Zahra Sun v. J.P. Morgan Chase Bank, N.A. ( 2021 )

RENDERED: MAY 14, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-1891-MR
ZAHRA1 SUN APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
v. HONORABLE JOHN R. GRISE, JUDGE
ACTION NO. 18-CI-01751
J.P. MORGAN CHASE BANK, N.A.;
JOSHUA B. CRAWFORD; ALEN
AHMETOVIC, FIDELITY
FINANCIAL;2 WALTER DUKES;3
AND FIRST CITY MONUMENT, B.P.4 APPELLEES
1
This is the spelling used in the body of the notice of appeal (“NOA”); therefore, although
different spellings have been used throughout the proceedings, this is the spelling we choose to
use in our Opinion.
2
Fidelity Financial is identified with Alen Ahmetovic in the body of the NOA but does not
appear in the record prior to the NOA.
3
“Walter Dukes Estate” is also listed in the caption of the NOA, and as having appealed the
orders with the other defendants, but is not listed as an appellee in the body of the NOA.
4
The body of the NOA also listed Citibank N.A. (“Citibank”) as an appellee. However, a
motion panel of our Court dismissed Citibank as a party-appellee on July 8, 2020, as it was
voluntarily dismissed from the underlying action on October 11, 2019.
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, CHIEF JUDGE; DIXON AND MAZE, JUDGES.
DIXON, JUDGE: Zahra Sun appeals from the order granting J.P. Morgan Chase
Bank, N.A., (“Chase”) and Joshua B. Crawford judgment on the pleadings,
dismissing Sun’s claims against them, as well as from the order denying Sun’s
motion to set aside, alter, or vacate the judgment, entered by the Warren Circuit
Court on October 18, 2019, and December 4, 2019, respectively. Following a
careful review of the record, briefs, and law, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Sun was born and raised in Cambodia with no formal education. In
1991, when she was approximately twenty years old, Sun moved to the United
States and began working in factories to support herself and her children. Sun has
been a U.S. citizen for over ten years now but has difficulty reading and
communicating in English.
Sun was acquainted with a man by the name of Walter Dukes who
was employed by the U.S. Army.5 She was contacted on numerous occasions by a
man with the same name who purported to be her acquaintance and asked her to
5
It is unclear where Dukes resided as the complaint identifies “Walker [sic] Dukes Estate U.S.
Army, Iran” and Sun’s affidavit later states Dukes was in Iraq.
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send him $10,000 with promises to repay. On January 9, January 16, and February
20, 2018, Sun went to her local Chase Bank and requested transfers of $10,000 to
Walter Dukes.6 The first two transfers to Dukes were performed by Chase
employee Joshua B. Crawford, and the third transfer by then-Chase employee Alen
Ahmetovic.7 The funds were transferred from Sun’s Chase checking account to
Citibank and then to Walter Dukes’ account at First City Monument B.P. (“First
City”) in Nigeria.
After the final transfer to Dukes, Sun became aware that her funds
were sent to Dukes’ account in Nigeria rather than her acquaintance in either Iran
or Iraq. She also learned her acquaintance had passed away. Sun requested Chase
refund her account, but Chase refused. Sun also contacted the police and informed
them of the scheme perpetrated against her, but it appears they have not informed
her of any further action taken on their part concerning this matter.
On December 28, 2018, Sun filed the instant action against Chase,
Crawford, Ahmetovic, Walter Dukes of Nigeria, Citibank, First City, and the
“Walker [sic] Dukes Estate,” generally alleging fraud on the part of all defendants.
On August 16, 2019, Chase and Crawford moved the trial court for a judgment on
6
Sun claims she requested a $10,000 transfer to Dukes on January 2, 2018, but only produced
documentation of a $10,000 transfer from her checking to savings account.
7
Ahmetovic no longer works for Chase, but from his initial answer appears to still be employed
in the banking industry as a branch manager.
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the pleadings, in support of which they filed a ten-page memorandum of law with
132 pages of case law as exhibits. On September 12, 2019, Citibank moved the
trial court for summary judgment. Sun responded to the motion for summary
judgment requesting the hearing date be rescheduled. Counsel agreed to remand,
reschedule, and re-notice these three motions for October 14, 2019.8
On October 11, 2019, the trial court entered an agreed order
dismissing Citibank with prejudice, which was seen, agreed to, and signed by
Sun’s counsel. On October 14, 2019, the trial court held a hearing on Chase’s and
Crawford’s motion for judgment on the pleadings as agreed by counsel. Sun’s
counsel failed to appear or object to this motion. Subsequently, the trial court
granted Chase’s and Crawford’s motion via order entered on October 18, 2019.
