Art & Frame Direct, Inc. v. Dallas Market Center Operating, LP and Wachovia Bank

i l F IS H) in p:rt, R FM I)K I), F Ft k l in p;trt I )pinion Fited September
I , 201 2.
h 11w
(nitrt ti
.FiftI! Thtrct of ii Ja[1ai
No. 05—I 0-01471 -CV
A WE & F’RANI K 1)1 RKCT, INC., ppcIbn
t
I)li AS 1\RKIT CENTKR v
1
oII’I
K N(R ;, L.P. NI)
\V%.CIlOVI I
NK, N.., ppelIecs
1
)ii ()pe1I froni the I 60th .iII(liciaL District
Court
1)allas Con n tv, I’exas
[rhil Con rt Cause No. I)C—09—095 16—Il
OPINION
I elore Justices Murphy, I’i Ilinore, and Mye
rs
)pinion By Justice Murphy
Art & Frame I )irect, Inc. (Art & Frame) appeals
the summary judgnicnt entered in lavor ol
[)allas Market (enter Operating, L.P., allowing
the garnishment ot hinds transl’erred purs
uant to a
zero balance account areeinent liom Art & Fram
e’s master account to satisly Dallas Mark
et’s
)udgment against Art & Frame Direct/Timeless
Industries ( Ieorgia, Inc. (Debtor). We
reverse and
mi mind that portion o I the final udement.
HACKCROUNL)
Ait & lme had a zero balance account
agreement with \Vachovia Bank, N.A. that
allowed
the bank to transter lunds trom Art & Frame’s
master account number 248 to cover chec
ks (Irawn
‘.11 .lesisia:iitsl ieni balance accounts. One ‘t those
accounts iuambered 5706 was l)ehtor’s business
I )aIla Market obtained a delimit judgment again
st Debtor on June 3, 2tMJ9. Not long alter
the judgment became final, I )allas Market tiled an
application fir post—judgment writ ofgarnis
hment
against Wachovia on July 30, 2009. Wachovia
was served with the writ the next day, mak
ing its
answer that August 24, 2009. Wachovia filed
an answer on August 17. stating that it belie
ved
account 5706 nndcr the title “Timeless Industries”
might be l)ebtor’s account. It also identified
three
additional accounts held by An & Frame with
a separate tax identification number from the
one
designated tor account 5706. Wachovia stated that
one of those accounts, numbered 2488. was
the
parent account to account 5706. As part of its answ
er, Vachovia sought clarification of whet
her
I )allas Market contended Art &. Frame was the
judgment debtor and requested that the cour
t
(letemune the issue. Wachovia set aside the sum
of $252,111.55 in a general ledger account
in
response to the first writ, which amount was comprise
d in part of $240,000 Wachovia transferre
d
from a line ol credit connected to Art & Frame’s
account 2488.
Debtor did not contest the garnishment and
did not appear in the proceeding. Art & Fram
e
filed a plea in intervention on August 21, stating
that Wachovia had impounded its accounts
and
seeking dissolution of the writ of garnishment.
It filed a separate motion to dissolve the wri
t
Upon receipt of Art & Frame’s intervention, l)alla
s Market immediately sought accelerated
discovery and continuance of the hearing on Art &
Frame’s motion to dissolve. It also filed a seco
nd
application br writ of garnishment on August3
1, naming Art & Frame as a third party hold
ing finds
nominally fir Debtor. That writ was served on Wae
hovia on September 1.
The trial court dissolved the tirst writ of garnishm
ent as to Art & Frame’s account 2248 on
September 10. 2009, hut denied the motion to
dissolve with respect to account 5706 and
the
.7...
S232. Ill •%5 i1 aside and held by Wachovia. etler some disco
very, l)allas Market and Wachovia
both hint tra.lition:il motions br summary
judgment. l)allas Market claimed entitleme
nt to the
$252. 111.55. Wachovia claimed entitlement to its
attorneys lees incurred in responding to the
writs
of garnishment. Ihe trial court granted Wachovi
a’s motion in part, awarding it attorney’s
fees of
$26.077.15 to he paid from the blinds set aside
by Wachovia in response to the writs of garn
ishment
the trial court also granted 1)allas Market’s moti
on in part. awarding it the sum of $226,033.80
remaining alter deduction of the attorney’s fees
award 1mm the original $252,111.55 held by
Waehovma.
