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Bartholomew C. Okonkwo v. Washington Mutual Bank, FA ( 2007 )


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  • Affirmed and Memorandum Opinion filed March 15, 2007

    Affirmed and Memorandum Opinion filed March 15, 2007.

     

     

    In The

     

    Fourteenth Court of Appeals

    _______________

     

    NO. 14-05-00925-CV

    _______________

     

    BARTHOLOMEW C. OKONKWO, Appellant

     

    V.

     

    WASHINGTON MUTUAL BANK, FA, Appellee

    On Appeal from the 127th District Court

    Harris County, Texas

    Trial Court Cause No. 04-07637A

     

    M E M O R A N D U M   O P I N I O N

    In this dispute over allegedly unauthorized bank account transactions, Bartholomew C. Okonkwo appeals a summary judgment granted in favor of Washington Mutual Bank, FA (the ABank@). In twelve issues, Okonkwo challenges the summary judgment on various procedural and substantive grounds. We affirm.

     

    I.  Background

    Prior to filing this suit, Okonkwo, an attorney, maintained three checking accounts at the Bank:  (1) a joint account in the names of ABartholomew C. Okonkwo and Yvonne L. Okonkwo@; (2) a business account in the name of AThe Galatians Group Medical Division@ (the AGalatians account@); and (3) an AIOLTA@ account in the name of ABartholomew & Associates Trustee for Clients@ (the AIOLTA account@).[1]  In February 2002, Okonkwo discovered that a rent check drawn on the Galatians account had Abounced.@  He went to one of the Bank=s branch locations to determine why this account was overdrawn.  While there, he sought to transfer funds from his IOLTA account to the Galatians account to remedy the situation.  He discovered that the IOLTA account was also overdrawn, apparently due to many withdrawals made using the Bank=s internet banking service. 


    Okonkwo informed the unidentified Bank employee assisting him that he had never authorized these withdrawals.  While there, Okonkwo asked the Bank to furnish him complete records of his three accounts for the previous two years, replace the illegally taken funds, close these accounts and open new ones, and investigate the incidents.  The Bank employee advised Okonkwo to report the unauthorized transactions to the Houston Police Department.  After reporting this incident to the police, Okonkwo returned to the Bank branch and submitted two forgery affidavit claims to its forgery department.[2] The first of Okonkwo=s two forgery affidavit claims, dated February 18, 2002, included an addendum identifying several allegedly unauthorized items, ranging in date from December 19, 2001 to January 11, 2002.  The bulk of these items were not identified by check number or date paid, although most of them listed to whom they were payable.  However, nothing on this form indicated in which of his accounts these transactions occurred.[3] On the second forgery affidavit claim, dated February 25, 2002, Okonkwo included an account number corresponding to his personal checking account. However, no specific items were identified on this form.

    Around April 1, 2002, Okonkwo received a letter from the Bank=s forgery department notifying him it was denying his claims.[4]  The Bank had been unable to match the items identified on the forgery affidavit claims to any transactions in Okonkwo=s accounts.[5]  However, Okonkwo continued to communicate with the Bank=s forgery department, sending numerous letters between June 2002 and March 2003 exhorting it to investigate his case, return his funds, and provide him with his bank records.[6] He also returned to the Bank=s branch location in August 2003, but did not receive the assistance he desired. 


    On February 13, 2004, Okonkwo filed this lawsuit against the Bank and numerous other defendants,[7] alleging (1) violations of the Deceptive Trade Practices Act (the ADTPA@), (2) common law fraud, (3) negligence and gross negligence, (4) negligent hiring and supervision, (5) breach of contract, (6) agency, and (7) respondeat superior.  The Bank filed a motion for summary judgment, which the trial court granted.  In its interlocutory order granting the summary judgment, the trial court specifically noted that Athe claims of plaintiff against other parties remain pending.@  However, the Bank subsequently filed a motion for severance, which was granted by the trial court.  Thus, the trial court entered final judgment in this severed cause of action.

