CHAMBERLIN, JUSTICE, FOR THE COURT:
¶ 1. The instant case addresses whether the claims of the Appellant, Marilyn Newsome, survive summary judgment against Appellees, Peoples Bank and Chris Dunn. The claims address the issuance of cashiers checks by Peoples Bank and Chris Dunn without the signature or approval of the conservatorship account holder, Marilyn Newsome. For the reasons expounded upon below on the direct appeal, the Court affirms the judgment of the trial court in part and reverses and remands in part. On the cross appeal, under different reasoning, the Court affirms the judgment of the trial court.
STATEMENT OF FACTS
¶ 2. On February 9, 2015, Marilyn Newsome filed suit against Chancellor David Shoemake, former Chancellor Joe Dale Walker, Keely McNulty, Peoples Bank (the Bank), and Chris Dunn (Dunn). The instant appeal focuses only on the liability of the Bank and Dunn, if any. Therefore, the alleged liability and/or wrongdoing of the additional parties is not at issue and is neither addressed in the facts provided below nor in the analysis.
¶ 3. In 2010, Charles Merkel of Merkel & Cocke hired Keely McNulty (McNulty), an attorney, to set up the conservatorship for his client, Victoria Newsome. Victoria Newsome had settled a medical malpractice case, but she was unable to manage her affairs. The trial court appointed Marilyn Newsome (Newsome), Victoria Newsomes mother, as the conservator for Victoria Newsome. The trial court then denied the request to purchase a home for Victoria Newsome, and instead, the trial court ordered that a house be built for her. In the interim, the trial court ordered a mobile home to be purchased.
¶ 4. With the help of Dunn, a Bank employee, Newsome opened a checking account for the conservatorship with the Bank. When Newsome opened the conservatorship account, she signed a Deposit Agreement. According to the Deposit Agreement, Newsome was the sole authorized signor on the account. Newsome testified that she did not have any discussions with the Bank about who would be authorized to sign on the account. The Deposit Agreement also provided that Newsome had thirty days to review her statements for errors or unauthorized activity.
¶ 5. With the conservatorship account opened, McNulty began coordinating the process of building the house, which included hiring a contractor, paying subcontractors, and generally, supervising the building of the residence. In order to pay the subcontractors and herself, McNulty drafted court orders that provided for the release of funds from the conservatorship account. After the trial court signed the orders, McNulty then sent or delivered the court orders to the Bank for release of the funds. The court orders did not provide any guidance on how disbursements should occur. Specifically, the court orders did not provide for the issuance of cashiers checks to disburse the money. In her affidavit, McNulty testified that she instructed the Bank to issue cashiers checks for the money.
¶ 6. To issue the cashiers checks, the Bank withdrew money from Newsomes conservatorship account, placed it in the Banks account and with a bank employees signature, issued official Bank checks to McNulty and various subcontractors. Usually, the checks were signed by Dunn. Newsomes signature did not appear on any of the cashiers checks. The withdrawals were shown on Newsomes statements as Miscellaneous Debit. No further information was provided on the statements, and if more than one cashiers check was issued at one time, the Miscellaneous Debit on the statement would lump the entire sum of a number of checks together.
¶ 7. The process continued from March 2011 to October 2011, as the residence was built. Through the process, over $400,000 was transferred out of the conservatorship account.
¶ 8. Dunn testified that while the residence was being built and the cashiers checks were being issued, Newsome frequently visited the Bank, and sometimes she would bring Victoria Newsome to visit as well. Dunn claims that Newsome never mentioned that she was not receiving her monthly statement and that she never communicated that McNulty did not have the right to direct payment orders. On the other hand, although she cannot remember the date, Newsome claims that she asked Dunn about why she was not receiving her monthly statement and about the account. She states that Dunn only told her to consult McNulty and the trial court.
¶ 9. On February 9, 2015, Newsome filed suit against the Bank and Dunn alleging common-law claims: conspiracy, fraud, breach of contract, negligence, breach of the duty of good faith and fair dealing, negligence per se, gross negligence, and intentional infliction of emotional distress. Further, falling under the Uniform Commercial Code (UCC), Newsome alleged that the Bank and Dunn were liable for failing to require Marilyns signature on any of the checks negotiated on the conservatorship account.
¶ 10. The parties filed competing motions for summary judgment. The Bank and Dunn argued that Newsomes claims were barred by the statute of repose in Mississippi Code Section 75-4A-505 and that the Bank and Dunn were not at fault because McNulty had the authority to act on Newsomes behalf. Newsome argued that she was entitled to summary judgement as to liability and actual damages. The trial court denied Newsomes motion for summary judgment on liability and actual damages, and it denied the Bank and Dunns motion for summary judgment on the statute of repose issue. However, the trial court granted the Bank and Dunns motion for summary judgment as to McNultys authority, dismissing the Bank and Dunn. Newsome appealed the dismissal of the Bank and Dunn, and the Bank and Dunn cross-appealed the statute of repose issue.