Art & Frame appeals fmm the tinal judgment enter
ed in Ilivorof Dallas Market on September
29. 20 It). which incorporated the prior summary
-judgment nilin gs. Although Wachovia is named
as an appellee, it has not appeared in this case. The
trial court’s niling on Wachovia’s motion is not
in issue.
DISCUSSION
Art & Frame presents one issue on appeal—whether
the trial court erred in granting Dallas
Market’s summary-judgment motion. It argues
the trial court erred by awarding funds from
an
account ‘not of the judgment Debtor.” It desc
ribes Art & Frame and Debtor as two separate
and
distinct entities and argues Dallas Market’s plead
ings do not allege alter ego. single busi
ness
enterprise, or any claims that would allow the
trial court to treat the entities as one and the
same.
It claims the summary-judgment evidence shows
that at the times the writs of garnishment were
served, l)ebtor had no funds in Art & Frame’s
accounts and Art & Frame was not holding
hinds
belonging to Debtor. It asserts the zero balance
agreement allowed only for transfer of fund
s from
Art & Frame’s master account 2488 to cover “che
eks” drawn on Debtor’s account 5706.
—3--
I )aIla.s Market contend.s the tern balance account
relationship inextricably linked I )ebtor’s
.tccnunt ilk, and Art & Frame’s master accoinit 2488
and that l)ebtor had unrestricted access In all
hinds on deposit. It argues the two accounts operated as one and the
same.
SrANlAkn OF ltKvww
We review l)alla.s Market’s summary judgment unde
r established standards. See Thx. R.
Civ. P. I 66a(e): Nixon v. Mr. Prop. Slgrnt ci’., 690
S.W.2d 546, 548—49 (rex. 1985). We review
de novo whether I)allas Market proved its right to
prevail as a matter oflaw. Vicky v. club Cup.
qfA,n., Il S.W.34 172, 175 (rex. App.— •L)allas 21)0
0, pet. denied). As the moving party, t)allas
Market had the burden to demonstrate that no genuine
issues ofmaterial Ihet exist and it was entitled
to judgment as a matter of law. See Nixon. 69() S.W.2d
at 548. A matter is conclusively established
ifordinary minds cannot differ on the conclusion to
be drawn from the evidence. AaV Collision Ctr.
qj.hlJLvon. Isie. i’. 7,wn of:hldison, 310 S.W.3d
191, 193 (rex. App.— Dallas 20)0. no pet). We
consider evidence favorable to Art & Frame, the non-
movant, as tnie. Nixon, 690 S.W.2d at 54849.
We also indulge every reasonable inference and resol
ve any doubts in favor of Art & Frame. fit
APPLICABLE LAW
Garnishment is a statutory proceeding that allows
the property, money, or credits ofa debtor
in the possession of another to be applied to the paym
ent of a debt See TEx. Civ. Pioc. & REM.
CoDi §* 63.00 l--.008 (West 2008); Tix. it. Civ. P.
657—79: Bank One, Ta., NA. it Sunbelt Say.,
MS.B.. 824 S.W.2d 557, 558 (Tex. 1992) (per curiam);
Begc i’. File. 106 S.W.2d 1039, 1042 (Tex.
1937). Funds placed with a bank ordinarily become gene
ral deposits, which create a debtor-creditor
relationship between the bank and its depositor.
Sunbelt, 824 S.W.2d at 558; Citizens Nat ‘1 Bank
ofDallas it îüí,, 505 S.W.2d 246.248 (Tex.
1974). A garnishee bank is not indebted to ajudgme
nt
debtor unless some form of deposit agreement creat
es that relationship between the bank and the
-k
uilgmcnt debtor. .VunI’elt, 824 S.W.2d at 458. A deposit may be reached by a
ganushor only if the
teNor is the true owner of the deposit. St w &anhlurt ‘c hr. In,’. Corp. w. Trinity Saw. & Loan
A.tc ‘ii.
414 S.W.2d 191), 194 (rex. Civ. Allp. —Dallas 1967
, writ rel’d n.r.c.).