    II.  Okonkwo=s AProcedural@ Challenges to the Summary Judgment

    As a preliminary matter, we note that several of Okonkwo=s issues seemingly overlap and are poorly articulated.[8] Notwithstanding the difficulties in discerning the issues presented, we identify the following apparent procedural complaints regarding the summary judgment granted in favor of the Bank.  In issues one, eight, and eleven, Okonkwo alleges he did not receive notice of the submission date for the motion, he failed to receive one of the attached exhibits, and the trial court granted the Bank Aunsolicited@ summary judgment on several of Okonkwo=s claims.

    A.        Notice

    In his first issue, Okonkwo protests a lack of notice of the submission date for the summary judgment motion.  The record reflects that Okonkwo was given the required notice of the originally‑scheduled hearing date, and he timely filed a response.  However, he complains that the trial court did not hold the hearing when originally scheduled and instead considered the motion by submission a few days later without any notice to him.

    The summary judgment movant must serve notice of the hearing or submission on opposing counsel at least twenty‑one days before the hearing or submission date.  See Tex. R. Civ. P.  166a(c); Mosser v. Plano Three Venture, 893 S.W.2d 8, 11 (Tex. App.BDallas 1994, no writ).   The non‑movant must file his response not later than seven days prior to the day of hearing.  See Tex. R. Civ. P. 166a(c).  However, lack of notice of a summary judgment hearing is not a jurisdictional defect. See French v. Brown, 424 S.W.2d 893, 894S95 (Tex. 1967).  Rather, lack of notice is a procedural defect that may be corrected by the trial court in response to a timely filed motion for new trial or by an appellate court if the trial court overrules the motion for new trial.  See id. at 894. Therefore, a non-movant must file a motion for new trial to preserve a complaint that he did not receive notice of a summary judgment hearing.  See id.; Smith v. Mike Carlson Motor Co., 918 S.W.2d 669, 672 (Tex. App.BFort Worth 1996, no writ) (citing Lee v. Braeburn Valley W. Civic Ass=n, 786 S.W.2d 262, 263 (Tex. 1990); Tex. R. App. P. 33.1; see also Tanksley v. CitiCapital Commercial Corp., 145 S.W.3d 760, 764 (Tex. App.BDallas 2004, pet. denied); Rios v. Tex. Bank, 948 S.W.2d 30, 33 (Tex. App.BHouston [14th Dist.] 1997, no pet.). Here, Okonkwo did not raise this issue before the trial court in either of the motions for new trial he filed after the summary judgment was granted.  Thus, he has failed to preserve error on this issue. 


    Moreover, Rule 166a does not mandate an oral hearing in all cases.  Goode v. Avis Rent-A-Car, Inc., 832 S.W.2d 202, 204 (Tex. App.BHouston [1st Dist.] 1992, writ denied); Martin v. Cohen, 804 S.W.2d 201, 202S03 (Tex. App.BHouston [14th Dist.] 1991, no writ). Rather, a trial court may rule on a summary judgment motion, without a hearing, on the basis of the written motion, response, and supporting summary judgment evidence.  Martin, 804 S.W.2d at 202S03.  Further, the primary purpose of the notice requirement under Rule 166a(c) is to allow the non-movant to calculate the date on which his response or opposing affidavits are due.  Wortham v. Dow Chem. Co., 179 S.W.3d 189, 197 (Tex. App.BHouston [14th Dist.] 2005, no pet.); Goode, 832 S.W.2d at 204.  Because the trial court considered the motion for summary judgment by submission after the originally‑scheduled hearing date and Okonkwo had timely filed a response, he was not harmed by lack of notice of the submission date.  Cf. Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998)  (holding trial court=s grant of motion for summary judgment without notice of submission to non‑movant was rendered harmless when the trial court subsequently considered the non-movant=s response and reconfirmed its ruling).  We overrule his first issue.

