Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-18-00836-CV
Allan W. MAJESKI, Appellant
v.
FROST BANK, Appellee
From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2018CI00427 Honorable Karen H. Pozza, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Patricia O. Alvarez, Justice Irene Rios, Justice Beth Watkins, Justice
Delivered and Filed: December 27, 2019
AFFIRMED
Appellee Frost Bank sued appellant Allan W. Majeski for breach of contract, alleging he
created an overdraft balance in his checking account that he failed to repay. The trial court granted
summary judgment in Frost’s favor, and Majeski appealed. We affirm the trial court’s judgment.
BACKGROUND
Majeski opened a checking account at Frost on September 8, 2016. On October 14, 2016,
he signed a revised deposit account agreement under which he agreed:
• to be “jointly and severally liable to [Frost] for debit balances in the Account, including without limitation overdrafts and Account charges, and jointly and 04-18-00836-CV
severally promise[d] to pay, upon demand, any and all debit balances, all fees and charges, and [Frost’s] reasonable attorneys’ fees and costs. . .”; and
• “immediately upon notice from [Frost], to deposit funds sufficient to cover any overdraft plus service charges.”
At the beginning of the January 2017 statement period, Majeski’s checking account
contained a positive balance. That statement reflects several charges that caused his account to
have a negative balance. Majeski communicated to Frost Bank that he neither made nor authorized
those charges, and Frost issued a provisional credit in the amount of those charges.
In February of 2017, Frost reversed that provisional credit, leaving the account with a
balance of $-3,310.65. Frost assessed the March service charge/fee of $5.00 before charging off
the amount of $3,315.65. In January of 2018, Frost sued Majeski for that amount.
After Majeski answered, Frost moved for summary judgment. Majeski filed a response
supported by his own affidavit. In that affidavit, Majeski averred that the unauthorized charges
actually occurred—and that Frost initially issued a provisional credit for the amount of those
charges—in October of 2016. According to Majeski, although Frost reversed the provisional credit
in December of 2016, it returned that amount to his account after he presented additional
information showing that he neither made nor authorized the charges. After a hearing, the trial
court granted summary judgment in Frost’s favor, and Majeski appealed.
Summary Judgment Analysis
In his first two issues on appeal, Majeski contends the trial court erred in not only
concluding that Frost was entitled to judgment as a matter of law, but also in failing to find that
Majeski’s evidence raised a fact issue. We consider these arguments together.
Standard of Review
We review summary judgment orders de novo. Scripps NP Operating, LLC v. Carter, 573
S.W.3d 781, 790 (Tex. 2019). A plaintiff that moves for summary judgment on its own cause of
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action must establish each element of its claim as a matter of law. See Holmes v. Graham Mortg.
Corp., 449 S.W.3d 257, 264 (Tex. App.—Dallas 2014, pet. denied). We take as true all evidence
favorable to the nonmovant and indulge every reasonable inference in the nonmovant’s favor.
Helix Energy Sols. Grp., Inc. v. Gold, 522 S.W.3d 427, 431 (Tex. 2017).
Applicable Law
The elements of a breach of contract claim here are: (1) the existence of a valid contract
between Majeski and Frost; (2) Frost performed or tendered performance; (3) Majeski breached
the contract; and (4) Frost was damaged as a result. See Southwell v. Univ. of the Incarnate Word,
974 S.W.2d 351, 354–55 (Tex. App.—San Antonio 1998, pet. denied).
Application
Frost included the revised deposit agreement Majeski signed to prove the existence of a
valid contract. Under the terms of that agreement, Frost had the option to pay charges that would
overdraft the account. If Frost paid an overdraft, Majeski was obligated to immediately “deposit
funds sufficient to cover any overdraft . . . .” See id. at 354. Frost presented the January, February,
and March 2017 bank statements to establish that it performed under the contract when it paid the
charges that caused the account to be overdrawn. See id. at 354–55. These statements also show
that Majeski did not deposit funds sufficient to cover those overdrafts. Frost also included the
affidavit of its custodian of records to establish that it had demanded payment of $3,315.65 from
Majeski, but he had not paid. This evidence established Majeski’s breach. See id. at 355. As
evidence that it suffered damages, Frost submitted the March 20, 2017 statement, showing that
Majeski’s account had a balance of $-3,315.65, and that Frost charged off the account in that
amount. See id. This evidence established each element of Frost’s breach of contract claim as a
matter of law.
