreement. The consequences of that failure are

that Mr. Borowski was precluded from bringing any type of suit against Chase

based on those transactions.

      None of Mr. Borowski's arguments alter this conclusion. Mr. Borowski

first argues the trial court's grant of summary judgment was in error because the

grant of summary judgment required the trial court to make the factual inference




                                         6
that Chase exercised ordinary care. This argument is without merit because it

ignores the effect the Uniform Commercial Code ("UCC") has on this agreement.

          The relevant provision of Missouri's UCC is Section 400.4-406(f)4 which

provides in pertinent part that:

          Without regard to care or lack of care of either the customer or the
          bank, a customer who does not within one year after the statement
          or items are made available to the customer (subsection (a))
          discover and report the customer's unauthorized signature on or
          any alteration on the item is precluded from asserting against the
          bank the unauthorized signature or alteration.

§ 400.4-406(f) (emphasis added); see also § 400.4A-505. This statute

"evidence[s] a public policy in favor of imposing on customers the duty of prompt

examination of their bank statements and the notification of banks of forgeries

and alterations and in favor of reasonable time limitations on the responsibility

of banks for payment of forged or altered items." Knight Comms., Inc. v.

Boatmen's Nat. Bank of St. Louis, 805 S.W.2d 199, 202 (Mo. App. E.D.

1991) (internal citation omitted). The provision creates an absolute limitation

which "is not merely a statute of limitations, but a rule of substantive law barring

absolutely a customer's untimely asserted right to make a claim against the

bank." Id. (internal citation omitted). Moreover, the parties may vary this

provision by agreement so long as the standards adopted in that agreement "are

not manifestly unreasonable." See § 400.4-103(a); § 400.4A-501(a). Mr.

Borowski does not claim that the contractual time limits of 30 and 60 days for

giving notice of unauthorized transactions constitute a manifestly unreasonable

modification of the one-year time limit contained in Section 400.4-406(f), and


4   All statutory references are to RSMo (2000).

                                                   7
the trial court did not need to evaluate the issue of whether Chase acted with

ordinary care because the provisions of Section 400.4-406(f) made ordinary care

irrelevant to the analysis of the issue of Chase's liability in this case.

       Mr. Borowski next argues that the 2009 signature cards created a new

account with Mr. Padgett so Mr. Borowski was no longer bound by the account

agreement. In support, he relies on Kennedy, 855 S.W.2d 520, for the

proposition that "a change in title is tantamount to terminating the account and

replacing it with a new one." Id. at 523. This reliance is misplaced because the

facts in that case were different. In Kennedy, the altered signature card

removed an owner's name from the account and replaced it with another name.

Id. Here, in contrast, Mr. Borowski's name was never removed from the title of

the account. Moreover, Chase continued sending statements to Mr. Borowski.

Mr. Borowski still owned the funds deposited in the bank after the completion of

the 2009 signature cards, so he was still a customer of the bank, subject to the

terms of the account agreement.

       Third, Mr. Borowski argues the trial court erred in finding Chase actually

sent the statements because Chase did not provide evidence that it sent the items.

This argument is without merit. Chase supported its assertion that it sent the

statements with an affidavit from a bank employee regarding Chase's usual

practices regarding mailing account statements. Contrary to Mr. Borowski's

vigorous assertions that this evidence is a mere self-serving conclusion, an

affidavit is one of the types of evidence which may be used to support an

assertion of uncontroverted material fact in support of a motion for summary

judgment. See Rule 74.04(c)(1). Mr. Borowski offered no evidence to rebut that

                                            8
proof. While Mr. Borowski attempted to dispute those facts with legal argument,

he did not provide any contrary facts and did not support his denial with a

citation to the discovery, exhibits or affidavits. Those facts are deemed admitted.

See Rule 74.04(c)(2).

       The trial court did not err in determining Chase was entitled to judgment

as a matter of law on the ground that Mr. Borowski failed to notify Chase of the

unauthorized items within the time period provided by the account agreement.

Mr. Borowski's first point is denied.

                        Point Two: Motion to Dismiss

       In his second point, Mr. Borowski claims the trial court erred in

dismissing his claim for negligence in the performance of a contract because

negligence in the performance of a contract is a distinct cause of action from

common law negligence. However, in light of our conclusion with respect to

Point One, Point Two is moot.

       "The doctrine of mootness is triggered when an event occurs that alters the

position of the parties and any judgment would be a hypothetical opinion."

Brock v. Brock, 142 S.W.3d 204, 206 (Mo. App. E.D. 2004). "When an event

occurs that makes a court's decision unnecessary or makes granting any relief by

the court impossible, then the case is rendered moot and generally should be

dismissed." Id.

       Here, the analysis in Point One shows Mr. Borowski failed to notify Chase

of the unauthorized transactions as required under the terms of the account

agreement. Under the terms of the account agreement, that failure bars Mr.

Borowski from bringing any action against Chase on the basis of the

                                         9
unauthorized transactions. Any action would include an action for negligence in

the performance of a contract. Thus, the denial of Point One would render any

opinion with respect to Point Two a hypothetical opinion regarding the nature of

a claim of negligence in the performance of a contract. Point Two is moot.

      Mr. Borowski's second point is denied.

                                   Decision

      The trial court's judgment is affirmed.

MARY W. SHEFFIELD, C.J. – OPINION AUTHOR

JEFFREY W. BATES, P.J. – CONCURS

DON E. BURRELL, J. – CONCURS




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