Laverne Rall Gunderson v. Wells Fargo Bank, N.A. ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-171-CV
LAVERNE RALL GUNDERSON APPELLANT
AND APPELLEE
V.
W ELLS FARGO BANK, N.A. APPELLEE
AND APPELLANT
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FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Laverne Rall Gunderson and W ells Fargo Bank, N.A. both filed appeals from
a final judgment. The final judgment incorporated the trial court’s interlocutory
orders granting partial summary judgment in favor of W ells Fargo, denying
Gunderson’s motion for summary judgment, and awarding W ells Fargo attorney’s
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 See Tex. R. App. P. 47.4.
fees. In two issues, Gunderson argues that the trial court erred by granting W ells
Fargo’s motion for summary judgment while denying hers and that the trial court
erred by awarding attorney’s fees to W ells Fargo. In one issue, W ells Fargo argues
that the trial court erred by placing a limitation on the manner in which W ells Fargo
could collect upon the attorney’s fees judgment against Gunderson. W e will affirm.
II. B ACKGROUND
Until recently, Gunderson, a resident of Crowley, Texas, maintained both a
savings account and a checking account with W ells Fargo. In late March 2008, the
California State Board of Equalization (“Board”) sent a notice of levy to W ells Fargo
seeking payment of funds from Gunderson’s bank accounts. The notice of levy
related to alleged unpaid taxes owed by Gunderson’s husband in California. The
levy also included an accompanying affidavit by one of the Board’s tax compliance
specialists attesting to the tax levy’s authenticity. At the time of the notice,
Gunderson’s bank account balances totaled $6,839.31.
In response to the notice of levy, W ells Fargo debited Gunderson’s accounts
and sent all funds in the accounts to the Board. Additionally, W ells Fargo forwarded
the notice of levy to Gunderson, notified her that her accounts had been debited, and
informed her that if she had any objections to the levy, she should contact the Board.
W ells Fargo then charged Gunderson a $100 fee against her accounts relating to
its response to the notice of levy.
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Gunderson filed a breach of contract claim against W ells Fargo. In her
petition, Gunderson argued that the Board did not have legal authority to debit
monies from her accounts held in her name, that the Board did not have jurisdiction
over her husband to pursue a tax debt, and that W ells Fargo had breached its
contract with her by refusing her demands for the funds and paying them to the
Board. Furthermore, Gunderson argued that any conduct by W ells Fargo based on
the Board’s request is not excused. Gunderson filed a motion for summary
judgment on her breach of contract claim and also asked for attorney’s fees.
W ells Fargo responded with its own motion for summary judgment,
contending, among other arguments, that it was entitled to act upon the notice of
levy under the consumer account agreement between itself and Gunderson.
Furthermore, W ells Fargo alleged that, per the agreement, it was entitled to
attorney’s fees incurred in responding to Gunderson’s lawsuit. The consumer
account agreement states in part:
Legal Process. The Bank may accept and act on any legal process
that it believes is valid, whether served in person, by mail or by
electronic notification, at any location of the Bank. “Legal Process”
includes a levy, garnishment or attachment, tax levy or withholding
order, injunction, restraining order, subpoena, search warrant,
government agency request for information, forfeiture, seizure, or other
legal process relating to your Account. Any such legal process is
subject to the Bank’s security interest and right of setoff. The Bank will
not notify you of a grand jury subpoena affecting you or your Account.
Any fees or expenses (including attorney’s fees and expenses) the
Bank incurs in responding to any such legal process may be charged
against any account you maintain with the Bank.
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The trial court granted W ells Fargo’s summary judgment motion pertaining to
its defense that it was entitled to act upon the notice of levy. The trial court denied
Gunderson’s motion for summary judgment. The trial court then held a hearing
regarding the propriety of W ells Fargo recovering attorney’s fees. Neither party
requested that a reporter’s record be made of this hearing. The trial court found that
the consumer account agreement entitled W ells Fargo to recover attorney’s fees
relating to this lawsuit but limited the manner in which those fees could be collected
to charging against Gunderson’s accounts at W ells Fargo only. This appeal
followed.