-3- 04-18-00836-CV
The summary judgment burden therefore shifted to Majeski to present evidence to raise a
genuine issue of material fact on at least one of these elements. TEX. R. CIV. P. 166a(c); see also
Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). In response, Majeski argued that Frost was
not entitled to judgment as a matter of law because it had not supplied a complete history of his
account. He contended: (1) he opened his account on September 8, 2016, not on October 14, 2016
as Frost alleged; and (2) the original overdrafts—followed by the first provisional credits and
subsequent reversals—occurred in October 2016, not December of 2016. Even taking these
statements as true, they are not genuine issues of material fact because they would not cause a
reasonable jury to return a verdict in Majeski’s favor. See, e.g., Moore v. K Mart Corp., 981 S.W.2d
266, 269 (Tex. App.—San Antonio 1998, pet. denied) (recognizing no genuine issue of material
fact is present “[i]f the evidence simply shows that some metaphysical doubt as to the fact exists”).
Majeski also argued Frost was not entitled to judgment as a matter of law because Frost
agreed to “provide overdraft protection with the account.” The deposit account agreement Majeski
signed confirmed this term, but also demonstrated that Majeski’s interpretation of this term—that
“transactions could not be approved unless sufficient funds were in the account to cover the
withdraw[al] or purchase transaction”—is contrary to the agreement he signed. Instead, that
agreement explicitly provided that Frost had the option to pay a charge, even if Majeski did not
have enough money in the account to cover that charge, and that he would be liable to Frost for
the amount of that charge. Because Majeski’s affidavit is inadequate to controvert this agreed term,
he did not meet his burden to demonstrate that Frost was not entitled to judgment as a matter of
law. See, e.g., BP Am. Prod. Co. v.
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-18-00836-CV
Allan W. MAJESKI, Appellant
v.
FROST BANK, Appellee
From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2018CI00427 Honorable Karen H. Pozza, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Patricia O. Alvarez, Justice Irene Rios, Justice Beth Watkins, Justice
Delivered and Filed: December 27, 2019
AFFIRMED
Appellee Frost Bank sued appellant Allan W. Majeski for breach of contract, alleging he
created an overdraft balance in his checking account that he failed to repay. The trial court granted
summary judgment in Frost’s favor, and Majeski appealed. We affirm the trial court’s judgment.
BACKGROUND
Majeski opened a checking account at Frost on September 8, 2016. On October 14, 2016,
he signed a revised deposit account agreement under which he agreed:
• to be “jointly and severally liable to [Frost] for debit balances in the Account, including without limitation overdrafts and Account charges, and jointly and 04-18-00836-CV
severally promise[d] to pay, upon demand, any and all debit balances, all fees and charges, and [Frost’s] reasonable attorneys’ fees and costs. . .”; and
• “immediately upon notice from [Frost], to deposit funds sufficient to cover any overdraft plus service charges.”
At the beginning of the January 2017 statement period, Majeski’s checking account
contained a positive balance. That statement reflects several charges that caused his account to
have a negative balance. Majeski communicated to Frost Bank that he neither made nor authorized
those charges, and Frost issued a provisional credit in the amount of those charges.
In February of 2017, Frost reversed that provisional credit, leaving the account with a
balance of $-3,310.65. Frost assessed the March service charge/fee of $5.00 before charging off
the amount of $3,315.65. In January of 2018, Frost sued Majeski for that amount.
After Majeski answered, Frost moved for summary judgment. Majeski filed a response
supported by his own affidavit. In that affidavit, Majeski averred that the unauthorized charges
actually occurred—and that Frost initially issued a provisional credit for the amount of those
charges—in October of 2016. According to Majeski, although Frost reversed the provisional credit
in December of 2016, it returned that amount to his account after he presented additional
information showing that he neither made nor authorized the charges. After a hearing, the trial
court granted summary judgment in Frost’s favor, and Majeski appealed.
Summary Judgment Analysis
In his first two issues on appeal, Majeski contends the trial court erred in not only
concluding that Frost was entitled to judgment as a matter of law, but also in failing to find that
Majeski’s evidence raised a fact issue. We consider these arguments together.
Standard of Review
We review summary judgment orders de novo. Scripps NP Operating, LLC v. Carter, 573
S.W.3d 781, 790 (Tex. 2019). A plaintiff that moves for summary judgment on its own cause of
-2- 04-18-00836-CV
action must establish each element of its claim as a matter of law. See Holmes v. Graham Mortg.
Corp., 449 S.W.3d 257, 264 (Tex. App.—Dallas 2014, pet. denied). We take as true all evidence
favorable to the nonmovant and indulge every reasonable inference in the nonmovant’s favor.
Helix Energy Sols. Grp., Inc. v. Gold, 522 S.W.3d 427, 431 (Tex. 2017).
