Burnside, John O. v. Old National Bank , 208 F. App'x 495 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 15, 2006*
Decided December 18, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-2832
JOHN O. BURNSIDE, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Indiana,
Indianapolis Division.
v.
No.04 C 116
OLD NATIONAL BANK,
Defendant-Appellee. John Daniel Tinder,
Judge.
ORDER
Federal prisoner John Burnside sued Old National Bank (“ONB”) in this
diversity action under Indiana law for breach of contract and breach of fiduciary
duty. The district court granted summary judgment for ONB. Burnside appeals,
and we affirm.
Burnside maintained a “Liquid Gold Premium” account at Merchants
National Bank (“Merchants”) that became a “Basic Savings” account subject to a
new interest rate when ONB acquired Merchants. The interest rate change applied
to all Basic Savings accounts. Burnside’s accounts were subject to an agreement
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 06-2832 Page 2
stating that the bank has “the right to change the rates and fees in accordance with
the terms of the Schedule” and “reserve[s] the right to change any other term of this
Agreement at [its] sole discretion.” After the acquisition, Burnside requested ONB
to send checks from his account to pay for costs associated with post-conviction
proceedings in his criminal cases. However, Bureau of Prisons (“BOP”) policy does
not allow inmates to make withdrawals from savings accounts except in emergency
situations, and even then the policy mandates that a BOP unit manager authorize
the withdrawal in writing to the bank. No unit manager authorized Burnside’s
withdrawals, and ONB did not fulfill his check requests.
Burnside sued ONB, claiming that ONB breached the account agreement by
changing his account without his consent and by preventing him from withdrawing
funds. He also claimed that ONB breached its fiduciary duty when it failed to
comply with his check requests. The district court granted summary judgment for
ONB, finding that the account agreement gave ONB “sole discretion” to make the
complained-of changes. The court also determined that ONB did not breach the
account agreement by complying with the BOP restriction on withdrawals, and that
no fiduciary relationship existed between the parties.
On appeal, Burnside argues that genuine issues of material fact exist as to
whether ONB breached the account agreement by not obtaining his approval or
notifying him before changing his Liquid Gold Premium account to a Basic Savings
account and applying a new interest rate. To prevail on a breach of contract claim,
however, Burnside must demonstrate the existence of a contract with ONB, breach
of that contract, and damages resulting from the breach. Nieto v. Kezy, 846 N.E.2d
327, 333 (Ind. Ct. App. 2006). Burnside points to no contract term that would
require ONB to obtain his approval before making the complained-of changes to his
account. Nor does he explain how these changes were outside of ONB’s right, as set
forth in the account agreement, “to change the rates and fees in accordance with the
terms of the Schedule” and to make changes to “any other term of this Agreement at
[its] sole discretion.” While the account agreement required ONB to give notice of
amendments “as required by applicable law,” Burnside has not identified what law,
if any, he believes ONB violated by not giving him advance notice of the changes,
and we will not conduct legal research to determine whether any law exists that
might support his claim. See Anderson v. Hardman, 241 F.3d 544, 545 (7th Cir.
2001); Muhich v. Comm’r, 238 F.3d 860, 864 n.10 (7th Cir. 2001).
Burnside also argues that the sprawling declaration he submitted in
opposition to summary judgment—in which he asserted that the BOP policy did not
apply to his account—“irrefutably contradicted” ONB’s assertion that the policy
prevented it from fulfilling Burnside’s check requests. But Burnside’s assertion is
not supported by the record, so his self-serving declaration does not create a
No. 06-2832 Page 3
genuine issue of fact. See Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir.
2001). And again, Burnside cannot prevail on his breach of contract claim unless
ONB breached the account agreement, see Nieto, 846 N.E.2d at 333, and he has
pointed to no provision in the account agreement that ONB breached by complying
with the BOP restrictions. Nor has Burnside demonstrated that ONB damaged him
by complying with the BOP restrictions. As the district court pointed out,
Burnside’s grievance lies with the BOP, which is the entity that restricted his
ability to access his funds.
Burnside also argues that genuine issues of material fact exist as to whether
a fiduciary relationship exists between himself and ONB, but it is well-settled in
Indiana that “the mere existence of a relationship between parties of bank and
customer or depositor does not create a special relationship of trust and confidence.”
See Wilson v. Lincoln Fed. Sav. Bank, 790 N.E.2d 1042, 1046 (Ind. Ct. App. 2003).
Burnside points to no facts suggesting that he had any relationship with ONB that
went beyond the typical bank-customer relationship.
Burnside has waived his remaining two arguments. He argues for the first
time in his reply brief that the district court relied on the wrong account agreement,
but arguments raised only in a reply brief are waived. See United States v.
Adamson, 441 F.3d 513, 521 n.2 (7th Cir. 2006). Without elaboration, he also
asserts that the court’s decision “amounts to a judgment about the credibility of the
Appellant’s factual allegations.” But the district court made no express credibility
findings, and we cannot discern why Burnside thinks the court’s decision rests on a
credibility judgment. Burnside has waived this argument by failing to develop it.
See Campania Mgmt. Co. v. Rooks, Pitts & Poust, 290 F.3d 842, 852 n.6 (7th Cir.
2002).
AFFIRMED.