Lead Opinion
MAJORITY OPINION
Aрpellant Tom W. Fetter sued appellees Wells Fargo Bank Texas, N.A., f/k/a Nor-west Bank Texas, N.A., and Wells Fargo Services, Inc., f/k/a Norwest Services, Inc., for breach of contract and breach of the Uniform Commercial Code’s duty of good faith. See Tex. Bus. & Com.Code Ann. § 1.203 (Vernon 1994).
In this case of first impression, we agree that the express language of the Account Agreement and UCC section 4.303(b),
DISCUSSION
Standard of Review
In a single issue, Fetter challenges the trial court’s order granting Wells Fargo’s motion for summary judgment. The purpose of summary judgment is to eliminate patently unmeritorious claims or untenable defenses; it is not intended to deprive litigants of their right to a full hearing on the merits of any real issue of fact. Gulbenkian v. Penn,
As a defendant moving for a traditional summary judgment, Wells Fargo assumed the burden of showing as a matter of law the plaintiff has no cause of action against it. See Levesque v. Wilkens,
Because the propriety of summary judgment is a question of law, we review the trial court’s decision de novo. Brown v. Blum,
The Live Pleadings and the Summary Judgment Proof
In his five plеadings, Fetter characterized his cause of action as one for “breach
In its motion for summary judgment, Wells Fargo argued Fetter’s breach of contract claim fails as a matter of law because (1) UCC section 4.303(b) expressly allows banks to post checks “in any order,” and (2) the Account Agreement expressly authorizes high to low posting. Wells Fargo argued Fetter’s breach of the duty of good faith claim fails as a matter of law bеcause (1) the good faith duty cannot be applied to rewrite the express terms of the Account Agreement, (2) there can be no breach of the good faith duty when a party acts in strict compliance with the terms of a contract, and (3) there is no independent cause of action for breach of the good faith duty.
In support of its motion, Wells Fargo attached its representative’s affidavit, stating, “The [Account] Agreement ... has been the agreement governing all сonsumer banking accounts at Wells Fargo Bank Texas, N.A., like Plaintiff Tom W. Fetter’s, since April 2000.” Wells Fargo also attached the Account Agreement, which provides, in part:
Your account may be debited on the day an Item is presented by any means, including without limitation electronically, or at an earlier time based on notification received by the Bank that an Item drawn on your account will be presented for payment or collection. The Bank may pay Items presented аgainst your account in any order it chooses, unless a particular order is either required or prohibited by law. In particular, the Bank may, if it chooses, pay Items in the order of highest dollar amount to lowest dollar amount (unless such a practice is specifically prohibited by an applicable state or federal law, rule, or regulation). The Bank may change the order of posting Items to your account at any time without notice to you. (Emphasis added.)
Fetter’s resрonse in the trial court and on appeal relies to a large extent on a State Bar Committee comment to UCC section 4.303, in which the committee opined that, although subsection (b) provides great discretion to the bank, the bank must continue to act in good faith, and, as an example, “a procedure designed to maximize the number of returned checks solely to increase returned check fees charged to customers would not be appropriate.” Tex. Bus. & Com.Code Ann.
Analysis
Rules of statutory construction. This case requires us to construe UCC sections 1.023 and 4.303(b) together. A court’s objective in construing a statute is to determine and give effect to the legislature’s intent. Tex-Air Helicopters, Inc. v. Galveston County Appraisal Review Bd.,
Under the Code Construction Act, we are required to construe uniform acts included in a code “to effect its general purpose tо make uniform the law of those states that have enacted it.” Tex. Gov’t Code Ann. § 311.028 (Vernon 1998); see MBank El Paso, N.A. v. Sanchez,
Statutory and contraсtual provisions authorizing high to low posting. UCC section 4.303(b) provides:
Subject to Subsection (a), items may be accepted, paid, certified, or charged to the indicated account of a bank’s customer in any order and before or after the bank’s regular banking hours. A bank is under no obligation to determine the time of day an item is received and without liability may withhold the amount thereof pending a determination of the effect, consequence or priority of any knowledge, notice, stop-payment order, or legal process concerning the same, or interplead such amount and the claimants thereto.
