PITTMAN, Judge.
Absolute Drug Detection Services, Inc. ("ADDS"), and Chauncey Thuss, Jr. ("Thuss"), the owner of ADDS, appeal from a summary judgment in favor of Regions Bank ("Regions") and Nisa Jordan ("Jordan"), an employee of Regions.
This action arises out of allegedly unauthorized transactions that occurred involving bank accounts ADDS had with Regions. ADDS and Thuss filed the action in May 2009, naming as defendants Regions, Jordan, Eric Reed ("Reed"), Adrienne Reed d/b/a Jeffco Chem-Dry, Sprint Communications, and Eric Reed d/b/a Analytical Testing Group. Against Regions and Jordan, ADDS and Thuss asserted claims of negligence, "willfulness," and wantonness; additionally, they stated a breach-of-contract claim against Regions only. ADDS and Thuss alleged that Regions and Jordan had improperly permitted Reed to execute transactions that had not been authorized
In August 2011, all defendants filed summary-judgment motions. ADDS and Thuss responded in opposition to those motions, and a hearing on the motions was held on October 4, 2011. On October 12, 2011, the trial court entered a partial summary judgment in favor of Regions and Jordan, but it denied the motions of the other defendants. Regions and Jordan thereafter filed motions for the entry of a Rule 54(b), Ala. R. Civ. P., certification of the partial summary judgment as a final judgment as to the claims asserted against them, which the trial court granted on November 14, 2011. ADDS and Thuss timely appealed; the appeal was transferred by the supreme court to this court pursuant to Ala.Code 1975, § 12-2-7(6).
The record reveals the following undisputed facts. ADDS is a corporation located in Birmingham that provides drug testing and related services for its clients. Thuss is the owner of ADDS; at all relevant times, Reed was the business manager for ADDS. ADDS had two bank accounts with Regions: a checking account and a money-market account. Jordan was the branch operations manager at the Regions Southside branch location, where ADDS conducted most of its transactions.
The deposit agreement entered into by Thuss, on behalf of ADDS, and Regions provided:
(Emphasis added.)
The deposit agreement also imposed the burden of reporting unauthorized fund-transfer payments within 30 calendar days of the mailing of monthly statements, which listed the transfers of funds, including wire transfers; the agreement stated that if ADDS failed to report any unauthorized transactions or other discrepancies, the transfers were deemed authorized after the 30 days had elapsed.
Reed held all bookkeeping responsibilities at ADDS and did not answer or report to a superior; thus, no one checked Reed's work. One of those responsibilities was to review ADDS's monthly bank statements and to check, and then report, unauthorized transactions and discrepancies. Additionally, Thuss had entrusted Reed with his signature stamp for Reed to use when necessary. The deposit agreement also addressed the use of a signature stamp:
Thuss was the only authorized person whose name was listed as a signatory for ADDS's bank accounts. Reed was never authorized as a signatory on the accounts, never directed by Thuss to be so listed, and, with the exception of a few specific occasions, never authorized to withdraw funds from either of ADDS's accounts. The record establishes that a person must be listed as a signatory on an account to be permitted to withdraw money from that account. Further, Regions required that, in order to add a new signatory on an account, the existing signatory must authorize the addition of the new signatory either by coming to the bank in person or by having the new signatory sign a signatory card in the presence of a notary. The record reveals that Reed was added as a new signatory on the ADDS accounts on September 12, 2008, but that the addition of Reed's name as a signatory on the accounts was not authorized by Thuss; Thuss did not go to the bank on that date and did not provide a notarized signature to authorize Reed's addition; though the stamp of Thuss's signature does appear from the record to have been affixed on one of the pertinent documents, the signature was not notarized.
In September 2008, the record reveals, Thuss became concerned about the financial situation of ADDS when some of the laboratories used by ADDS refused to release test results because those laboratories had not been paid by ADDS for previous work performed. In a letter dated December 22, 2008, to Regions, Thuss stated:
The second time Thuss informed Regions of unauthorized activity on the ADDS account statements was in May 2010 in a list of allegedly unauthorized transactions involving the ADDS checking account. That was the first time ADDS and Thuss raised any concern regarding transactions involving the ADDS checking account. Lists that were compiled and disclosed by ADDS and Thuss during discovery reflected purported unauthorized
The trial court, in its judgment, stated that the claims asserted by ADDS and Thuss against Regions and Jordan were barred by Ala.Code 1975, § 7-4-406(d) and (f) and § 7-4A-505, as well as by the deposit agreement entered into by Regions and ADDS.
