All American Siding & Windows, Inc. v. Bank of America, National Ass'n
367 S.W.3d 490
Tex. App.2012Background
- AAS and EagleOne were victims of fraudulent checks in 2008 via their Bank of America online system and ACH, leading to suit seeking reimbursement and damages.
- Bank asserted affirmative defenses under Texas Business and Commerce Code § 4A.202 and contract provisions limiting liability; Bank moved for traditional and no-evidence summary judgments and a bench-trial.
- Keehn (AAS/EagleOne controller) and Kirks (secretary-treasurer) alleged representations by Bank about security and reimbursement; Evans testified on security procedures and that Bank typically does not cover commercial losses.
- Contracts (Treasury Services Terms and Conditions and Deposit Agreement) imposed security procedures, liability limits, and a clear final-agreement clause; security was maintained by IDs, passwords, digital certificates, and authorizations.
- Bank’s initial reimbursements for fraud were seen as provisional and subject to final settlement; Bank later reversed reimbursements after investigations and contract-driven conditions.
- Trial court overruled objections to Evans’ affidavit, granted traditional and no-evidence summary judgments, and granted a bench-trial; appeal followed to challenge these rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Objection to Evans’ affidavit | Evans not an expert; lacked qualification. | Evans designated corporate rep with knowledge; proper foundation. | No abuse; overruling objections upheld. |
| Traditional summary judgment viability | Genuine issues of material fact exist about security and promises. | Contracts and §4A.202 create an affirmative defense as a matter of law. | Affirmative defense established; traditional SJ proper. |
| No-evidence summary judgment viability | Evidentiary sufficiency exists to raise issues on DTPA/fraud. | No probative evidence to show material fact issues. | No-evidence SJ properly granted. |
| Oral express reimbursement agreement | There was an oral promise to reimburse fraud losses. | Written agreements control; oral terms not admissible to override. | Written agreements control; no enforceable oral reimbursement term. |
| Bench trial mootness | Challenge to bench-trial waiver remains live. | SJ ruling resolves the dispute; bench-trial issue moot. | Moot. |
Key Cases Cited
- Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex. 2000) (evidentiary rulings reviewed for abuse of discretion)
- BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (abuse of discretion standard for admissibility/summary judgments)
- FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000) (established traditional SJ standards)
- Canfield v. Bank One, Texas, N.A., 51 S.W.3d 828 (Tex. App.-Texarkana 2001) (DTPA vs contract remedies; warranty source analysis)
- Cont’l Dredging, Inc. v. De-Kaizered, Inc., 120 S.W.3d 380 (Tex. App.—Texarkana 2003) (economic loss rule; contract vs tort remedies)
- Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323 (Tex. 2011) (fraud elements and inducement standard)