Tex. Bus. & Com.Code Ann. § 4.303(b) (Vernon 2002) (emphasis added).
Under the plain language of this section, the legislature has authorized Wells Fargo’s practice of posting from high to low. In addition, UCC comment 7 explains,
As between one item and another no priority rule is stated. This is justified because of the impossibility of stating a rule that would be fair in all eases, having in mind the almost infinite number of combinations of large and small checks in relation to the available balance on hand in the drawer’s account; the possible methods of receipt; andother variables. Further, the drawer has drawn all the checks, the drawer should have funds available to meet all of them and has no basis for urging one should be paid before another....
Tex. Bus. & Com.Code Ann. § 4.303 cmt. 7 (Vernon 2002).
Finally, the relationship between Fetter and Wells Fargo is governed by an Account Agreement. Under that Agreement Wells Fargo “may, if it chooses, pay Items in the order of highest dollar amount to lowest dollar amount (unless such a practice is specifically prohibited by an applicable state or federal law, rule, or regulation).”
Fetter, in essence, is asking this court to write this provision out of the Agreement, and authorization for the provision out of the UCC. The net effect of Fetter’s requested change would render section 4.303 of Texas’s UCC non-uniform, in derogation of the Code’s purpose “to make uniform the law among the various jurisdictions.” Tex. Bus. & Com.Code Ann. § 1.102(b)(3) (Vernon 1994).
UCC obligаtion of good faith and State Bar Committee Comment. Fetter, however invokes UCC section 1.023, which provides, “Every contract or duty within this title imposes an obligation of good faith in its performance or enforcement.” Tex. Bus. & Com.Code Ann. § 1.203 (Vernon 1994). “ ‘Good faith’ means honesty in fact in the conduct or transaction concerned.” Tex. Bus. & Com.Code Ann. § 1.201(19) (Vernon 1994).
In addition, Fetter relies on a State Bar Committee Comment to section 4.303, which states,
Although the discretion given a bank by subsection (b) is great, the bank must continue to аct in good faith in establishing its policies and procedures in this area. For example, a procedure designed to maximize the number of returned checks solely to increase returned check fees charged to customers would not be appropriate.
Tex. Bus. & Com.Code Ann. § 4.303 state bar committee cmt. (Vernon 2002) (emphasis added). It is by virtue of this comment that Fetter contends he has raised a fact issue; and by virtue of this comment he distinguishes the foreign jurisdiction cases Wells Fargo сites.
As support for his contention that we view this comment as persuasive authority, Fetter cites Destec Energy, Inc. v. Houston Lighting & Power Co.,
Fetter has not presented this court with anything in the legislative history of section 4.303 that would suggest the legislature had the Bar Committee’s comment before it when it enacted the provision permitting a bank to pay items “in any
Texas case law. In the context of a case in which the plaintiff claimed damages for a violation of UCC section 1.203, the supreme court observed, “In the absence of a specific duty or obligation [in the contract] to which the good-faith standard could be tied, section 1.203 will not support [the plaintiffs] claim for damages.” N. Nat. Gas Co. v. Conoco, Inc.,
Fetter, however, points to La Sara Grain Co. v. First Nat’l Bank of Mercedes, as “instructive.” See
Section 4.406 places a duty upon the depositor to promptly examine his bank statement and report to the bank the discovery of any “unauthorized signature or any alteration.” Id. § 4.406(a). If the depositor fails to comply with this duty, the bank is protected from loss so long as it has exercised ordinary care and paid the item in good faith. Id. § 4.406(b), (c). If a depositor does not report an unauthorized signature within one year from the time the statement and items are made available to him, the bank’s care or lack thereof becomes irrelevant, id. § 4.406(d); at that point, the customer’s only claim is that the item was not paid in good faith. Id. § 4.406(d).