It is well settled that an appellate court reviews a summary judgment de novo, using the same standard applied by the trial court. Neal v. Sem Ray, Inc., 68 So.3d 194, 196 (Ala.Civ.App.2011). Under Rule 56(c), Ala. R. Civ. P., we must review the evidence to determine whether the movant established that no genuine issue of material fact existed, thereby entitling the movant to a judgment as a matter of law. If the movant makes that showing, the nonmovant thereafter bears the burden to adduce "substantial evidence" to rebut the movant's showing that there is no genuine issue of material fact. Bass v. SouthTrust Bank of Baldwin Cnty., 538 So.2d 794, 797-98 (Ala.1989). "[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). We apply the de novo standard of review to each issue raised in the present appeal.
This case turns on the applicability of the statutory bars asserted by Regions and Jordan, which in turn depend on the timing of the reports made by ADDS and Thuss to Regions of unauthorized activity on ADDS's accounts. Under Ala.Code 1975, § 7-4-406(f), a customer has a strict 180-day period within which to report suspected unauthorized transactions; the deposit agreement, however, expressly shortens the period to 30 calendar days.
ADDS and Thuss, in their brief to this court, argue in detail that the statutory bars of §§ 7-4-406(d) and 7-4A-505 are inapplicable, citing evidence that Jordan acted in bad faith because she processed the transactions despite knowing that only Thuss was an authorized signatory on the accounts.
The terms of the deposit agreement clearly reflect that Regions presumes that when another person possesses the signature stamp of a customer, that person possesses the stamp as an agent of the customer. It follows that the strict language of the provision in the deposit agreement limiting Regions' liability based on the unauthorized use of a signature stamp is intended to emphasize the authority vested in a person who possesses the stamp and, in turn, the diligence expected of a customer to guard against misuse of the stamp. The terms implicitly but unquestionably iterate the need to monitor the use of a signature stamp when a customer has entrusted it to be used at the discretion of an agent of the customer. The deposit agreement requires precisely the level of diligence that would have protected ADDS and Regions against the scheme allegedly implemented by Reed in this case. The requirement that unauthorized transactions be reported at the first opportunity and the presumption placed upon the use of a signature stamp were included in the deposit agreement as safeguards to protect Regions and ADDS against loss.
ADDS and Thuss argue that § 7-4-406(d) is the statutory bar that, under different circumstances, would be applicable here, but, they assert, Jordan acted in bad faith by allowing Reed to conduct transactions and, therefore, that they are not be barred from asserting claims against Regions and Jordan. Aside from
This case comes down to a question of deadlines. After receiving the monthly account statement for each account, ADDS was required to report any unauthorized transactions listed in that account statement within 30 calendar days pursuant to the terms agreed upon in the deposit agreement and without regard to Regions' exercise of reasonable care, or failure to exercise reasonable care, as expressed in § 7-4-406(f). ADDS and Thuss reported unauthorized activity on two occasions: in December 2008 and in May 2010. As to the claims based on the activity reported in May 2010, under Ala.Code 1975, § 7-4-406(f), those claims were barred because the activity was made known to ADDS and Thuss in account statements in 2007 and 2008. To the extent that the activity reported at that time included wire transfers, those claims were barred under Ala. Code 1975, § 7-4A-505.
Next, we address the validity of claims based on the unauthorized-activity report in Thuss's letter to Regions in December 2008. In that letter, Thuss mentioned three transactions but only raised concerns as to one of those transactions: a bank debit that had taken place in September 2008. However, those transactions were not reported within the 30-day reporting period and, thus, were not timely asserted. Thuss fell short of fulfilling his responsibilities as the signatory on ADDS's accounts, and his failure to exercise the diligence required by the deposit agreement effectively disabled the safeguards contemplated by the terms of the agreement and, instead, only helped perpetuate Reed's alleged wrongdoing; had Thuss complied with the terms of the deposit agreement, any loss resulting from Reed's alleged wrongdoing would have been mitigated.
AFFIRMED.
THOMPSON, P.J., and BRYAN and THOMAS, JJ., concur.
MOORE, J., concurs in the result, without writing.