.‘ garnishee may contest its liability under a writ of garnishment. Specifica
lly, it has the
same riuhts it would have if stied by the debtor instc
ad of the debtor’s creditor. Beggs, 106 S.W.2d
at 1042; WiThens & Lange v. (‘hrisiiun, 223 S.W. 253.
255 (Tex. Civ. App.-— Galveston 1919, writ
dism’d w.o.jj. Either the garnishee, through its answ
er, or the garnishor. through traverse of that
answer, may raise the issue ofownership or title to the
property or funds garnished. See Thompson
r. Pulion flag & flaton Mills, 286 S.W.2d 411,414
(Tex. 1956). A person other than the garnishee
or debtor who claims ownership of the funds held
by the garnishee must intervene to contest
ownership of the garnished funds. See Put,nun &
l’utman. Inc. t Capitol Wan’house, b.c., 775
S.W.2d 460,463 (Tex. App.•—Austin 1989, writ deni
ed); see generally Thx. R. Civ. P.60 (any party
may intervene, suliect to being stricken for sufficient
cause). The intervenor must allege and prove
its ownership of the funds. Puanan, 775 S.W.2d at 463.
When a dispute over ownership or title of the (kinds arise
s, jurisdiction to determine whether
the garnishee holds hinds or property of the debtor rema
ins vested in the court that issued the writ
of garnishment. Wrigley v. Pint Nat 1 Sect Corp.,
104 S.W.3d 259. 264 (Tex. App.—Beaumont
2003. no pet). In Sunbelt, for example, the Supreme
Court ofTexas reaffirmed that only the court
issuing the writ of garnishment may decide disputed
issues regarding ownership of hinds. 824
S.W.2d at 558.
Sunbelt involved (kinds held by the garnishee bank
in the name of a company, which the
judgment creditor alleged included personal fund
s commingled by the individual debtor. Id. at
557—58. The supreme court emphasized that indebted
ness to ajudgment debtor depends on some
—5—
loon of deposit agreement creating a dehiorereditor relat
ionship, hi. at 558. Acknowledging that
the scope of at writ of garnishment is broad enough to
impound Iirnds ot the dehtor to which a third
party may livid title. ihe court slated that a creditor chad leng
ing title to those funds should seek a writ
naming the nominal owner as holding hinds from the
“true owner.” lit (citing Thompson. 286
S.W.2d at 414).
The liming of both service ofa writ of garnishment and
the garnishee’s answer date govern
the identity of’ hinds trapped. See First Nat 1 Batik in Dallas v. Bunco Longoria. LA., 356 S.W.2d
192. 195—96 (rex. Civ. App.—San Antonio 1962, writ
rerd n.r.c.). Specifically, a writ of
garnishment impounds funds in the hands of the garnishee
at the time the writ is served through the
date garnishee is required to answer. Id. A garn
ishee tiling its answer prior to the return day does
not alter this period. lii. at 196.
DAllAs lL4RKrr’s SuMMARY4IJIX;METn MOTION
Dallas Market moved tbr summary judgment as to the
$252,111.55 set aside by Wachovia
in response to the first writ and which continued to be
held afler dissolution of that writ It claimed
entitlement to all funds in account 2488, including any
loaned funds from a line of credit. it argued
specifically that (I) Debtor had an unqualified right
to hands in account 2488 (as would Dallas
Market standing in Debtor’s shoes); (2) at a minimum
, it was entitled to the $240,000 moved by
Wachovia into a general ledger account prior to Wac
hovia’s answer to the writ of garnishment: (3)
accepting as true Art & Frame’s claim that the relat
ion between accounts 2488 and 5706 was
terminated August 6,2009, it was entitled to satisfy
its judgment from the $945.6 15.4 IS in deposits
flowing into account 2488 after service ofthe writ and
prior to Wachovia’s answer (4) alternatively,
it was entitled to satisfy its judgment from funds in acco
unt 2488 because they were held nominally
for Debtor; and (5) tiirther in the alternative, it was entit
led to funds in account 2488 regardless of
whether they were drawn tmiii a line of credit because garnishin
eni writs reach loaned funds. l)allas
Market also sought judgment alternatively against Wachovi
a because it allowed hinds to escape from
I)cbtor’s account alter service ot the writ.