    B.        Receipt of Exhibit

    In his eighth issue, Okonkwo complains that the Bank failed to attach a portion of an exhibit to the copy of the summary judgment motion served on him.  This exhibit consisted of the affidavit of Karen Rincon, the Bank=s corporate representative, which Okonkwo contends he did not receive, and supporting evidence, all of which Okonkwo apparently did receive.[9] Additionally, the affidavit and the supporting evidence were properly filed with the trial court.

    A certificate by an attorney of record is prima facie evidence of the fact of service.  Tex. R. Civ. P. 21a. Moreover, such a certificate creates a rebuttable presumption of service of both the motion and all therein described supporting affidavits and exhibits.  See Costello v. Johnson, 680 S.W.2d 529, 531‑32 (Tex. App.BDallas, 1984, writ ref'd n.r.e.) (AWe hold that the attorney=s certificate which refers to the motion complies with rule 21a in that it is prima facie evidence that not only was notice of the motion itself given but also of all >attached= and described supporting affidavits and exhibits.@).

    The Bank=s motion for summary judgment specifically referred to the Rincon affidavit and outlined its contents in detail.  Thus, the certificate of service included in our record presumptively established that Okonkwo was properly served with the motion and its accompanying exhibits.  In a paragraph labeled AMissing Evidence,@ Okonkwo stated in his response to the Bank=s motion that this affidavit was not enclosed in the copy he received.  However, such an unsworn statement does not rebut the presumption that Okonkwo was properly served with the motion and attached exhibits, including the Rincon affidavit.  See id.  Accordingly, we overrule Okonkwo=s eighth issue. 

    C.        AUnsolicited@ Summary Judgment[lby1] [lby2] 

    In his eleventh point of error, Okonkwo asserts that summary judgment was improper because his claims or causes of action arising out of the Bank=s mishandling of his original claims did not arise until the Bank finally denied all his claims in August 2002. Okonkwo has provided no argument in support of this contention, he did not clearly identify this claim in his live pleadings, and he did not present this argument to the trial court.   However, in the portion of his brief identified in the table of contents as supporting this issue presentedCactually included in the AStatement of Facts@ section of his briefCentitled AUnsolicited Summary Judgment,@ Okonkwo claims that summary judgment was granted on several of his claims Aeven though [the Bank] has never asked for summary judgment on claims arising out of its mishandling of [Okonkwo=s] claims.@  In addition, Okonkwo asserted the following in his summary judgment response:

    Failure to address all causes of actions claimed by [Okonkwo]:

    24.       [Okonkwo] alleged many other causes of actions in his live Amended Petition, which [the Bank] did not even attempt to address, yet it is seeking summary judgment.  For example, [Okonkwo] also alleged common law fraud and breach of contract, among others, which [the Bank] failed to address.

    However, the Bank moved for summary judgment on all of Okonkwo=s claims, including violation of the DTPA, fraud, negligence, and breach of contract.  In its motion, the Bank specifically stated that it was Aentitled to summary judgment that [Okonkwo] take nothing on his claims.@  The Bank further stated that Aeach of [Okonkwo=s] claims is barred@ and that the Bank had Ashown itself entitled to summary judgment on each claim in this lawsuit.@  Thus, we interpret Okonkwo=s complaint as an attack on the specificity of the summary judgment motion because all of Okonkwo=s claims were addressed by the Bank=s motion.[10]

    When a summary judgment is attacked as being vague or lacking specificity, a special exception is required.  Franco v. Slavonic Mut. Fire Ins. Ass=n, 154 S.W.3d 777, 784 (Tex. App.BHouston [14th Dist.] 2004, no pet.); see also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993) (plurality op.) (stating in dictum that Aan exception is required should a non‑movant wish to complain on appeal that the grounds relied on by the movant were unclear or ambiguous@).  The excepting party must obtain a ruling on the special exception to preserve the issue for appeal.  Franco, 154 S.W.3d at 784. Okonkwo did not present this issue to the trial court for ruling; therefore, we cannot consider it on appeal as grounds for reversal.  See id. at 784S85.  Okonkwo=s eleventh issue is overruled.