III. D ISCUSSION
A. Wells Fargo was contractually entitled to respond to the levy
In her first issue, Gunderson argues that the trial court erred by granting W ells
Fargo’s summary judgment and denying her own. Specifically, Gunderson argues
that because a California court eventually found that California, and thus the Board,
did not have personal jurisdiction over her husband to pursue unpaid taxes, W ells
Fargo wrongfully paid monies from her accounts to the Board. Furthermore,
Gunderson argues that the consumer account agreement states that the laws of
Texas control over any agreement between herself and W ells Fargo; thus, W ells
Fargo’s reliance on the notice of levy, predicated on California law, would be
erroneous.
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W ells Fargo responds that Gunderson’s argument pertaining to the
properness of its response to the notice of levy—and what laws apply to the
levy—are unavailing because the consumer account agreement specifically provides
that W ells Fargo may act upon “any legal process that it believes is valid” and that
the agreement specifically includes W ells Fargo’s right to respond to a tax levy.
W ells Fargo also argues that it was legally required to comply with the levy. W e
agree with W ells Fargo that it was contractually entitled to respond to the tax levy.
1. Standard of review
In a summary judgment case, the issue on appeal is whether the movant met
the summary judgment burden by establishing that no genuine issue of material fact
exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ.
P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W .3d 844,
848 (Tex. 2009). W e review a summary judgment de novo. Mann Frankfort, 289
S.W .3d at 848.
W e take as true all evidence favorable to the nonmovant, and we indulge
every reasonable inference and resolve any doubts in the nonmovant’s favor.
20801, Inc. v. Parker, 249 S.W .3d 392, 399 (Tex. 2008); Sw. Elec. Power Co. v.
Grant, 73 S.W .3d 211, 215 (Tex. 2002). W e consider the evidence presented in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding evidence contrary to the
nonmovant unless reasonable jurors could not. Mann Frankfort, 289 S.W .3d at 848.
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W e must consider whether reasonable and fair-minded jurors could differ in their
conclusions in light of all of the evidence presented. See Wal-Mart Stores, Inc. v.
Spates, 186 S.W .3d 566, 568 (Tex. 2006); City of Keller v. Wilson, 168 S.W .3d 802,
822–24 (Tex. 2005).
The summary judgment will be affirmed only if the record establishes that the
movant has conclusively proved all essential elements of the movant’s cause of
action or defense as a matter of law. City of Houston v. Clear Creek Basin Auth.,
589 S.W .2d 671, 678 (Tex. 1979).
W hen a trial court’s order granting summary judgment does not specify the
ground or grounds relied on for its ruling, summary judgment will be affirmed on
appeal if any of the theories presented to the trial court and preserved for appellate
review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W .3d 211,
216 (Tex. 2003); Star-Telegram, Inc. v. Doe, 915 S.W .2d 471, 473 (Tex. 1995).
W hen the trial court’s judgment rests upon more than one independent ground or
defense, the aggrieved party must assign error to each ground, or the judgment will
be affirmed on the ground to which no complaint is made. Scott v. Galusha, 890
S.W .2d 945, 948 (Tex. App.—Fort W orth 1994, writ denied).
W hen both parties move for summary judgment and the trial court grants one
motion and denies the other, the reviewing court should review both parties’
summary judgment evidence and determine all questions presented. Mann
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Frankfort, 289 S.W .3d at 848. The reviewing court should render the judgment that
the trial court should have rendered. Id.
2. The consumer account agreement
A deposit contract between a bank and an account holder is considered a
contract in writing for all purposes. Tex. Fin. Code Ann. § 34.301(a) (Vernon Supp.
2009). The elements of a breach of contract claim are (1) a valid contract,
(2) performance or tendered performance by the plaintiff, (3) breach by the
defendant, and (4) damages sustained by the plaintiff as a result of the breach.
Harris v. Am. Prot. Ins. Co., 158 S.W .3d 614, 622–23 (Tex. App.—Fort W orth 2005,
no pet.). In suits to recover deposits, the bank has the burden of proving payment
under authority from the depositor and is obligated to pay out funds on deposit
according to the directions of the depositor. Mesquite State Bank v. Prof’l Inv. Corp.,
488 S.W .2d 73, 75 (Tex. 1972). To this end, a bank is entitled to rely on its deposit
agreement when determining to whom it is indebted. Bank One, Tex., N.A. v.