On October 28, 2019, Sun moved the trial court to set aside, alter, or
vacate its October 18, 2019, order claiming neither she nor her counsel received
Chase’s and Crawford’s motion or memorandum with 132 pages of attachments
and that counsel thought the reference to Chase’s and Crawford’s motion in the
agreement remanding the hearing of same was in error. Counsel further claimed
she was experiencing an optical nerve occlusion which contributed to her mistake.
8
The three motions specifically listed in the joint remand pleading filed with the court were: (1)
Chase’s and Crawford’s motion for judgment on the pleadings, (2) Citibank’s motion for
summary judgment, (3) and Sun’s motion to reschedule the hearing date. An email has been
produced from Sun’s counsel’s email account agreeing to this remand; however, counsel has
denied sending same in an affidavit and subsequent pleadings. The trial court aptly found the
affidavit and pleadings incredible.
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On December 4, 2019, the trial court entered an order denying Sun’s motion to set
aside, alter, or vacate the October 18, 2019, order granting Chase’s and Crawford’s
motion for judgment on the pleadings. This appeal followed.9
STANDARD OF REVIEW
The standard of review of a ruling on a motion for judgment on the
pleadings is well established:
Kentucky’s “Civil Rule [(“CR”)] 12.03 provides that
any party to a lawsuit may move for a judgment on the
pleadings.” City of Pioneer Village v. Bullitt Cty., 104
S.W.3d 757, 759 (Ky. 2003). A judgment on the
pleadings “should be granted if it appears beyond doubt
that the nonmoving party cannot prove any set of facts
that would entitle him/her to relief.” Id. “[T]he circuit
court is not required to make any factual determination;
rather, the question is purely a matter of law.” James v.
Wilson, 95 S.W.3d 875, 883-84 (Ky. App. 2002).
Further, CR 12.03 may be treated as a motion for
summary judgment. Schultz v. Gen. Elec. Healthcare
Fin. Servs., Inc., 360 S.W.3d 171, 177 (Ky. 2012). We
review a judgment on the pleadings de novo. Id.Scott v. Forcht Bank, NA, 521 S.W.3d 591, 594 (Ky. App. 2017).
9
After the notice of appeal was filed, Ahmetovic answered the complaint, filed an amended
answer, moved for judgment on the pleadings, and filed a memorandum of law in support of his
motion. On June 19, 2020, the trial court entered an order holding the open motions in abeyance
pending resolution of this appeal.
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ANALYSIS
The crux of this appeal is whether the trial court correctly granted
Chase’s and Crawford’s motion for judgment on the pleadings. We first point out
that Sun failed to respond to this motion, appear for the hearing on the motion, or
otherwise present an argument against or objection to the motion until after the
trial court entered its order granting same. Sun then challenged the motion via CR
59.05. In its order denying Sun’s motion, the trial court noted that Sun failed to
meet any of the grounds to warrant reversal of the judgment, citing Gullion v.
Gullion, 163 S.W.3d 888, 893 (Ky. 2005). In Guillion, the Court held there are:
four basic grounds upon which a Rule 59(e) motion may
be granted. First, the movant may demonstrate that the
motion is necessary to correct manifest errors of law or
fact upon which the judgment is based. Second, the
motion may be granted so that the moving party may
present newly discovered or previously unavailable
evidence. Third, the motion will be granted if necessary
to prevent manifest injustice. Serious misconduct of
counsel may justify relief under this theory. Fourth, a
Rule 59(e) motion may be justified by an intervening
change in controlling law.
Id. For the reasons made clear in this Opinion, we agree with the trial court that
Sun’s motion for relief from the judgment was properly denied.
In United Parcel Service Company v. Rickert, 996 S.W.2d 464, 468
(Ky. 1999), Kentucky’s highest court set forth the elements of a fraud claim:
the party claiming harm must establish six elements of
fraud by clear and convincing evidence as follows: a)
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material representation b) which is false c) known to be
false or made recklessly d) made with inducement to be
acted upon e) acted in reliance thereon and f) causing
injury. Wahba v. Don Corlett Motors, Inc., [573 S.W.2d
357, 359 (Ky. App. 1978)].
It is enough to plead the time, place, and substance of the false representations, the
facts misrepresented, and the identification of what was obtained by the fraud.
Scott v. Farmers State Bank, 410 S.W.2d 717 (Ky. 1966). This “does not require
textbook pleading of all elements of fraud but requires merely that plaintiff set
forth facts with sufficient particularity to apprise defendant fairly of charges
against him.” Id. at 722 (citations omitted).
Yet, review of Sun’s complaint—which she has neither amended nor
moved to amend—reveals fatal flaws in her failure to specifically plead her fraud
claims against Chase and its employees, including Crawford. CR 9.02 provides,
“In all averments of fraud or mistake, the circumstances constituting fraud or
mistake shall be stated with particularity. Malice, intent, knowledge, and other
condition of mind of a person may be averred generally.” Sun’s complaint clearly
fails to meet the heightened pleading standard for fraud required by CR 9.02.