    III.  Okonkwo=s ASubstantive@ Challenges to the Summary Judgment

    In issues two, three, four, five, six, seven, nine, ten, and twelve, Okonkwo contends there are fact issues precluding summary judgment.  Okonkwo argues that the Bank failed to conclusively establish that:  (1) the reporting requirement for unauthorized withdrawals was shortened from one year to six months; (2) Okonkwo received the relevant monthly bank statements and thus was subject to the notice requirements of the U.C.C.; (3) it had not acted in bad faith or negligently in handling his claims; (4) the statute of limitations barred Okonkwo=s claims; (5) Okonkwo was not a consumer as defined by the DTPA; and (6) the forfeiture of Galatians Group Medical Services Division, Inc.=s corporate status barred his claims.

    A.        Standard of Review

    The movant for a traditional summary judgment must show there are no genuine issues of material fact, and it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).  In deciding whether there is a disputed issue of material fact, every doubt must be resolved in favor of the non-movant and evidence favorable to the non-movant must be taken as true. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004).  A defendant, as movant, is entitled to summary judgment if it (1) disproves at least one element of the plaintiff=s theory of recovery, or (2) pleads and conclusively establishes each essential element of an affirmative defense, thereby rebutting the plaintiff=s cause of action. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).  Once the defendant produces sufficient evidence to establish its right to summary judgment, the burden shifts to the plaintiff to come forward with competent controverting evidence raising a genuine issue of material fact.  Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).  We may affirm the trial court=s summary judgment if any of the theories presented to the trial court are meritorious, preserved for appellate review, and necessary for final disposition of the appeal, including those grounds preserved for review on which the trial court did not rule. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); see also Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996).

    B.        Grounds for Summary Judgment

    In its motion for summary judgment, the Bank asserted the following bases for summary judgment:

    GROUND ONE: Plaintiff failed to comply with the U.C.C. notice requirements.

    GROUND TWO: Plaintiff=s negligence and DTPA claims are barred by limitations, and all claims for all transactions occuring prior to February 11, 2001, are barred by limitations.

    GROUND THREE: Customer negligence. Plaintiff had a duty to review monthly  statements and report unauthorized transactions within thirty (30) days.  His failure to do so bars his claims under the U.C.C.

    GROUND THREE [sic]: Plaintiff is not a Aconsumer@ under the DTPA, and the Abusiness opportunity@ claim of Plaintiff under the DTPA is not viable.

    GROUND FOUR: Plaintiff=s claims for losses on the Galatians corporate account cannot be asserted because the corporation has forfeited its corporate franchise, and plaintiff lacks standing to assert the corporate claims.

    The trial court explicitly granted summary judgment as to grounds one, two, and three.

    C.        Preclusion under the U.C.C.

    In its summary judgment motion, the Bank asserted that the Uniform Commercial Code[11] (the AU.C.C.@) absolutely precluded Okonkwo from asserting his claims in this case because he failed to provide adequate notice to the Bank regarding the unauthorized transactions.  We agree.

    Section 4.406(f) of the U.C.C. states,

    Without regard to care or lack of care of either the customer or the bank, a customer who does not within one year after the statement or items are made available to the customer (Subsection(a)) discover and report the customer=s unauthorized signature on or any alteration on the item is precluded from asserting against the bank the unauthorized signature or alteration.

    Tex. Bus. & Com. Code Ann. ' 4.406(f) (Vernon 2002).  This statutory scheme provides for an allocation of responsibility between the customer and a financial institution according to which party is best able to prevent loss.  See Am. Airlines Employees Fed. Credit Union v. Martin, 29 S.W.3d 86, 92 (Tex. 2000).  Because a customer is Abest situated to detect unauthorized transactions on his own account,@ he bears the burden to exercise reasonable care to discover and report unauthorized transactions.  Id.  A[I]f the bank provides sufficient information, the customer bears the loss when he fails to detect and notify the bank about unauthorized transactions.@  Id.  ASufficient information@ is statutorily defined as a bank Asend[ing] or mak[ing] available to a customer a statement of account showing payment of items for the account. . . .  The statement of account provides sufficient information if the item is described by item number, amount, and date of payment.@  Tex. Bus. & Com. Code Ann. ' 4.406(a).  Furthermore, a bank is not required to return items, such as cancelled checks, with its monthly statements, but must instead provide a telephone number in the monthly statements that the customer may call to request an item or legible copy of an item.  Id.