Sunbelt Sav., F.S.B., 824 S.W .2d 557, 557 (Tex. 1992); Whitney Nat’l Bank v.
Baker, 122 S.W .3d 204, 207 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
In this instant case, Gunderson and W ells Fargo have a consumer account
agreement that specifically entitles W ells Fargo to “act on any legal process” it
believes to be valid. In the agreement, a tax levy is defined as a legal process. After
receiving the tax levy—and accompanying affidavit by one of the Board’s tax
compliance specialists attesting to the tax levy’s authenticity—W ells Fargo acted
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upon the tax levy. W ells Fargo was entitled to rely upon the consumer account
agreement and satisfied its burden of proving payment under Gunderson’s authority.
Thus, the trial court did not err by finding that W ells Fargo met its summary judgment
burden by establishing that no genuine issue of material fact exists that it made
payment to the Board under Gunderson’s authority and that Wells Fargo is entitled
to judgment as a matter of law. See Tex. R. Civ. P. 166a(c). W e overrule
Gunderson’s first issue.
B. Attorney’s fees and Wells Fargo’s $100 fee
In her second issue, Gunderson argues that the trial court erred by awarding
attorney’s fees to Wells Fargo. Gunderson essentially makes two arguments as to
why she believes W ells Fargo is not entitled to recover attorney’s fees in this case.
First, Gunderson argues that there is no record demonstrating sufficient evidence
to support the awarding of attorney’s fees to W ells Fargo.
In her briefing to the trial court regarding attorney’s fees—after the trial court
had granted W ells Fargo’s summary judgment and in anticipation of the pending
hearing regarding attorney’s fees—Gunderson argued only that W ells Fargo was not
entitled to attorney’s fees under the consumer account agreement. Gunderson did
not complain of a lack of evidence supporting Wells Fargo’s attorney’s fees nor did
Gunderson object to the upcoming hearing on attorney’s fees. Furthermore,
Gunderson did not file any post-judgment motions bringing to the trial court’s
attention any alleged error in the evidence supporting the trial court’s awarding W ells
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Fargo’s attorney’s fees. As such, Gunderson has not preserved this alleged error.
See Reagan Nat’l Adver. of Austin, Inc. v. Capital Outdoors, Inc., 96 S.W .3d 490,
497 (Tex. App.—Austin 2002, pet. granted, judgm’t vacated w.r.m.) (waiver where
party failed to complain about insufficiency of evidence at hearing on attorney’s fees
and did not file a motion for a new trial or any other post-judgment motion bringing
its complaint to the trial court’s attention). But Gunderson did complain about the
propriety of W ells Fargo being entitled to attorney’s fees under the consumer
account agreement—her second argument under this issue. Therefore, we turn to
the question of whether W ells Fargo was entitled to attorney’s fees under the
consumer account agreement.
Under Texas statutory law, a party may recover reasonable attorney’s fees
from an individual or corporation, in addition to the amount of a valid claim and costs,
if the claim is for breach of an oral or written contract. See Tex. Civ. Prac. & Rem.
Code Ann. § 38.001(8) (Vernon 2008). The phrase in the statute which reads “in
addition to the amount of a valid claim” implies that a party must first have been
awarded damages before it may be awarded attorney’s fees. Green Int’l v. Solis,
951 S.W .2d 384, 390 (Tex. 1997); State Farm Life Ins. Co. v. Beaston, 907 S.W .2d
430, 437 (Tex. 1995). Therefore, generally, attorney’s fees may not be recovered
for successfully defending a breach of contract claim. Mustang Pipeline Co. v.
Driver Pipeline Co., 134 S.W .3d 195, 201 (Tex. 2004).
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But parties to a contract may also recover attorney’s fees if they arrange for
such recovery as a contractual term. Alma Group, L.L.C. v. Palmer, 143 S.W .3d
840, 845 (Tex. App.—Corpus Christi 2004, pet. denied) (citing New Amsterdam Cas.