Id. at 561-62 (footnote omitted) (citing Act of May 25, 1967, 60th Leg., R.S., ch. 785, § 1, sec. 4.406, 1967 Tex. Gen. Laws 2343, 2458) (since amended, current provi
In opening its account at First National, La Sara also filed a corporate resolution with the bank providing that any two of four authorized signatories could sign checks for the corporation. La Sara Grain,
Based on this evidence, the court concluded the bank did not act in good faith in accepting the checks with only one authorized signature. Id. In reaching this conclusion, the court relied on the fact that the bank knew that two signatures were required and that the checks bore only one signature. Id. Thus, in La Sara, the bank arguably acted contrary to the agreement it had with the customer. Moreover, the UCC section at issue contained the good faith requirement as an express limitation of the protection it provided to the bank. La Sara is not instructive for deciding a case involving different UCC provisions and a bank acting in accord with the agreement it has with the customer.
Casе law from other jurisdictions. Although this is an issue of first impression in Texas, courts in other jurisdictions have uniformly concluded that posting checks from high to low does not contravene the UCC good faith provision at issue in the present case. See Hill v. St. Paul Fed. Bank for Sav.,
The banks’ account agreements contained provisions allowing overdraft fees. Plaintiffs are alleging that the high-to-low posting order chosen by defendants was improper because it was inconsistent with the reasonable expectations of customers and because it was chosen to maximize the banks’ profits. Plaintiffs have not brought an independent cause for the breach of good faith but have alleged that defendants have failed to perform the obligation to assess overdraft fees in good faith.
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Although defendants’ account agreements do not specify the posting order thаt they will use, section 4 — 303(b) allows defendants to choose any method.The legislature must have understood the broadness of the phrase “any order.” It must have recognized that banks could choose a method that benefitted them — as in the case where posting higher amounts first results in a greater number of overdraft fees.
There can be no lack of good faith in acting as authorized by the UCC. See Washburn v. Union National Bank & Trust Co. of Joliet,151 Ill.App.3d 21 , 27,104 Ill.Dec. 242 ,502 N.E.2d 739 (1986) (having found that the sale of collateral was commercially reasonable within the mеaning of section 9-507(2) of the UCC, the sale could not violate a bank’s duty of good faith). Even if plaintiffs proved that the primary motivation of defendants was to maximize profits, their motive is irrelevant because their choice of the high-to-low posting method was authorized by the UCC.
Hill,
Fetter argues Hill is distinguishable based on the State Bar Committee Comment to the Texas UCC section 4.303. For the reasons discussed above, we do not find that comment persuasive authority.
Fetter has cited no reported case in whiсh a court has held a bank violates the UCC duty of good faith when it implements, performs, or enforces a high to low method of posting checks. We have found none.
We overrule Fetter’s sole issue.
We affirm the judgment of the trial court.
WANDA McGEE FOWLER, J., concurring.
Notes
. Although Fetter brought the lawsuit as a class action, the trial court never ruled on Fetter’s motion to certify the class.
. The trial court and the parties refer to Wells Fargo’s Consumer Account Agreement variously as "the contract,” the “Deposit Account Agreement,” the "Depositor Agreement,” and the "Deposit Contrаct.” We refer to the document as the "Account Agreement.”
. See Tex. Bus. & Com.Code Ann. § 4.303(b) (Vernon 2002).
. The factual and procedural background of the case is generally not germane to the analysis. We set forth the relevant historical and procedural facts in the course of the discussion.
. At oral argument, Fetter's counsel characterized the lawsuit as one seeking only injunc-tive relief.