STATEMENT OF ISSUES
¶ 11. The Court distinguishes between the direct appeal and the cross-appeal. Further, for clarity, the Court addresses the cross-appeal first.
CROSS-APPEAL
Whether the claims are barred by the one-year statute of repose.
DIRECT APPEAL
(1) Whether Peoples Bank and Chris Dunn are entitled to summary judgment due to Keely McNultys actual, implied, and/or apparent authority.
(2) Whether the duty to review statements contained in the Deposit Agreement warrants summary judgment.
(3) Whether the Uniform Commercial Code displaces Marilyn Newsomes common-law claims.
(4) Whether Peoples Bank risked contempt of court if it refused to comply with the trial courts orders.
(5) Whether Chris Dunn is entitled to summary judgment as to claims against him in his individual capacity.
STANDARD OF REVIEW
¶ 12. The Court reviews a motion for summary judgment de novo. Kinney v. S. Miss. Planning & Dev. Dist., Inc. , 202 So.3d 187, 192 (Miss. 2016). The evidence is viewed in the light most favorable to the party opposing the motion. The moving party has the burden of demonstrating no genuine issue of material fact exists. Id. Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. (quoting Hosemann v. Harris , 163 So.3d 263, 267 (Miss. 2015) ).
CROSS-APPEAL ANALYSIS
Whether the claims are barred by the one-year statute of repose.
¶ 13. The Bank and Dunn argue that the statute of repose, codified in Chapter 4A of the UCC, applies and bars Newsomes claims. See Miss. Code Ann. § 75-4A-505 (Rev. 2016). Further, the Bank and Dunn maintain that Newsome is barred from arguing that the cashiers checks were not fund transfers because she failed to make that argument below. On the other hand, Newsome claims that Article 4A only applies to wire transfers, and here, the Bank and Dunn improperly commingled conservatorship funds with the Banks funds. Although not binding under the de novo standard of review, the trial court denied summary judgment on the instant issue, finding a question of fact.
¶ 14. Before delving into the merits of the statute-of-repose claim, the Court considers the Bank and Dunns argument that the issue is barred. As argued by the Bank and Dunn, the Court need not consider an issue raised for the first time on appeal. Flagstar Bank, FSB v. Danos , 46 So.3d 298, 311 (Miss. 2010). However, here, Newsome clearly argued before the trial court that the statute of repose does not apply. Specifically, during the hearing on the competing motions for summary judgment, Newsome argued that because the Bank itself signed the cashiers checks, the statute of repose does not apply. Thus, the issue was considered and is not barred. Accordingly, the Court proceeds to the merits of the cross-appeal.
¶ 15. The statute of repose appears in Chapter 4A of the UCC. See Miss. Code Ann. § 75-4A-505 (Rev. 2016). The Courts role is not to decide what a statute should provide, but to determine what it does provide. Rankin Cty. Bd. of Supervisors v. Lakeland Income Props., LLC , 241 So.3d 1279, 1283 (Miss. 2018) (quoting Lawson v. Honeywell Intl, Inc. , 75 So.3d 1024, 1027 (Miss. 2011) ). The Court considers the words and phrases in the statutes according to their common and ordinary acceptation and meaning; but technical words and phrases according to their technical meaning." Miss. Code Ann. § 1-3-65 (Rev. 2014).
¶ 16. Chapter 4A applies to funds transfers defined in Section 75-4A-104. Miss. Code Ann. § 75-4A-102 (Rev. 2016). Section 75-4A-104 defines funds transfers as:
[T]he series of transactions, beginning with the originators payment order, made for the purpose of making payment to the beneficiary of the order. The term includes any payment order issued by the originators bank or an intermediary bank intended to carry out the originators payment order. A funds transfer is completed by acceptance by the beneficiarys bank of a payment order for the benefit of the beneficiary of the originators payment order.
Miss. Code Ann. § 75-4A-104(a) (Rev. 2016).
¶ 17. An orginator is the sender of the first payment order in a funds transfer. Miss. Code Ann. § 75-4A-104(c) (Rev. 2016). The orginator can be a bank, but it need not be a bank. Miss. Code Ann. § 75-4A-104(d) (Rev. 2016). However, if the originator is not a bank, the originators bank is the bank that receives the payment order from the originator. Id. A payment order is an instruction of a sender to a receiving bank, transmitted orally, electronically, or in writing to pay, or to cause another bank to pay a fixed and determinable amount of money to a beneficiary .... Miss. Code Ann. § 75-4A-103 (a)(1) (Rev. 2016). In order to be considered a payment order, the instruction must stand up to three conditions: (1) it must not state a condition to payment ... other than time of payment, (2) [t]he receiving bank is to be reimbursed by debiting an account of, or otherwise receiving payment from, the sender, (3) it must be transmitted by the sender directly to the receiving bank or to an agent, funds-transfer system, or communication system for transmittal to the receiving bank. Id.
