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  • Affirmed and Majority and Concurring Opinions filed July 10, 2003

    Affirmed and Majority and Concurring Opinions filed July 10, 2003.

     

     

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    NO. 14-02-00480-CV

    ____________

     

    TOM W. FETTER ON BEHALF OF HIMSELF and

    ALL OTHER SIMILARLY SITUATED INDIVIDUALS IN TEXAS, Appellant

     

    V.

     

    WELLS FARGO BANK TEXAS, N.A., f/k/a NORWEST BANK TEXAS, N.A., and WELLS FARGO SERVICES, INC., f/k/a NORWEST SERVICES, INC., Appellees

     

      

     

    On Appeal from the 268th District Court

    Fort Bend County, Texas

    Trial Court Cause No. 113,790

     

      

     

    M A J O R I T Y   O P I N I O N

    Appellant Tom W. Fetter sued appellees Wells Fargo Bank Texas, N.A., f/k/a Norwest 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).[1]  The lawsuit, in which Fetter sought only a declaratory judgment and permanent injunctive relief, arose from Wells Fargo’s practice of posting checks from the highest dollar amount to the lowest dollar amount, a practice which Fetter contends increases the fees Wells Fargo collects for checks returned for insufficient funds (“NSF fees”).  Despite stating there were factual issues about Wells Fargo’s good faith in instituting the practice, the trial court concluded the express provisions of the UCC and the Account Agreement prevailed and granted Wells Fargo’s motion for summary judgment, dismissing Fetter’s claims with prejudice.[2]

    In this case of first impression, we agree that the express language of the Account Agreement and UCC section 4.303(b),[3] preclude Fetter’s claims as a matter of law. Accordingly, we affirm.

    DISCUSSION[4]

    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, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952).  The movant for summary judgment has the burden to show there is no genuine issue of material fact and it is entitled to judgment as a matter of law.  Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).  When deciding whether there is a disputed material fact issue precluding summary judgment, the appellate court must take as true all evidence favorable to the non‑movant.  Id. at 548B49.  The reviewing court must indulge every reasonable inference in favor of the non‑movant and resolve any doubts in its favor.  Id. at 549.

    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, 57 S.W.3d 499, 503 (Tex. App.CHouston [14th Dist.] 2001, no pet.).  Traditional summary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiff’s theories of recovery, or pleads and conclusively establishes each element of an affirmative defense.  Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).

    Because the propriety of summary judgment is a question of law, we review the trial court=s decision de novo.  Brown v. Blum, 9 S.W.3d 840, 844B45 (Tex. App.CHouston [14th Dist.] 1999, pet. dism’d w.o.j.).  Similarly, matters of statutory construction are generally legal questions, subject to de novo review.  See State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002).

    The Live Pleadings and the Summary Judgment Proof

    In his live pleadings, Fetter characterized his cause of action as one for “breach of contract and breach of U.C.C. duty of good faith.”  He sought a judgment declaring (1) Wells Fargo posts checks from highest to lowest dollar amount for the sole purpose of increasing the NSF fees charged to customers, (2) this practice of posting to increase NSF fees is “illegal and improper,” (3) this practice violates Wells Fargo’s good faith obligations under the UCC, and (4) Wells Fargo should be permanently enjoined from this practice.  He also sought a permanent injunction prohibiting Wells Fargo from continuing the practice.[5]  Fetter alleged Wells Fargo’s practice of posting checks from high to low “was not done for any legitimate business purpose, and was only instituted for the sole purpose of maximizing NSF fees charged to [Wells Fargo’s] customers, including the Plaintiff, in violation of Defendants’ duty of good faith pursuant to ' 4.303 and ' 1.203 of the Uniform Commercial Code.”  Fetter further alleged that, by failing to perform its duties in good faith, Wells Fargo breached the Account Agreement, which Wells Fargo contends governs its relationship with Fetter.