    In his affidavit attached to his response to the Bank=s motion for summary judgment, Okonkwo averred that the Bank did not Aprovide@ him with Adetailed monthly statements.@  He further stated that the Bank did not Aprovide@ him with cancelled checks from the transactions at issue until he filed suit.  He contends this affidavit established that his statutory  duty to discover and report unauthorized items was not triggered because the Bank did not Aprovide@ him with his banking records.  We disagree.  The plain language of the statute simply required the Bank to Asend or make available@ account statements.  The Bank=s summary judgment evidence established that the Bank regularly mails monthly statements of account to account holders.  These statements of account identify each debit by date, dollar amount, and descriptive information (e.g., check number).  A toll-free customer service number is listed at the top of each statement.[12] Thus, the Bank provided uncontroverted summary judgment evidence that it Asent or made available@ monthly account statements to Okonkwo.  We conclude that Okonkwo therefore had a duty to discover and report unauthorized items to the Bank in a timely fashion. 

    However, Okonkwo asserts that the Adiscovery rule@ or the equitable doctrine of fraudulent concealment should operate to excuse him from his statutory duty to discover and report.  These doctrines generally operate to defer accrual of a cause of action when the statute of limitations would otherwise extinguish a claim.  See S.V. v. R.V., 933 S.W.2d 1, 4S5, 6S7 (Tex. 1996).   Assuming, without deciding, that the Adiscovery rule@ or an assertion of fraudulent concealment would excuse Okonkwo from performing his statutory duty in this situation,[13] he has failed to raise fact issues on either doctrine.

    The Adiscovery rule@ operates to defer accrual when the injury at issue is inherently undiscoverable.  See id. at 7.  AAn injury is inherently undiscoverable if it is by nature unlikely to be discovered within the prescribed limitations period despite due diligence.@  Id.  The type of injury Okonkwo asserts here, i.e., unauthorized withdrawals from his bank account,  is not by nature unlikely to be discovered during the prescribed period considering that the Bank maintained records of his account transactions.  Moreover, the Bank provided competent summary judgment evidence that it mailed Okonkwo=s monthly statements to him during the relevant time period.  Had Okonkwo exercised due diligence, he would certainly have discovered the allegedly unauthorized items during the statutorily prescribed time frame.[14] Accordingly, the discovery rule did not excuse Okonkwo from performing his duty to discover and report the unauthorized transactions.

    As to his assertion that the Bank Aconcealed@ his records from him, fraudulent concealment Ais an equitable doctrine that, when properly invoked, estops a defendant from relying on the statute of limitations as an affirmative defense. . . .@  Casey v. Methodist Hosp., 907 S.W.2d 898, 902 (Tex. App.BHouston [1st Dist.] 1995, no writ) (emphasis added). Estoppel by fraudulent concealment requires a showing that the defendant (1) had actual knowledge of the wrong, (2) a duty to disclose the wrong, and (3) a fixed purpose to conceal the wrong.  See id.  Once a defendant has conclusively established the affirmative defense of limitations,[15] a plaintiff must come forward with proof raising a fact issue regarding the elements of fraudulent concealment.  See id.