¶ 18. The definition of a funds transfer contemplates a bank-to-bank transfer. The definition of a funds transfer states: A funds transfer is completed by acceptance by the beneficiarys bank of a payment order for the benefit of the beneficiary of the originators payment order. Miss. Code Ann. § 75-4A-104(a). Further, a beneficiary is defined as the person to be paid by the beneficiarys bank . Miss. Code Ann. § 75-4A-103(a)(2) (Rev. 2016) (emphasis added).
¶ 19. Here, the transactions in question are the Banks and Dunns removal of funds from the conservatorship account to an account for the Bank and the issuance of cashiers checks to beneficiaries, which were McNulty and various subcontractors. The cashiers checks were signed by bank employees. The Bank and Dunn never dealt with a beneficiary bank, as the checks were issued directly to beneficiaries. Therefore, the instant facts do not fit under the definition of a funds transfer. Further, the comment to Section 75-4A-104 offers guidance on whether a check is considered a funds transfer.
¶ 20. The comment states that checks usually are not funds transfers because the instruction is delivered by the debtor to the creditor who then presents it to the bank. Miss. Code Ann. § 75-4A-104 cmt. 5 (West, Westlaw through 2018 Legis. Sess.). The comment, however, goes on to give an exception that is extremely helpful:
Assume that Originator instructs Originators Bank to pay $10,000 to the account of Beneficiary in Beneficiarys Bank.... Originators Bank may execute Originators order by issuing a tellers check payable to Beneficiarys Bank for $10,000 along with instructions to credit Beneficiarys account in that amount. The instruction to Beneficiarys Bank to credit Beneficiarys account is a payment order . The check is the means by which Originators Bank pays its obligation as sender of the payment order.
Miss. Code Ann. § 75-4A-104 cmt. 5 (West, Westlaw through 2018 Legis. Sess.) (emphasis added). Here, as stated above, the cashiers checks at issue were issued to the beneficiaries-McNulty and various subcontractors-in the court orders, not to a beneficiary bank. Therefore, no payment order existed, and the instant limited exception does not apply. ¶ 21. Thus, for the reasons detailed above, the cashiers checks at issue do not qualify as payment orders, and without qualifying as a payment order, they are also not funds transfers as contemplated under Chapter 4A. Therefore, Chapter 4As statute of repose does not apply, and we need not address the trial courts finding. The trial courts denial of summary judgment for the Bank and Dunn on this issue is affirmed, although on other grounds. Further, as we have reached this affirmance as a matter of law and not fact, the instant issue need not be submitted to the jury.
DIRECT APPEAL ANALYSIS
(1) Whether Peoples Bank and Chris Dunn are entitled to summary judgment due to Keely McNultys actual, implied, and/or apparent authority.
¶ 22. The Bank and Dunn argue that McNulty possessed actual, implied, and/or apparent authority. Newsome responds, arguing that McNulty never possessed actual, implied, or apparent authority.
A. Actual Authority
¶ 23. The Bank and Dunn argue that McNulty had actual authority to manage and direct payment orders because Newsomes conservatorship account was a court-administered and court-supervised account requiring court orders and directions from the judge. Further, the Bank and Dunn point out that Newsome knew McNulty was managing the account. On the other hand, Newsome argues that no record evidence exists of written or oral terms by which Newsome had granted any authority to McNulty.
¶ 24. Actual authority, also termed express or direct authority, is the authority actually conferred by the principal. See McFarland v. Entergy Miss., Inc. , 919 So.2d 894, 902 (Miss. 2005). The Court has stated: An express agent is one who is in fact authorized by the principal to act on their behalf. Id. (internal quotation omitted). Although both parties cite the wrong cases for the point that actual authority is determined from the standpoint of the agent, the parties are correct in their assertion. The Restatement states that actual authority arises as reasonably understood by the agent. Restatement (Third) of Agency § 3.01 (2006). The Restatement further provides that a manifestation by the principal must occur. Id. A manifestation is defined as expressive conduct. Restatement (Third) Of Agency § 3.01 cmt. b (2006). Specifically, [a] principals unexpressed willingness that another act as agent does not create actual authority. Id.
¶ 25. Newsome denies that she gave McNulty any authority. Upon review of the record, we agree, and we find no expressive conduct by Newsome. If anything, unexpressed willingness exists, which is not enough to overcome summary judgment. Notably, the Bank and Dunn, as stated above, base their actual-authority argument on the court-administered status of the account and on Newsomes alleged knowledge. However, without showing expressive conduct by Newsome, the law simply does not contemplate these two facts as sufficient to establish actual authority. Thus, the instant argument is without merit.
B. Implied Authority
¶ 26. All the parties cite Forest Hill Nursing Center, Inc. v. McFarlan , 995 So.2d 775 (Miss. Ct. App. 2008), in support of their implied-authority arguments. Upon review, we find some contradiction in Mississippi law about whether implied authority is interchangeable with apparent authority.