I )allas Market’s summary—judgment evidence included affid
avits of Milzi I’ahley, the
executive vice president of administrative services für Dall
as Market, which were tiled in support
of both the original and second writs of garnishment. She prov
ed up the default judgment against
Debtor and testified to her belief that Wachovia had prop
erty belonging to the Debtor based on
checks received from Debtor showing a banking relations
hip. 11cr second affidavit included
deposition excerpts for George Eouse in his capacity as
the president of both Art & Prame and
I )cbtor.
Eouse’s deposition testimony confirmed that Debtor was
regularly using account 5706 for
its business before the first garnishment writ was served. Prio
r to that service, all revenues from
Debtor’s business were deposited into account 5706. The hind
s from account 5706 then transferred
automatically to account 2488 every evening pursuant to
the zero balance agreement To his
knowledge, hands from account 2488 would pay any checb writt
en on account 5706 if there were
not enough hands in account 5706 to cover a check.
Dallas Market’s summary-judgment evidence also included
Greg ory Ledforcl’s deposition
testimony in his capacity as a senior vice president for Wac
hovia in the risk management area for
treasury services. His deposition excerpts included testimon
y that the amount of $252,000 was
fm” at the time the first writ was served. 1’hose hands were
held in a general ledger account.
Of the $252,000, $240,000 came through account 2488 but
originated from a line of credit to that
master account. The remainder came from an account 7193
, listed in the name of Art & Frame
Direct doing business as API) Internet Sales. It was his understanding that a zero balance
—7—
relationship existed between accounts 2488 and 5706
when the lint writ was served.
I .edlonl described zero balance accounts as accounts
used hycoininercial clients to theilitate
concentration of funds. flu accounts are always maintained at a zero balan
1 ce and hinds are
maintained in the master account level only. I (e
identified the “Zero Balance Account Service
greement” dated January 30. 1998 between Art & Fram
e and Wachovia’s pred ecessor, SouthTnist
Hank, which showed (lie relationship between account
2488 as the master account and account 5706.
lie testified that the “way that the system operates.” the
5706 account is used for general operating
purposes and debit anti credit transactions that accumula
te during the day. Each evening, the bank’s
computer system calculates the transactions to determine
the cash position. If there is a net positive
position, the money is moved out to the master account.
If account 5706 has a net deticit position.
the master account would send the amount of money
to that account to bring it hack to zero. Art &
Frame asked Wachovia to dc-link account 5706 from
the master account on August 6, 2009.
Ant & FRAME’S SIJMMARY4UDGMENT REsPoNSE
Art & Frame responded to Dallas Market’s summary
.judgmen t motion, claiming the hinds
impounded by Waehovia were not being held for the bene
fit of Debtor nominally in the name ofArt
& Frame. Specifically, it argued that at the time (he seco
nd writ of garnishment was served on
September I, no funds in account 2488 could be
attributed to transtbrs from account 5706. It
presented exhibits showing that during the relevant perio
d more fluids were debited from account
2488 than were credited to that account from acco
unt 5706 trans&rs. It also noted that no hinds
from account 5706 were deposited into account 2488 after
the second writ was served. Additionally,
Art & Frame had severed any relationship between acco
unts 5706 and 2488 prior to service of the
second writ, which Dallas Market did not dispute for
summary-judgment purposes.
4-
Art & l:rnine argued secondly that 11w tern balance aqrc
einent covered only checks and not
armshnwnts. ipioting that express larnguage from the doem
nent. With regard to the $240,000
transferred 11cm account 2488 and to account 5706. it argu
ed the hold on that account was a unMake
because the amount was transferred horn the line of cred
it attached to aCcOLtnt 2488.
Art & Frame’s surnmary-udgment evidence included the
aflidavit of John Esguen, the vice
president of operations 11w Art & Frame, in whic
h he testified Wachovia had impounded
$252,111.55 in accounts belonging to Art & Frame. It also
included an affidavit from Eouse as the
chief executive officer of Debtor delineating the judg
ment against Debtor, the separate employer
identification number, and separate ownership by the Eous
e Family Partnership Ltd., LLLP.