Sun’s complaint appears to allege, but does not identify, an “affirmative
misrepresentation” by Chase through its employees, including Crawford. Absent
this first element, it is impossible to establish the other elements from which a
cause of action for fraud might arise.
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Nevertheless, in her motion to set aside, alter, or vacate, Sun
presented her fraud claim against Chase and Crawford as:
Defendant Chase and its agents did not help her in any
reasonable way, did not explain the transfer process to
her, and that she would probably not get her money back
from the alleged “Walter Dukes,” and how corrupt the
Nigeria [sic] man possibly was.
The foregoing is essentially an allegation of fraud by omission. But “mere silence
does not constitute fraud where it relates to facts open to common observation or
discoverable by the exercise of ordinary diligence, or where means of information
are as accessible to one party as to the other.” Bryant v. Troutman, 287 S.W.2d
918, 920-21 (Ky. 1956) (citation omitted).
In Hays v. Meyers, 107 S.W. 287, 288 (Ky. 1908) (citation omitted),
the Court held:
It is a general rule that the mere failure of a party to a
contract to disclose material facts—that is, mere silence
without more—does not amount to fraud if no inquiry is
made by the other party. Something must be said or done
to conceal the truth, or there must be a partial or
fragmentary statement, or else the relation of the parties
or the nature of the subject-matter of the contract must be
such as to impose a legal of [sic] equitable duty to
disclose all material facts.
Here, as previously noted, Sun has not identified an affirmative misrepresentation
by Chase or its employees, and she does not allege they told her a half-truth or
otherwise partially disclosed material facts. The Chase employees were under no
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duty to speak to or warn Sun concerning these transactions. Although one may
argue for a good-faith modification, extension, or reversal of existing law, the law
in this area is well-established. Accordingly, the trial court properly dismissed
Sun’s complaint against Chase and Crawford for her failure to specifically plead
fraud claims against them.
Even so, Sun contends the failure of her and/or her counsel to receive
notice of Chase’s and Crawford’s motion for judgment on the pleadings was
sufficient ground to grant her motion to set aside, alter, or vacate the trial court’s
order. However, as the trial court pointed out in its order, this contention is belied
by the record, which contains printed emails from Sun’s counsel agreeing to
remand said motion.
Further, “[t]here is always a presumption that a communication that
was properly stamped, addressed and deposited in the mail was received by the
addressee. Once the fact of address, stamp and deposit is proven, the burden shifts
to the addressee to prove that he has never received the letter.” Haven Point
Enters., Inc. v. United Kentucky Bank, Inc., 690 S.W.2d 393, 395 (Ky. 1985)
(internal citation omitted). The motion for judgment on the pleadings contains a
certificate of service, certifying that on August 19, 2019, a copy of the motion was
served via U.S. mail on Sun’s counsel. Although the memorandum of law and its
exhibits do not contain a similar certificate of service, Sun’s counsel should have
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been apprised of their filing as the motion clearly states that a memorandum of law
was tendered with it.
Additionally, Sun’s counsel argues the judgment on the pleadings
should be set aside because she has an optical nerve occlusion which caused her to
inaccurately read the emails in which she agreed to the joint remand. In Kentucky,
it is a rule that “a party who can read and has an opportunity to read the contract
which he signs must stand by the words of his contract, unless he is misled as to
the nature of the writing which he signs, or his signature is obtained by fraud.”
Clark v. Brewer, 329 S.W.2d 384, 386 (Ky. 1959) (citation omitted). Sun’s
counsel did not claim to be misled by the email, nor was the email from her
account fraudulently procured by an opposing party. Rather, Sun’s counsel claims
the email was wrongfully sent by her own secretary. Attorneys have a duty to
supervise those who work for them; thus, Sun’s counsel is responsible for her
secretary’s actions. As such, Sun and her counsel are bound by their agreement.
In the event she was physically unable to read the documents, she still had a duty
to have them read to her. Accordingly, the trial court did not err in refusing to set
aside the agreement of the parties to reschedule the hearing on the motions or its
judgment.10
10
Because we affirm the trial court on these grounds, we need not address the parties’
arguments that Sun’s claims are preempted by the Uniform Commercial Code.
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CONCLUSION
Therefore, and for the foregoing reasons, the orders of the Warren
Circuit Court are AFFIRMED.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES J.P.
MORGAN CHASE BANK, N.A.
Nancy Oliver Roberts AND JOSHUA B. CRAWFORD:
Bowling Green, Kentucky
Gregory S. Berman
Jordan M. White
Thomas E. Travis
Louisville, Kentucky
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