¶ 27. In Forest Hill , the Court of Appeals relied on Capital Associates Inc. v. Sally Southland, Inc. , 529 So.2d 640 (Miss. 1988), to state that [i]mplied agency requires that the principal give the agent actual authorization to perform acts which reasonably lead third parties to believe that an agency relationship exists. Forest Hill , 995 So.2d at 781. Forest Hill also addressed apparent authority. Id.
¶ 28. On the other hand, Capital Associates addressed implied authority but did not address apparent authority. Capital Assocs. , 529 So.2d at 644. Capital Associates listed only the existence of actual or express and implied authority. Id . In other cases, the Court has stated that an agency relationship can be established through either actual or apparent authority. Barnes, Broom, Dallas & McLeod, PLLC v. Estate of Cappaert , 991 So.2d 1209, 1211 (Miss. 2008) ; see also McPherson v. McLendon , 221 So.2d 75 (Miss. 1969) (only addressing actual and apparent authority). Further, in Comperes Nursing Home, Inc. v. Estate of Farish ex rel. Lewis , 982 So.2d 382 (Miss. 2008), the Court stated that the agreement at issue indicated authority, either express or implied or apparent. Id. at 383. The Court then considered apparent authority, but it did not consider implied authority. Id.
¶ 29. Thus, given the inconsistencies in application of all three types of agency, we look to the definitions of implied authority and apparent authority. Implied agency [or authority] requires that the principal give the agent actual authorization to perform acts which reasonably lead third parties to believe that an agency relationship exists. Forest Hill , 995 So.2d at 781 (emphasis added). Apparent authority, as will be explained in more detail below, requires acts or conduct by the principal indicating the agents authority, and it requires reasonable reliance by a third party. See Estate of Cappaert , 991 So.2d at 1212. In sum, implied authority requires actual authorization for the agent to act; whereas, apparent authority looks to the principals acts or conduct for an indication of the agents authority. Thus, although similar, implied authority does differ from apparent authority.
¶ 30. Here, even considering McNultys affidavit and Judge Walkers appointment of McNulty to coordinate building the house, as concluded above, no proof exists in the record illustrating that Newsome exercised expressive conduct creating actual authorization for McNulty to act. See Forest Hill , 995 So.2d at 781. Thus, without even considering the second part of the implied authority definition, implied authority has not been shown, and summary judgment for the Bank and Dunn is not warranted.
C. Apparent Authority
¶ 31. Apparent authority exists when a reasonably prudent person, having knowledge of the nature and the usages of the business involved, would be justified in supposing, based on the character of the duties entrusted to the agent, that the agent has the power he is assumed to have. Eaton v. Porter , 645 So.2d 1323, 1325 (Miss. 1994). Mississippi law imposes a three-prong test for determining if apparent authority exists:
(1) acts or conduct by the principal indicating the agents authority; (2) reasonable reliance by a third party upon those acts or conduct; and (3) detrimental change in position by the third party as a result of such reliance.
Estate of Cappaert , 991 So.2d at 1212 (internal quotation omitted); see also Gulf Guaranty Life Ins. Co. v. Middleton , 361 So.2d 1377, 1383 (Miss. 1978). The Court also specifically has stated: Whether the evidence sufficiently meets the three-prong test of apparent authority is an issue for the fact-finder. Andrew Jackson Life Ins. Co. v. Williams , 566 So.2d 1172, 1181 (Miss. 1990).
¶ 32. The Bank and Dunn argue that McNultys affidavit establishes the first element of the three-prong test. McNultys affidavit states that Newsome was aware that funds were being used to cover living expenses, attorneys fees, and construction expenses. The Bank and Dunn maintain that Newsome did not communicate that McNulty was not authorized to withdraw funds from the conservatorship account, despite Newsomes knowledge that McNulty was withdrawing conservatorship account funds. The Bank and Dunn state that Newsomes actions indicated that McNulty had apparent authority to manage and direct payment orders from the conservatorship account.
¶ 33. Newsome argues that the Bank has not met the summary-judgment standard. Newsome states that McNultys affidavit only contains conclusory allegations regarding McNultys authority, despite the fact that the record is saturated with factual issues regarding McNultys authority. Further, Newsome maintains that the record does not show that Newsome gave McNulty any authorization.
¶ 34. Mississippi caselaw provides: [T]he principal is bound if the conduct of the principal is such that persons of reasonable prudence, ordinarily familiar with business practices, dealing with the agent might rightfully believe the agent to have the power he assumes to have. Steen , 78 So.2d at 883 (emphasis added). The evidence presented by the Bank establishes McNultys knowledge, not the Banks knowledge at the time McNulty was managing the conservatorship. In other words, McNultys affidavit does not establish what the Bank knew, which is key to the first element of apparent authority.