    Okonkwo provided no competent summary judgment evidence raising a fact issue regarding the elements of fraudulent concealment.  Specifically, he provided no proof that the Bank had  a fixed purpose in concealing the unauthorized transactions.  Although he stated in his affidavit that the Bank Aconcealed@ his bank records from him and Arefused to produce@ them, such uncorroborated and conclusory statements of his subjective belief are insufficient to create a fact issue.  See Tex. Div.‑Tranter, Inc., 876 S.W.2d at 314. Accordingly, Okonkwo failed to establish the application of the equitable doctrine of fraudulent concealment.  We must therefore consider whether Okonkwo raised a fact issue regarding whether he fulfilled his duty to notify and report the unauthorized items during the statutorily allotted time-frame.[16]

    Okonkwo asserted in his live pleadings that the Bank provided information regarding unauthorized activity on his accounts Aon or about February 13, 2002.@  Thus, construing his pleadings in the light most favorable to Okonkwo, we conclude that he had until February 13, 2003 to report these unauthorized items to the Bank.  Although a report regarding unauthorized items need not be written, the customer must make known to the bank the specific item on which the unauthorized signature appears.  Hatcher Cleaning Co. v. Comerica Bank-Tex., 995 S.W.2d 933, 938 (Tex. App.SFort Worth 1999, no pet.).  General references to possible unauthorized items are not sufficient; both the unauthorized item(s) and the account(s) should be identified.  See id. If there is no genuine issue of material fact regarding the sufficiency of the customer report, summary judgment is appropriate.  See id. at 938.

    The only summary judgment evidence of any Areport@ to the Bank regarding the unauthorized items consisted of the two forgery affidavit claims filed by Okonkwo with the Bank=s forgery department.[17] As detailed above, in one of these claim forms, Okonkwo identified several specific transactions without indicating to which of his accounts the form referred.  In the other, Okonkwo identified an account number without describing any specific transactions.  We conclude that these forms are insufficient to constitute a customer Areport@ as contemplated by the statute.[18] See id. at 938-39.   Because Okonkwo did not discover and report the unauthorized transactions to the Bank within the statutorily allotted one-year time frame, he is  precluded from asserting them against the Bank, regardless of the Bank=s alleged lack of care in handling his claims.[19] Thus, summary judgment was proper on this ground.  We overrule issues two, three, four, five, six, seven, nine, ten, and twelve.

    III.  Conclusion

    We conclude that Okonkwo=s procedural complaints regarding the summary judgment are without merit, and summary judgment was proper based on the Bank=s statutory affirmative defense. Accordingly, we overrule all of Okonkwo=s issues and affirm the judgment of the trial court.

     

     

     

    /s/        Charles W. Seymore

    Justice

     

    Judgment rendered and Memorandum Opinion filed March 15, 2007.

    Panel consists of Chief Justice Hedges and Justices Yates and Seymore.


    [1]  These are the accounts specifically identified by the Bank in the account agreements attached to its motion for summary judgment.  In his live petition, Okonkwo characterizes what is seemingly his joint account with Yvonne C. Okonkwo as a business account in the name of his law firm.  However, because the issue of which accounts form the basis of this lawsuit is not disputed by Okonkwo, we will refer to them as they are identified on the account agreements provided by the Bank.

    [2]  The Bank attached copies of Okonkwo=s forgery affidavit claims to its motion for summary judgment.

    [3]  The forgery affidavit claim form states, AEnter the account number involved in the claim.  You will need to fill out a separate Forgery Affidavit Claim for each account if more than one account is involved.@

    [4]  No copy of this correspondence is included in our record.

    [5]  Copies of account statements for all three of Okonkwo=s accounts for the period covered by his forgery affidavits were attached to the Bank=s motion for summary judgment.

    [6] Copies of these letters were attached to Okonkwo=s response to the Bank=s summary judgment motion.  In these letters, Okonkwo did not identify either the transactions or accounts about which he had concerns, although he referenced the claim number he was assigned.  On November 6, 2003, Okonkwo sent another letter (again, with no account numbers identified) to the Bank=s forgery department, demanding that it forward his bank records to him within thirty days, after which he would file suit.  The record contains no evidence that any of these letters were received by the Bank.

    [7]  The other defendants are not parties to this appeal.