. We note Fetter seeks injunctive relief. In-junctive relief is an equitable remedy, and the complaining party must come into court with clean hands. See Landry's Seafood Inn & Oyster Bar-Kemah v. Wiggins, 919 S.W.2d 924, 927 (Tex.App.-Houston [14th Dist.j 1996, no writ). Here, it would appear Fetter wrote checks exceeding the available balance in his account.
. The Smith court specifically concluded that, when a party is acting under authority expressly granted by statute and is not exceeding that authority, there is, as a matter of law, no breach of either the common law duty of good faith in the performance of the contract or a violation of the statutory requirement of good faith. Smith v. First Union Nat’l Bank of Tenn.,
. The facts in the case sub judice are even stronger than those in Hill because Wells Fargo has language in its Account Agreement specifically permitting high to low posting in addition to the authorization provided in UCC section 4.303(b).
Concurrence Opinion
concurring.
I agree completely with the majority opinion. I write only to explain the differences between this case and another U.C.C. case recently issued by this court, in which we held that a fact issue existed on whether a party acted in good faith in setting an “open price term.” See HRN, Inc. v. Shell Oil Co.,
Relying on a U.S. Circuit Court opinion from the Fifth Circuit that involved nearly identical facts and issues, we held that, even though Shell’s price might be comparable to its competitors’, Shell was required to set the price in good faith, and that a fact issue existed on that point. Id. at 215. In reaching this conclusion, we relied on the plain language of section 2.305 and on the official U.C.C. comment to the section. Id. at 211-215. The plain language of section 2.305(b) requires that an open price term- — described as a “price to be fixed by the buyer or seller” — must be fixed in good faith. Id. at 211. The comment to section 2.305 states that normally a “posted price” or “market price” will satisfy the good faith requirement, but, it noted that whatever price is set must be set in good fаith. Id. at 212. The dealers in HRN presented some evidence by which a jury could conclude that
This case is very different from HRN, and that is why we have held that no fact issue exists, even though we held one existed in HRN. There are several ways the cases are different.
First, the U.C.C. sections themselves differ. Section 4.303, at issue here, expressly allows a bank to post checks in any order. Although the U.C.C. section in HRN allowed parties to use “open price terms,” it rеquired that the terms be set in good faith. No such requirement exists in section 4.303.
Second, the official U.C.C. comments for the two sections are very different. The comment for 4.303 expressly notes that no priority rule for paying checks is stated in the section and that it would be impossible to state a rule that was fair in all cases. Tex. Bus. & Com.Code Ann. § 4.303 cmt. 7 (Vernon 2002). The comment acknowledges the futility of choosing a priority system that is fair to all, and so it acknowledges that any order is acceptable, acknowledging also that the drawer should have funds available for all the checks written. In contrast, the U.C.C. comment involved in HRN did not approve of all price settings; it approved only of those set in good faith. Thus, consideration of good faith is part and parcel of the U.C.C. comment for section 2.305 (in HRN), but not in 4.303 (this case). Although the State Bar Comment to 4.303 does attempt to add good faith consideration into section 4.303, as we note in the majority opinion, our legislature did not approve that language, and we do not find it persuasive. And, in fact, a plain reading of section 4.303 would lead one to believe that good faith is not part of the equation.
The final difference between the two cases lies in the relationships between the parties and the control Fetter and the dealers exercised over their fates. Here, Fetter — the drawer/plaintiff — was on notice through his contract with the bank that it could pay cheeks in order of highest to lоwest. If he did not like that system, he could choose to take his business to another bank. In addition, the fees were only charged if Fetter did not have enough money in the bank to cover the checks he had written. Unlike Fetter, the dealers in HRN alleged that they were captive buyers who were required by contract to buy gas from Shell. Moreover, unlike Fetter, who was partly responsible for the fees he had to pay, the dealers did not control whether they incurred ill effects from Shell’s alleged bad acts.
In short, the majority opinion is correct. Unlike HRN, neither the applicable U.C.C. provisions nor the parties’ agreement may be read to impose a duty of good faith on Wells Fargo’s check-posting practices.