¶ 35. To understand what the Bank knew, Dunns affidavit is crucial. Dunns affidavit states: It was my understanding that this was to be a court-administrated account and that no funds were to be transferred into or out of the account without a court order. Dunns affidavit also states that McNulty routinely instructed [him] by electronic or other means to issue cashiers checks. Further, Dunns affidavit states that Newsome visited the Bank to request disbursements from the account, and Dunn repeatedly explained the need for a court order and for Newsome to consult with her attorney. Finally, Dunn states that Newsome never objected to the payment orders directed by McNulty, [and] never communicated ... that McNulty did not have the right to direct payment orders from the conservatorship account .... On the other hand, Newsome testified in her deposition that she spoke to Dunn about the account because she did not know anything about the conservatorship account and was not receiving a statement. Newsome further testified that Dunn would not tell her or show her anything about the account.
¶ 36. Dunns affidavit illustrates the Banks knowledge and does constitute evidence establishing the first element of apparent authority. See Estate of Cappaert , 991 So.2d at 1212 (acts or conduct by the principal indicating the agents authority). However, Newsomes deposition testimony calls into question Dunns testimony regarding her acts or conduct indicating McNultys authority, if any. Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Kinney , 202 So.3d at 192. Thus, Newsomes and Dunns testimonies create a disputed issue of material fact as to whether Newsomes conduct and actions indicated that McNulty had authority to disburse conservatorship funds; therefore, the establishment of the instant prong is best left up to a jury. Williams , 566 So.2d at 1181 (Whether the evidence sufficiently meets the three-prong test of apparent authority is an issue for the fact-finder.).
¶ 37. However, before concluding the instant issue, the Court analyzes subsidiary arguments addressed by the Bank and Dunn. The Bank and Dunn argue that because Newsome failed to stop McNulty, estoppel applies. Newsome does not make an estoppel argument but maintains that her lack of action did not ratify McNultys actions because it was not a conscious decision.
¶ 38. Apparent authority is based in the doctrine of estoppel. A principal, having clothed his agent with the semblance of authority, will not be permitted, after others have been led to act in reliance of the appearances thus produced, to deny, to the prejudice of such others, what he has theretofore tacitly affirmed as to the agents powers. Steen , 78 So.2d at 883 ; see also McPherson , 221 So.2d at 78. Thus, in order for an estoppel argument to succeed, the principal must have clothed the agent with authority, and as stated above, here, this is a question of fact for the jury.
¶ 39. The Bank and Dunn also argue that a presumption arises that an attorney who represents a party is authorized to take all action necessary. Newsome argues that there is no court order appointing McNulty as counsel of record. Thus, according to Newsome, McNulty was not her attorney.
¶ 40. The Court has stated:
It is always presumed that an attorney who has represented a party is authorized to do all acts necessary to properly conduct the litigation, and the party denying such authority has the burden of showing his want of authority, and is bound, as to the opposite party, by any act which the attorney does in the regular course of practice, however improper the act may be, if done without fraud or collusion.
Great Atl. & Pac. Tea Co. v. Majure , 176 Miss. 356, 168 So. 468, 472 (Miss. 1936). The Majure Court went on to state: [I]n [a] recent case ... we held that an attorney could not bind a party unless he had been employed by such party .... Id. In 2005, the Court considered Majure and reaffirmed that the above rule arises when the party has employed the attorney. Vaughn v. Rettig , 912 So.2d 795, 799 (Miss. 2005) (citing Majure , 168 So. at 472 ). Whether a party has employed an attorney-or, stated differently, whether an attorney-client relationship exists-is fact-specific. Baker Donelson Bearman Caldwell & Berkowitz , P.C. v. Seay , 42 So.3d 474, 485 (Miss. 2010) (This Court is careful to note that the existence of a professional, attorney-client relationship is fact-specific. For example, the mere response to a question at a social function does not create such a relationship.). A material issue of fact creates a question for the jury. Miss. R. Civ. P. 56.
¶ 41. Here, Charles Merkel of Merkel & Cocke hired McNulty to set up the conservatorship for his client, Victoria Newsome. Thus, no evidence of a written or oral agreement between Newsome and McNulty is in the record. Further, in January 2012, the court appointed McNulty guardian ad litem for Victoria Newsome. Therefore, McNultys interests potentially were adverse to Newsomes interests as the conservator. However, on the other hand, the record provides that McNulty showed Newsome the progress of the house on at least one occasion, and McNulty took fees through the court orders for her work coordinating the building of the house. Thus, due to the conflicting material facts, a jury question exists regarding whether McNulty represented Marilyn Newsome.
¶ 42. In sum, we reverse and remand on the instant issue. Under the first prong of apparent authority, summary judgment is not warranted. We decline to address the remaining prongs of apparent authority because the existence of acts or conduct indicating McNultys authority clearly falls within the jurys purview.
(2) Whether the duty to review statements contained in the Deposit Agreement warrants summary judgment.