    [8]  Additionally, Okonkwo does not separate the argument section of his brief by issue presented.  Indeed, the headings in his argument section bear little resemblance to the twelve issues he identifies.  Moreover, several of the issues listed in the table of contents direct us to the same page number, and several of these pages actually appear in the AStatement of Facts@ section of his brief.  Thus, it is difficult to determine what arguments he presents in support of his issues.

    [9]  Okonkwo identified and responded to several of the items attached to the Rincon affidavit in his response to the Bank=s summary judgment motion.

    [10]  Okonkwo has not asserted in the trial court or on appeal that the grounds relied on by the Bank in its summary judgment motion are not sufficient to defeat all his claims.

    [11]  Title 1 of the Texas Business and Commerce Code, including the sections specified in the Bank=s summary judgment motion, may be cited as the Uniform Commercial Code.  Tex. Bus. & Com. Code Ann. ' 1.01(a) (Vernon Supp. 2006).

    [12]  In addition, the Bank established that it makes available copies of account statements and other records through its customer service department.  Okonkwo produced no evidence that he attempted to obtain copies of his statements from the Bank=s customer service department.  He states in his affidavit that the Bank Aconcealed@ his bank records from him and Arefused to produce@ them.  These statements are conclusory, and thus insufficient to create a fact issue.  See Tex. Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994).

    [13]  Okonkwo has cited, and we have found, no authority that these doctrines would operate to defer a bank customer=s statutorily imposed duty to discover and report unauthorized items.  Indeed, application of these equitable doctrines in this situation would seemingly subvert the Legislature=s decision to allocate responsibility between the customer and a financial institution according to which party is best able to prevent loss.  See Am. Airlines Employees Fed. Credit Union, 29 S.W.3d at 92. 

    [14]  In fact, Okonkwo actually discovered at least some of these transactions during the prescribed notification period.  The Bank provided uncontroverted summary judgment evidence that the date of the most recent transaction Okonkwo disputed was January 11, 2002.  Okonkwo states in his live pleadings that he discovered the problems with his accounts Aon or about February 13, 2002.@ 

    [15]  Generally, Aa cause of action accrues when a wrongful act causes some legal injury, even if the fact of injury is not discoverable until later, and even if all resulting damages have not yet occurred.@  S.V., 933 S.W.2d at 4. 

    [16]  The Bank also asserted in its summary judgment motion that the parties had contractually shortened the one-year statutory notice time period to six months.  Such contractual arrangements shortening the notice period may be permissible.  See Am. Airlines Employees Fed. Credit Union, 29 S.W.3d at 96.  However, we need not consider whether the one-year notice period was reduced because, as next explained, Okonkwo failed to establish he provided the requisite notice to the Bank at all.

    [17]  Our record contains no indication that Okonkwo offered any information regarding specific unauthorized transactions in any of his accounts, such as dates or amounts of any unauthorized items, other than that provided in his forgery affidavit claims. Further, our record includes no competent summary judgment evidence establishing that he did so.

    [18]  Moreover, Okonkwo was aware in early April 2002 that the Bank had denied his forgery claims.  It is undisputed that the most recent unauthorized transaction occurred on January 11, 2002.  Thus, Okonkwo was aware of the Bank=s difficulty in identifying any unauthorized transactions through the information he had provided it within the allotted time period for reporting such transactions.  He provided no evidence of any attempt made to clarify his claims or otherwise Areport@ these unauthorized transactions to the Bank.

    [19] Okonkwo presents no argument or authority that this preclusion should not operate to bar all his claims, including those that allegedly arose out of the Bank=s purported mishandling of his claims.  On its face, the statute relieves both a customer and a bank from liability for a lack of care.  See Tex. Bus. & Com. Code Ann. ' 4.406(f).  Moreover, although Okonkwo asserts the Bank did not establish it acted in Agood faith@ in paying the items, good faith is presumed, and the customer bears the burden of proving the contrary.  See Canfield v. Bank One, 51 S.W.3d 828, 837 (Tex. App.STexarkana 2001, pet. denied).

     [lby1]Spacing errors

     [lby2]C.        AUnsolicited@ Summary Judgment