In addition to lisguera’s and Louse’s affidavits, Art
& Frame relied on Ledford’s deposition
testimony in which lie testified to the automatic transfer
of$240,000 from a line of credit to account
2488. which in turn was transferred to account 5706.
Ledford explained that the legal processing
employees did not know there was a line ofcredit and
that it would draw down to satisfy the debit.
The “error” was that they would not have processed
the transfer had they known the money was
going to come from the line of credit “They followed
procedure and it inadvertently created the
problem.”
Lcdtbrd’s deposition testimony also included confirma
tion that, at the time of service ofthe
writ, account 5706 did not contain funds to satisfy
the judgment He testified that his legal
processing employees had the first writ on August 3 and
the $240,000 drawn down from the line of
credit was because there were insufficient funds in acco
unt 2488. He said that once they realized
they had drawn the funds off the line of credit, they retur
ned the money to the line of credit
.%NAL.ThIS
I )allas Market assumed (hr purposes nt summary judgmen
t (hat the relationship between
accounts 5706 and 23148 was several on August 6, 204)9.
[here is no evidence timds were
irnnstèrred between the accounts after that perloeL Acco
rdingly, when Dallas Market served
Wachovia on September I with the second writ naming Art
& Frame nominally as holding funds for
I )ebtor as the true owner, no limds were impounded.
Dallas Market’s Iirst writ of garnishment impounded 1)eb
tor’s deposits in the hands of
Wachovia on July 3!. the date the writ was served, throu
gh August 24. the date Wachovia was
required to answer. Manes, Longoria, 356 S.W.2d at 195—
96. In its summary-judgment motion,
however. Dallas Market sought only those tbnds in the acco
unt through the date of Wachovia’s
answer. Although Dallas Market identilied that date as Aug
ust 13, the court records show the date
to be August 17. Because Art & Frame was not named and serve
d as a third party nominally holding
funds (hr Debtor until September 1. the relevant inqu
iry, based on Dallas Market’s summary-
judgment grounds, is what deposits Wachovia held for Debt
or on July 31 through August 17.
•ro answer this question, we must address the nature of the
relationship between accounts
5706 and 248K on July31 • but before August 6 when the acco
unts were de-linked. Dallas Market
does not appear to assert that Debtor owned funds that came
from account 7193, listed in the name
of Art & Frame l)irect doing busincss as AFD Internet Sale
s. ft also has not alleged a legal theory
11w ignoring the corporate distinction between Debtor and Art
& Frame. And it has not obtained any
finding that the entities may be treated as one for purposes
of the garnishment proceeding. The
relationship between the two accounts for purposes of this
garnishment proceeding therefore is
determined based on the deposit agreement or agreements with
Wachovia. See Sunbelt, 824 S.W.2d
at 558.
-10-
[he only deposit agreement in the suinmary—judgnicnt
evidence is the tern balance
agreement. [hat agreement was signed by (icorge Louse
as president of Art & Iraine. It was not
sined by l)ebtor. As argued by Art & Frame, the tern balance
agreement stated only (hat Wachovia
was authorized to transfer funds tram account 2lR8 to cove
r “liecks” drawn on any tern balance
account. It relies on the language of paragraph two of
the agreement:
As long as LArt & Frame’sj Master Account contains suffi
cient available hinds to
cover check., drawn on the Zero Balance Accounts, Bank
will pay cheeky drawn on
the Zero Balance Accounts which are properly payable in
accordance with the
separate checking account agreements between [Art & Fram
e I and Bank with respect
to each Zero Balance Account. Bank is hereby authorize
d to transfer from the Master
Account to each Zero Balance Account sufficient fund
s to cover the cheeks drawn
on such tern Balance Account. l3ank is authorized to pay
any and all checks drawn
on any of [Art & Frame’s] checking accounts by the
officer or agent of [Art &
Framej whose signature appears on the signature cards for such
account or on Bank’s
records, whether such checks arc presented to Bank for
cash or deposit or credit to
the personal account or benefit ofsuch officer or agent
or otherwise negotiated, and
Bank is hereby released from any obligation to mak
e inquiry concerning the
disposition of the proceeds of any such item.