¶ 43. The Deposit Agreement for Newsomes conservator account states that Newsome must report any unauthorized transaction to the Bank within thirty days of the statement being sent or made available to her. The Bank and Dunn presented the affidavit of Julie Harris, Senior Vice President of the Bank, to establish that the statements had been mailed. They argue that, under the Mailbox Rule, a presumption arose that Newsome received the statements.
¶ 44. The Bank and Dunn are correct that [t]here is a presumption that mail deposited, postage prepaid and properly addressed is timely delivered to the person addressed. Thames v. Smith Ins. Agency, Inc. , 710 So.2d 1213, 1216 (Miss. 1998). We cannot stop here, however. Regardless of whether Newsome properly rebutted the presumption, the Duty to Review Statements under the Deposit Agreement requires the Court to consider whether the Deposit Agreement is properly interpreted and properly applied under Chapter 4 of the UCC.
¶ 45. Newsome argues that, although Chapter 4A does not apply, Chapter 4 does apply. Citing Mississippi Code Section 75-4-103, Newsome argues that the Bank and Dunn cannot disclaim their own responsibility for a lack of good faith and a failure to exercise ordinary care or limit the measure of damages. Although the Bank and Dunn argue that Chapter 4A applies, they do not argue that Chapter 4 does not apply. In fact, the Bank and Dunn cite Chapter 4, specifically Section 75-4-103, to argue that the thirty-day deadline in the Deposit Agreement is valid.
¶ 46. Chapter 4 applies to bank deposits and collections, including checks. See Miss. Code Ann. §§ 75-4-101 and 75-4-102 (Rev. 2016). Therefore, we agree with all the parties that Chapter 4 applies. In full, Section 75-4-103(a) states:
(a) The effect of the provisions of this chapter may be varied by agreement, but the parties to the agreement cannot disclaim a banks responsibility for its lack of good faith or failure to exercise ordinary care or limit the measure of damages for the lack or failure. However, the parties may determine by agreement the standards by which the banks responsibility is to be measured if those standards are not manifestly unreasonable.
Miss. Code Ann. § 75-4-103(a) (Rev. 2016). The comment further explains subsection (a), stating: Subsection (a) confers blanket power to vary all provisions of the Article by agreements of the ordinary kind. The agreements may not disclaim a banks responsibility for its own lack of good faith or failure to exercise ordinary care .... Miss. Code. Ann. § 75-4-103 cmt. 2 (West, Westlaw through 1992 legislation).
¶ 47. Thus, the Bank and Dunn are correct that they had the authority and the right to create a Deposit Agreement and to implement a thirty-day deadline to review statements. However, as stated in Section 75-4-103, the Deposit Agreement cannot be used to disclaim the Banks own responsibility for good faith or ordinary care.
¶ 48. In the Deposit Agreement, the paragraph addressing the Duty to Review Statements states: You MUST review your statement with reasonable promptness, and if you discover (or reasonably should have discovered) any errors or unauthorized activity involving signatures, including alterations or unauthorized signatures on withdrawal of items, you MUST notify us immediately in writing. However, the Bank and Dunn are using the Duty to Review Statements to disclaim their own responsibility for good faith and ordinary care. Under Section 75-4-103, this is not allowed. Further, Duty to Review Statements does not contemplate or address the Banks own action of removing money from an account as miscellaneous debits and issuing cashiers checks that did not require the account holders signature. Therefore, under the specific and unique facts of the instant case, the Duty to Review Statements does not save the Bank and Dunn from liability.
(3) Whether the Uniform Commercial Code displaces Marilyn Newsomes common-law claims.
¶ 49. Newsome brought a number of common-law claims against the Bank and Dunn, including conspiracy, fraud, breach of contract, negligence, breach of the duty of good faith and fair dealing, negligence per se, gross negligence, intentional infliction of emotional distress. The Bank and Dunn argue that the common-law claims are barred. Newsome maintains that its common-law claims are not barred.
¶ 50. The UCC provides the following: Unless displaced by the particular provisions of the Uniform Commercial Code, the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, and other validating or invalidating cause supplement its provisions. Miss. Code Ann. § 75-1-103(b) (Rev. 2016). In order for the UCC to apply over common law, the UCC must specifically displace common law. See Patel v. Telerent Leasing Corp. , 574 So.2d 3, 7 (Miss. 1990) (Pre-UCC laws supplement code provisions and are still applicable unless displaced by particular provisions of the code.); see also Gibson v. Manuel , 534 So.2d 199, 201 (Miss. 1988).
¶ 51. In Hancock Bank v. Ensenat , 819 So.2d 3 (Miss. Ct. App. 2001), the Court of Appeals held that Chapter 3 of the UCC displaced the common-law claims. First, it considered that although the plaintiff had not brought suit under conversion, conversion had occurred and was the proper cause of action. Ensenat , 819 So.2d at 8-10. Further, because Section 75-3-420 specifically provided the measure of liability for a conversion action, the Ensenat Court concluded that the UCC had displaced the common-law claims. Ensenat , 819 So.2d at 8 (citing Miss. Code Ann. § 75-3-420 (Rev. 2016) (The Code establishes the measure of Hancock Banks liability for conversion.). See also Berhow v. Peoples Bank , 423 F.Supp.2d 562, 567-68 (S.D. Miss. 2006) (In addition, § 75-3-420 displaces Berhows common law claims insofar as her common law claims relate to the conversion of the instruments.).