    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 because (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 Y has been the agreement governing all consumer 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 against 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 response 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. ' 4.303 state bar committee cmt. (Vernon 2002). In support of his response, Fetter attached, among other documents, Wells Fargo’s responses to interrogatories, in which Wells Fargo stated the practice of posting checks from high to low was based on several factors, including (1) assuring customers their larger, and potentially more important checks (like mortgage and rent payments) will be paid before other checks, (2) potential increase in bank revenues from the generation of fees, and (3) the common use of the procedure in the banking industry.

    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., 76 S.W.3d 575, 581 (Tex. App.CHouston [14th Dist.] 2002, pet. denied).  We presume the legislature intended the plain meaning of the words it used.  Id. If possible, we must ascertain the legislature’s intent from the language of the statute and not resort to extraneous matters for an intent not stated in the statute.  Id.  When interpreting a statute, we consider the entire act, its nature and object, and the consequence that would follow from each construction.  Id.  We must reject any statutory interpretation that defeats the legislative purpose.  Id.

    Under the Code Construction Act, we are required to construe uniform acts included in a code “to effect its general purpose to 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, 836 S.W.2d 151, 153B54 (Tex. 1992) (citing out-of-state case in construing UCC provision). Although the Official UCC Comments following the code provisions are not law, they are persuasive authority concerning interpretation of the statutory language.  HRN, Inc. v. Shell Oil Co., 102 S.W.3d 205, 212 n.5 (Tex. App.CHouston [14th Dist.] 2003, pet. filed); see Lockhart Sav. & Loan Ass=n v. RepublicBank Austin, 720 S.W.2d 193, 195 (Tex. App.CAustin 1986, writ ref’d n.r.e.).  With these principles in mind, we turn now to the statutory and contractual provisions at issue in the present case.

    Statutory and contractual 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 cases, 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; and other 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).[6]

    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 obligation 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 act 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 cites.

    As support for his contention that we view this comment as persuasive authority, Fetter cites Destec Energy Inc. v. Houston Lighting & Power Co., 966 S.W.2d 792, 795 n. 3 (Tex. App.CAustin 1998, no pet.).  The Destec court, however, was analyzing a section of the Texas Revised Partnership Act (TRPA), and the court specifically observed that the comment at issue in that case was virtually identical to the bill analysis presented to the  legislature for its use in considering enactment of the statute the appellate court was construing.  Id. The TRPA, unlike the UCC, has no Official Comments.  The only comments are the Bar Committee Comments, and these Comments carry some weight because they legislature had them when it enacted the TRPA.

    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 order.”  In fact, the legislative history suggests otherwise, indicating the language permitting a bank to post items in any order predated the Bar Committee’s comment by three decades.  See Act of May 19, 1965, 59th Leg. R.S., ch. 721, ' 4-303, 1965 Tex. Gen. Laws 1, 96 (stating “items may be … paid  … in any order convenient to the bank) (subsequently codified in Texas Business and Commerce Code and amended; current version at Tex. Bus. & Com. Code Ann. ' 4.303 (Vernon 2002)).  Cf. Daryl B. Robertson, Report of the Commercial Code Committee of the Section of Business Law of the State Bar of Texas on Revised UCC Articles 3 and 4, 47 Baylor L. Rev. 427, 499B500 (1995) (date of which suggesting comment was not before the legislature until 1995, when the 74th Legislature deleted the words “convenient to the bank” by the Act of May 28, 1995, 74th Leg., R.S., ch. 921, ' 4, sec. 4.303, 1995 Tex. Gen. Laws 4582, 4638).  Because the State Bar Committee Comment was not before the legislature when it enacted the language permitting a bank to pay items “in any order,” we do not view it as persuasive in analyzing the issue in the present case.