(Emphasis added).
l)allas Market argues the agreement is not limited to paym
ent ofcheeks. It claims the zero
balance agreement included a one-page document entit
led “Zero Balance Account Service
l)cscription.” That document was attached to Ledlord’s depo
sition as exhibit 22a and references in
part checks and “other debits” charged against subsidiary acco
unts. Exhibit 22a also provides that
“Customer warrants” that the master account and all subs
idiary accounts “shall be owned by one
common legal entity, and that the hinds in each account are
free to be commingled by the Bank.”
Exhibit 22a is not signed by any person or entity. The
only reference to the document is
Ledford’s testimony on behalf of Wachovia that to the “bes
t of [his] knowledge,” the document is
a copy of Wachovia’s “zero balance account service desc
ription.” He testified that the document
provided “some descriptions of how ZBA accounts at Wac
hovia work.” lie never testified the
II—
iluciiuieiit was part ut the .igreemcnt with Debtor .ini) .\rt & Iraine. I Ic list) did nut lcsttl that this
description. if paut of the deposit agreement, would cover writs of Larnishment or debts generally,
including judgment debts. If the set vice description was part of the account agreement on July31,
the language of the document shows that the hands in the master account and all subsidiary accounts
were “owned by one common legal entity.” The parties have not identified, or attempted to identify,
that common legal entity owning the accounts.
I )eposition testimony attached as smunmary—judgnient evidence provided some inlonnation
regarding how transfers under the zero balance agreement were applied hut did not establish
Debtor’s ante ownership of the lbnds set aside by Wachovia. Specifically. house testified that prior
to service oh’ the lint writ, l)ehtor regularly used account 5706 tbr its business and that funds from
that account transferred automatically to account 2488 every evening pursuant to the zero balance
agreement I Ic conlinned only that ‘checks” written on account 5706 would be covered from
account 2488 ifthere were insufficient hinds in that account. He did not testify to other debits or that
Debtor had any other type ofaccess to the master account or other zero balance accounts established
by Art & Frame.
Similarly. Ledford’s testimony as an officer on behalf of Wachovia provided no additional
proof that Debtor was the truc owner of the funds set aside. He testified generally as to the nature
of zero balance accounts, describing the accounts as vehicles 11w commercial clients to maintain
Rinds only in a master account level. He specifically identified the zero balance agreement between
Art & Frame and its predecessor, but he was unable to state whether it was in effect on July 31. He
did describe how “the system operate[d]” for accounts 5706 and 2488. While the operation of the
system provides some evidence ofthe parties’ deposit agreement or agreements, Ledford’s testimony
did not establish as a matter of law that the one page “service description” was part of the parties’
—12—
.igrcemcitt or iltait it would cover garnishments. Nor ilid his testimon
y, or any other testimotiy,
establish that a line of credit attached to account 2488 prov
ided for such coverage. Conversely, he
testified that when Wachovia’s legal processing employe
es placed a debit hold br the writ of
garnishment, they did not know the hold would draw dow
n $240,000 front the line ofcredit affiliated
with account 2488. lIe described that as “the error.” He
further testified that the remainder of the
$252,000 ‘liozen” came from another account, numbered 1193
. listed in the name of Art & Frame
l)irect doing business as AFt) Internet Sales.
Dallas Market claimed in its reply in support of summary
judgment that the issue “is not a
question ofwhether the LIlA relationship covers judgmen
ts, but rather whether [L)ebtorl had access
to funds in [account 24381 during the pcndency of the writ.
” It makes the same argument in its
appellate brief, exchanging the noun “garnishments” for
“judgments.” Yet it has cited no authority
in support of this argument, either to the trial court or this Cou
rt. Access, alone, is not determinative
of tnte ownership of hinds. See e.g.. Sunbelt, 824 S.W.2d
at 558 (unless deposit agre ement created
debtor-creditor relationship between bank and judgmen
t debtor, bank not indebted to judgment
debtor); Whitney Win ‘I Dank it. Baker, 122 S.W.3d 204.209
(Tex. App.—Houston [1st Dist J 2003,
no pet) (quoting Sunbelt; holding fact that individual cond
ucted transactions in account did not
establish account was his personal account).