¶ 52. Ensenat and Berhow both specifically address the applicable language of the UCC at issue here. However, Mississippi caselaw on the topic is limited. Therefore, we look to caselaw around the country for guidance. While there may be some conflict about whether certain sections displace common law claims, the general rule is that common-law claims are displaced when the UCC directly addresses the allegations or specifically cover[s] the allegations, even if, as in Ensenat , the allegations are improperly labeled. Zengen, Inc. v. Comerica Bank , 41 Cal.4th 239, 59 Cal.Rptr.3d 240, 158 P.3d 800, 808 (2007) (quoting Sheerbonnet, Ltd. v. American Exp. Bank, Ltd. , 951 F.Supp. 403, 407-408 (S.D.N.Y. 1995) ; Choice Escrow & Land Title, LLC v. BancorpSouth Bank , 754 F.3d 611, 625 (8th Cir. 2014).
¶ 53. The gravamen of the claims at issue here is the Banks and Dunns removal of money from the conservatorship account and issuance of cashiers checks without Newsomes signature or approval. The Bank and Dunn argue that Newsomes common law claims are barred under Article 4A. However, as concluded above, Article 4A does not apply, and the Bank and Dunn have failed to provide any additional specific provisions within the UCC that displace Newsomes common law claims. Thus, the Court holds the instant issue to be without merit.
(4) Whether Peoples Bank risked contempt of court if the bank refused to comply with the courts orders.
¶ 54. The Bank and Dunn argue that they risked contempt if they refused to comply with the courts orders. This simply is not true. In Miss. Bank v. Kelly , 445 So.2d 849 (Miss. 1984), following precedent, the Court reiterated that, in order to be held in contempt, the entity to be held in contempt must be given notice from the court and afforded an opportunity to be heard. Id. at 851. The Court stated:
[T]he decree of the chancery court requiring that the guardianship funds not be withdrawn without court order was entered without giving the Bank notice and affording it an opportunity to be heard. Consequently, the order was void insofar as it affected the Bank. Applying the principles of Sinquefield [v. Valentine , 159 Miss. 144, 132 So. 81 (Miss. 1931),] and McKinney [v. McKinney , 374 So.2d 230 (Miss. 1979) ], supra , the Bank cannot be held in contempt for failure to abide by the chancery courts decree.
Id. Thus, the Bank and Dunn would have been entitled to notice and an opportunity to be heard.
¶ 55. Further, the courts orders addressed neither how the money should be removed from the conservatorship account nor how the money should be delivered to the beneficiaries. Therefore, the issue is not whether the Bank and Dunn followed the courts orders, the issue is whether the Bank and Dunn were authorized to remove money from the conservatorship account and issue cashiers checks without the account holders signature or approval .
(5) Whether Chris Dunn is entitled to summary judgment on claims against him in his individual capacity.
¶ 56. The Bank and Dunn argue that it is undisputed that Dunn did not act in any manner that would justify personal liability. On the other hand, without citing any authority in her brief, Newsome argues that she has brought claims against Dunn individually.
¶ 57. Newsome cites no authority to support her argument. Failure to cite legal authority in support of an issue is a procedural bar on appeal. Webb v. DeSoto Cty. , 843 So.2d 682, 685 (Miss. 2003). The Court has stated:
We have consistently held that an argument unsupported by cited authority need not be considered by the Court. Dowdle Butane Gas Co. v. Moore , 831 So.2d 1124, 1136 (Miss. 2002). In addition, we have expressly held that [i]t is the duty of an appellant to provide authority in support of an assignment of error. Jones v. Howell , 827 So.2d 691, 702 (Miss. 2002). Where an assertion of error is not supported by authority, that assertion is deemed abandoned. Id. This Court is therefore procedurally barred from considering unsupported assertions on appeal. Webb v. DeSoto County , 843 So.2d 682, 685 (Miss. 2003).
Alexander v. Womack , 857 So.2d 59, 62 (Miss. 2003). Thus, the procedural bar applies. Despite the bar, Newsome also has maintained consistently (in her Amended Complaint and in her Motion for Summary Judgment) that the Bank is vicariously liable for Dunns actions under the doctrine of respondeat superior.
¶ 58. In sum, Newsomes argument that Dunn is individually liable is unsupported by any cited authority and contradicts her previous arguments. Thus, the Court affirms the grant of summary judgment for Dunn, although under different reasoning.
