508 S.W.3d 791
Tex. App.2016Background
- Calleja opened a Compass Bank money-market account in 1988, directed statements to his brother in The Woodlands, and used the account infrequently.
- In June–July 2012 an unknown person impersonated Calleja, changed the account address, obtained a debit card and checks, and a $38,700 check was cashed on July 30, 2012.
- Bank statements reflecting the unauthorized transactions were thereafter mailed to various out-of-state addresses; Calleja first learned of the activity in January 2014 and filed a forgery affidavit.
- Calleja sued for reimbursement of the unauthorized withdrawals; both parties moved for summary judgment.
- The Bank relied on a February 2012 amended deposit agreement (not shown to have been properly delivered to Calleja) and asserted defenses under Tex. Bus. & Com. Code §§ 4.406, 3.405, 3.406; the trial court granted the Bank’s motion, denied Calleja’s, and awarded the Bank attorney’s fees.
- The court of appeals reversed, holding the Bank failed to prove the 2012 amendment applied, failed to send or "make available" statements to Calleja under the controlling 2008 agreement, and failed to establish the statutory affirmative defenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which deposit agreement governed (2008 vs Feb 2012 amendment)? | 2008 agreement governed; Bank never proved proper notice of amendment. | 2012 amended agreement applied; Calleja continued using account after amendment. | 2012 amendment not established as effective; 2008 agreement governs. |
| Did the Bank "send or make available" statements so §4.406 duty to inspect was triggered? | Bank did not send/make available statements to Calleja — statements were mailed to an imposter and contractual definition of "make available" required delivery per Calleja's instructions. | Statements were available (could be obtained at branches or online) and were mailed to address on file. | Bank did not send or make available statements to Calleja under the 2008 agreement; duty to inspect never arose. |
| Do §§3.405/3.406 bar recovery (employer/ordinary-care defenses)? | Calleja did not entrust responsibility to his brother and did not fail to exercise ordinary care that substantially contributed to the forgery. | Calleja entrusted info to his brother (or was otherwise negligent), so employer/ordinary-care defenses apply. | Bank failed to present evidence that brother was an "employee" or that Calleja's ordinary care substantially contributed to forgery; defenses not established. |
| Was trial court correct to deny Calleja’s summary judgment and grant Bank’s? | Calleja showed payments were unauthorized and Bank failed to prove defenses; he was entitled to summary judgment. | Bank asserted statutory and contractual defenses and urged denial. | Court of appeals held trial court erred; Calleja entitled to judgment for unauthorized withdrawals; Bank summary judgment reversed and attorney-fee awards vacated. |
Key Cases Cited
- Martin v. American Airlines Employees Federal Credit Union, 29 S.W.3d 86 (Tex. 2000) (customer duty to discover/report unauthorized withdrawals is triggered when bank provides sufficient information)
- Jefferson State Bank v. Lenk, 323 S.W.3d 146 (Tex. 2010) (bank does not satisfy §4.406 by sending statements to an imposter)
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (when both parties move for summary judgment appellate court reviews both records)
- Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003) (affirmance of summary judgment if any preserved theory is meritorious)
- Canfield v. Bank One, Texas, N.A., 51 S.W.3d 828 (Tex. App.—Texarkana 2001) (deposit agreements may validly shorten Article 4 statutory notice periods)