The undisputed evidence shows the zero balance agre
ement between Art & Frame (not
Debtor) and Wachovia allowed (until August 6) sweeps of
deposits from account 5106 into account
2488, payment of checks drawn on account 5706 from
funds in account 2488, and in practice,
payment of debits on account 5706. The evidence also show
s that Wachovia actually transferred
$240,000 from Art & Frame’s line of credit into account 2488
and then into account 5706 on August
3—an act later claimed to be a processing error and not
allowed by any agreements among the
—13—
parties. From this record, we conclude l)allas
Market did not prove as a matter ui law that
I )ehtor
vas (he true owner of limds in ;iccoimt 2488 or
the line of credit attached to that account.
Hven II’
“access” were the only inquiry. (hsputcd issues
of titet cx 1st regsrding what level ol acce
ss 1)ebtor
had to timds in account 2.488 during the relevant
period. The only deposit agreement contained
in
the summary-judgment evidence shows Art
& Frame and Waehovia were the parties to
the
agreement. Ifthe service description is part of that
agreement the customer warranted that only
one
legal entity owned the funds in the master acco
unt and all subsidiary accounts. [hat entity
has not
been identified liv Art & Frame or I )allas Ma
rket Simply stated, I)alias Market did not
meet its
summary-judgment burden. Accordingly. Art
& Frame’s issue is sustained.
We observe that Art & Frame urges in the conc
lusion of its appellate brief that the attorney’
s
fees award to Wachovia should also be set aside
. It did not appeal the judgment entered
tin
Wachovia’s summary-judgment motion or raise
an issue as to the award ofattorney’s lees. Nor
does
it state in what way the grantingof Wachovia’s
summary-judgment motion was dependent on
Dallas
Market’s motion. Accordingly. nothing is prese
nted for our review with respect to the attor
ney’s
ICes award. See Thx. R. Apr. p. 33.1(f), (i).
CONCLUSION
All of L)allas Market’s summary-judgment grou
nds for recoveryof the $252,111.55 set aside
by Wachovia in rcsponse to the first writ were
based on l)ebtor’s “unqualified right” to fund
s in
account 2488, including ‘lnd hands” from the
line ofcredit attached to that master accoun
t The
summary-judgment evidence did not prove Debt
or’s ownership ofthe hands as a matter of
law based
on the zero balance agreement, the way in which the
account was handled prior to tIe-linking acco
unt
5706 from master account 2488, or the level of
access I)ebtor had. Summary judgment in
favor of
Dallas Market thus was improper, and we sustain
Art & Frame’s issue. The final judgment gran
ting
-14-
l)allas Market’c motion ;mmul denying Art & Inime’s requ
est hr reliefas to Dallas Market is rcwrsed
mini remnanaled to (lie trial commfl for further proceedings. Otherwise. the
trial court’s judgment is
atlinned.
/7 /1 ‘1
/ln —
MARY MLj$tPHY
JUSTICE ci /
101411 F.P05
—15—
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JUDGMENT
ART & FRAME DIR ECT, [NC,, Appellant Appeal from the 1 60th Judicial District
Court of Dallas County, Texas. (Tr.Ct.No.
No. 05-l0-01471-CV V. DC-09-095 16-H).
Opinion delivered by Justice Murphy,
DALLAS MARKET CENTER Justices Fillmore and Myers participating.
OPERATiNG, L.P. AND WACHOVIA
BANK. NA.. Appellees
in accordance with this CourFs opinion of this date, the portion of the trial court’s
September
29, 2010 judgment granting appellee Dallas Market Center Operating, L.P. ‘s Motion
for Summary
Judgment on First Writ of Garnishment and denying relief requested by appella
nt Art & Frame
[)irect, Inc. is REVERSED and this cause is REMANDED to the trial court for
further proceedings.
We AFFIRM the trial court’s judgment in all other respects. It is ORDEREL)
that appellant Art
& Frame Ducct Inc iccovei its costs of this appeal from appellec Dallas Marke
t Center Operating,
L.P.
Judgment entered September 18, 2012.
Z. /1
f / •fl/•V/ / /
JUSTiCE