CONCLUSION
¶ 59. For the reasons explained above, the Court affirms in part and reverses in part the judgment of the trial court on appeal. Further, under different reasoning, the Court affirms the judgment of the trial court on cross-appeal. Finally, the Court remands the case for further proceedings consistent with the opinion.
¶ 60. ON DIRECT APPEAL: AFFIRMED IN PART, REVERSED IN PART AND REMANDED. ON CROSS-APPEAL: AFFIRMED.
WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAXWELL AND ISHEE, JJ., CONCUR. BEAM, J., NOT PARTICIPATING.
See Newsome v. Shoemake , 234 So.3d 1215 (Miss. 2017) ; In re Conservatorship of Newsome , 186 So.3d 830 (Miss. 2016) ; Miss. Commn on Judicial Performance v. Shoemake , 191 So.3d 1211 (Miss. 2016) ; Miss. Commn on Judicial Performance v. Walker , 172 So.3d 1165 (Miss. 2015).
The applicable sections of the Deposit Agreement will be covered in greater detail below.
Most of the court orders were not accompanied by petitions.
Although the court orders were not certified, the Bank states in its brief that it verified that the requested disbursements had been authorized by the trial court.
The final judgment contains a Rule 54(b) certification.
The statute of repose provides:
If a receiving bank has received payment from its customer with respect to a payment order issued in the name of the customer as sender and accepted by the bank, and the customer received notification reasonably identifying the order, the customer is precluded from asserting that the bank is not entitled to retain the payment unless the customer notifies the bank of the customers objection to the payment within one (1) year after the notification was received by the customer.
Miss. Code. Ann. § 75-4A-505.
The trial court found an issue of fact existed about whether the Miscellaneous Debit information on Newsomes statement constituted notification reasonably identifying the order. Miss. Code. Ann. § 75-4A-505. However, because we conclude that Chapter 4A does not apply to the transactions in question, we need not address whether the trial courts finding was correct.
A sender is defined as the person giving the instruction to the receiving bank. Miss. Code Ann. § 75-4A-103(5) (Rev. 2016). An originator is defied as the sender of the first payment order in a funds transfer. Miss. Code Ann. § 75-4A-104(c) (Rev. 2016) (emphasis added). And a payment order is an instruction. See Miss. Code Ann. § 75-4A-103(a)(1) (Rev. 2016). Therefore, under Chapter 4A, the receiving bank is the same entity as the originators bank, and the sender is the same entity as the originator.
The bank-to-bank transfer can be a transfer between the same bank. Miss. Code Ann. § 75-4A-104 cmt. 1 (West, Westlaw through 2018 Legis. Sess.).
The Court cited at length Mississippis law on authority. First referencing actual authority and then moving on to apparent authority:
The power of an agent to bind his principal is not limited to the authority actually conferred upon the agent, but the principal is bound if the conduct of the principal is such that persons of reasonable prudence, ordinarily familiar with business practices, dealing with the agent might rightfully believe the agent to have the power he assumes to have. The agents authority as to those with whom he deals is what it reasonably appears to be. So far as third persons are concerned, the apparent powers of an agent are his real powers. 2 C.J.S. Agency, [§§] 95, 96. This rule is based upon the doctrine of estoppel. A principal, having clothed his agent with the semblance of authority, will not be permitted, after others have been led to act in reliance of the appearances thus produced, to deny, to the prejudice of such others, what he has theretofore tacitly affirmed as to the agents powers. 2 C.J.S., Agency, [§] 96(c).
McPherson , 221 So.2d at 78 (quoting Steen v. Andrews , 223 Miss. 694, 78 So.2d 881, 883 (1955) (emphasis added).
In January 2012, Newsome was in the midst of building the house. In March 2011, the judge denied the petition to approve the purchase of a home for Victoria Newsome and ordered that a home be built. In April 2012, McNulty filed a motion to withdraw as counsel for the conservatorship and as guardian ad litem.
Here, the Amended Complaint alleges bad faith.
In 2010, the Section 75-1-103(b) was amended, and the word shall was deleted. Unif. Commercial Code--Conformance To Model Act, ch. 506, 2010 Miss. Laws (West). However, the deletion of shall does not make the subject caselaw non-binding because the change did not affect the current statute: Unless displaced by the particular provisions of the Uniform Commercial Code, the principles of law and equity ... supplement its provisions. Miss. Code Ann. § 75-1-103(b).
Compare Ma v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , 597 F.3d 84, 90 (2d Cir. 2010) (stating, Article 4As text strongly suggests that it applies to claims asserting the existence of unauthorized wire transfers regardless of what the claims may be called ....), and Miller v. Union Planters Bank , N.A. , 2006 WL 3391095 (S.D. Miss. Nov. 22, 2006) (holding that Chapter 4A did not displace common-law claims and concluding that, in Ensenat , Chapter 3 of the UCC contained limiting language regarding the amount of recovery for conversion).
The courts orders here did provide the final recipients of the money, and based on the record before the Court, those recipients received the money.