Co. v. Tex. Indus., Inc., 414 S.W .2d 914, 915 (Tex. 1967)). The parties to the
contract may create their own terms, which need not correspond to chapter 38 of the
civil practice and remedies code. See Wayne v. A.V.A. Vending, Inc., 52 S.W .3d
412, 417 (Tex. App.—Corpus Christi 2001, pet. denied) (citing One Call Sys., Inc.
v. Houston Lighting & Power, 936 S.W .2d 673, 676 (Tex. App.—Houston [14th Dist.]
1996, writ denied)). The parties may agree to terms for the recovery of fees that are
either more or less liberal than the terms presented in chapter 38. Wayne, 52
S.W .3d at 417–18. In such cases, it is the language of the contract, not the statute,
that governs. Twelve Oaks Tower I, Ltd. v. Premier Allergy, Inc., 938 S.W .2d 102,
118 (Tex. App.—Houston [14th Dist.] 1996, no writ). Furthermore, it is the language
of the agreement itself—not the present interpretation of the parties—that
determines the intent of the parties, and the agreement must be enforced as written.
Pegasus Energy Group, Inc. v. Cheyenne Petroleum Co., 3 S.W .3d 112, 121 (Tex.
App.—Corpus Christi 1999, pet. denied).
W e agree with W ells Fargo that it was entitled to rely upon the consumer
account agreement in seeking attorney’s fees in addition to charging Gunderson a
$100 fee for responding to the levy. The agreement specifically states, “Any fees or
expenses (including attorney's fees and expenses) the Bank incurs in responding to
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any such legal process may be charged against any account you maintain with the
Bank.” The phrase “[a]ny fees or expenses” contemplates that there could be both
fees and expenses—including attorney’s fees. Thus, this provision serves as the
contractual basis for the $100 charge against Gunderson and the trial court’s
determination that W ells Fargo was entitled to attorney’s fees as a result of
responding to Gunderson’s breach of contract claim. Therefore, we overrule
Gunderson’s second issue in its entirety.
C. Wells Fargo is limited in the manner by which it may collect the
contracted-for attorney’s fees
W e now address W ells Fargo’s sole issue on appeal—whether the trial court
erred by limiting the manner in which W ells Fargo could collect its attorney’s fees.
W e conclude that the trial court was correct in limiting W ells Fargo’s ability to collect
on the attorney’s fees by only charging against an account Gunderson maintains at
a W ells Fargo bank.
By the consumer account agreement’s own terms, W ells Fargo was entitled
to collect attorney’s fees it incurred “responding to any such legal process.” The
agreement further states that such fees “may be charged against any account you
maintain with the Bank.” Thus, W ells Fargo contracted specific language detailing
the only manner in which it could collect attorney’s fees once it responded to a legal
process. Our text-based construction of this agreement is consistent with the
principle of expressio unius est exclusio alterius, meaning that the naming of one
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implies the exclusion of others. See CKB & Assocs., Inc. v. Moore McCormack
Petroleum, Inc., 734 S.W .2d 653, 655 (Tex. 1987) (explaining doctrine of expressio
unius est exclusio alterius); see also Mid-Century Ins. Co. of Tex. v. Kidd, 997
S.W .2d 265, 273 (Tex. 1999) (same). This maxim applies perfectly to the consumer
account agreement at issue in this case. By its terms, the agreement covers only
one manner by which W ells Fargo is entitled to collect attorney’s fees for responding
to the legal process it was faced with—the tax levy sent to it by the Board. By
specifically including this manner only—and purposely excluding all other manners
of pursuing fees—the parties in this case contracted the only manner by which W ells
Fargo could collect its fees (including attorney’s fees) incurred in responding to this
legal process. Thus, we hold that the trial court did not err by limiting W ells Fargo’s
ability to collect on the attorney’s fees by only charging against an account
Gunderson maintains at W ells Fargo. W e overrule W ells Fargo’s sole issue.
IV. C ONCLUSION
Having overruled both of Gunderson’s issues and having also overruled W ells
Fargo’s sole issue, we affirm the trial court’s judgment.
BILL MEIER
JUSTICE
PANEL: W ALKER, MCCOY, and MEIER, JJ.
DELIVERED: July 1, 2010
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