    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 plaintiff’s] claim for damages.”  N. Nat. Gas Co. v. Conoco, Inc., 986 S.W.2d 603, 606B07 (Tex. 1998).  As the Corpus Christi Court had previously explained, the UCC “duty of good faith and fair dealing is aimed at making effective the agreement’s promises.” Adolph Coors Co. v. Rodriguez, 780 S.W.2d 477, 482 (Tex. App.CCorpus Christi 1989, writ denied), cited with approval in N. Nat. Gas, 986 S.W.2d at 606.  Moreover, if the factfinder may write into a contract other terms it believes are fair under the circumstances, any contract is subject to being rewritten to better suit the court’s or the jury’s view of what the parties should in “good faith” have included in the agreement, regardless of what the parties actually did or did not provide.  Id. at 482.  As discussed above, in the present case, Wells Fargo included within the Account Agreement the specific provision that Wells Fargo could, if it chose, “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, however, points to La Sara Grain Co. v. First National Bank of Mercedes, as “instructive.”  See 673 S.W.2d 558 (Tex. 1984).  La Sara involved construction of UCC section 4.406.  As the La Sara court explained regarding the version of section 4.406 then in effect: 

    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 561B62 (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 provisions at Tex. Bus. & Com. Code Ann. ' 4.406 (Vernon 2002)).  Thus, section 4.406 is a comprehensive section setting forth a customer=s duties and affording the bank protection from loss, except when the bank does not act in good faith in paying a check on an unauthorized signature.

    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, 673 S.W.2d at 561.  Harold Jones, La Sara’s general manager, was one of the authorized signatories on the account.  Id. First National subsequently honored checks bearing only Jones’s signature.  After firing Jones, La Sara discovered he had embezzled over $300,000.  Id. La Sara contended the bank actually knew Jones’s signature alone was insufficient, and, in paying the checks anyway, did not act in good faith.  Id. at 563.  The bank president testified at trial that the bank would know of anything it had in its files.  Id. La Sara=s corporate resolution specifying the two-signature requirement was in the bank’s files.  Id.

    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.

    Case 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., 768 N.E.2d 322 (Ill. App. Ct. 2002) (on review of order granting motion to dismiss complaint); Daniels v. PNC Bank, N.A., 738 N.E.2d 447 (Ohio Ct. App. 2000) (same); Smith v. First Union Nat’l Bank of Tenn., 958 S.W.2d 113 (Tenn. Ct.  App. 1997) (same).[7]  In Hill, the court rejected an argument virtually identical to Fetter’s argument in this case: 

    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.

    …

    Although defendants’ account agreements do not specify the posting order that 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 themCas 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 meaning 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, 768 N.E.2d at 326B27.[8]

     

    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 which 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.

     

     

    /s/        John S. Anderson

    Justice

     

     

     

     

    Judgment rendered and Majority and Concurring Opinions filed July 10, 2003.

    Panel consists of Justices Anderson, Fowler, and Seymore. (Fowler, J., concurring.)


    [1]  Although Fetter brought the lawsuit as a class action, the trial court never ruled on Fetter’s motion to certify the class.

    [2]  The trial court and the parties refer to Wells Fargo’s Consumer Account Agreement variously as “the contract,” the ADeposit Account Agreement,” the ADepositor Agreement,@ and the “Deposit Contract.”  We  refer to the document as the “Account Agreement.”

    [3]  See Tex. Bus. & Com. Code Ann. ' 4.303(b) (Vernon 2002).

    [4]  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.

    [5]  At oral argument, Fetter’s counsel characterized the lawsuit as one seeking only injunctive relief.

    [6]  We note Fetter seeks injunctive relief.  Injunctive relief is an equitable remedy, and the complaining party must come into court with clean hands.  See Landry=s Seafood Inn & Oyster Bar v. Wiggins, 919 S.W.2d 924, 927 (Tex. App.CHouston [14th Dist.] 1996, no writ).  Here, it would appear Fetter wrote checks exceeding the available balance in his account.

    [7]  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., 958 S.W.2d 113, 117 (Tenn. Ct. App. 1997).  The Hill court cited Smith.  Hill v. St. Paul Fed. Bank for Sav., 768 N.E.2d 322, 326 (Ill. App. Ct. 2002)

    [8]  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).