Applicable Law
The elements of a breach of contract claim here are: (1) the existence of a valid contract
between Majeski and Frost; (2) Frost performed or tendered performance; (3) Majeski breached
the contract; and (4) Frost was damaged as a result. See Southwell v. Univ. of the Incarnate Word,
974 S.W.2d 351, 354–55 (Tex. App.—San Antonio 1998, pet. denied).
Application
Frost included the revised deposit agreement Majeski signed to prove the existence of a
valid contract. Under the terms of that agreement, Frost had the option to pay charges that would
overdraft the account. If Frost paid an overdraft, Majeski was obligated to immediately “deposit
funds sufficient to cover any overdraft . . . .” See id. at 354. Frost presented the January, February,
and March 2017 bank statements to establish that it performed under the contract when it paid the
charges that caused the account to be overdrawn. See id. at 354–55. These statements also show
that Majeski did not deposit funds sufficient to cover those overdrafts. Frost also included the
affidavit of its custodian of records to establish that it had demanded payment of $3,315.65 from
Majeski, but he had not paid. This evidence established Majeski’s breach. See id. at 355. As
evidence that it suffered damages, Frost submitted the March 20, 2017 statement, showing that
Majeski’s account had a balance of $-3,315.65, and that Frost charged off the account in that
amount. See id. This evidence established each element of Frost’s breach of contract claim as a
matter of law.
-3- 04-18-00836-CV
The summary judgment burden therefore shifted to Majeski to present evidence to raise a
genuine issue of material fact on at least one of these elements. TEX. R. CIV. P. 166a(c); see also
Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). In response, Majeski argued that Frost was
not entitled to judgment as a matter of law because it had not supplied a complete history of his
account. He contended: (1) he opened his account on September 8, 2016, not on October 14, 2016
as Frost alleged; and (2) the original overdrafts—followed by the first provisional credits and
subsequent reversals—occurred in October 2016, not December of 2016. Even taking these
statements as true, they are not genuine issues of material fact because they would not cause a
reasonable jury to return a verdict in Majeski’s favor. See, e.g., Moore v. K Mart Corp., 981 S.W.2d
266, 269 (Tex. App.—San Antonio 1998, pet. denied) (recognizing no genuine issue of material
fact is present “[i]f the evidence simply shows that some metaphysical doubt as to the fact exists”).
Majeski also argued Frost was not entitled to judgment as a matter of law because Frost
agreed to “provide overdraft protection with the account.” The deposit account agreement Majeski
signed confirmed this term, but also demonstrated that Majeski’s interpretation of this term—that
“transactions could not be approved unless sufficient funds were in the account to cover the
withdraw[al] or purchase transaction”—is contrary to the agreement he signed. Instead, that
agreement explicitly provided that Frost had the option to pay a charge, even if Majeski did not
have enough money in the account to cover that charge, and that he would be liable to Frost for
the amount of that charge. Because Majeski’s affidavit is inadequate to controvert this agreed term,
he did not meet his burden to demonstrate that Frost was not entitled to judgment as a matter of
law. See, e.g., BP Am. Prod. Co. v. Zaffirini, 419 S.W.3d 485, 497 (Tex. App.—San Antonio 2013,
pet. denied) (recognizing unambiguous contract terms must be construed as a matter of law). We
therefore overrule Majeski’s first and second issues.
-4- 04-18-00836-CV
Trial Court’s Consideration of Majeski’s Response
We interpret Majeski’s third argument on appeal to contend that the trial court failed to
review his response before signing the summary judgment order. At the beginning of the summary
judgment hearing, the court inquired whether Majeski filed a response. The court was informed
that Majeski had filed a timely response, but that he did not file his summary judgment evidence
until less than seven days before the hearing. Majeski asked the court to consider his affidavit, and
the court explicitly agreed. Furthermore, the summary judgment order recites that the court
considered Majeski’s response. Because the record demonstrates that the trial court actually
considered Majeski’s summary judgment response and affidavit, we overrule his final argument
on appeal. 1 Cf. Perkins v. City of San Antonio, No. 04-10-00052-CV, 2010 WL 4340785, at *2
(Tex. App.—San Antonio Nov. 3, 2010, no pet.) (mem. op.) (“A party asserting error on appeal
bears the burden of showing that the record supports the contention raised. . . .”) (internal quotation
marks omitted).
CONCLUSION
We affirm the judgment of the trial court.
Beth Watkins, Justice
1 If, instead, Majeski’s argument on appeal is that the trial court did not take the matter under advisement and simply orally rendered judgment at the conclusion of the hearing, we conclude he alleges no reversible error. See, e.g., TEX. R. APP. P. 44.1(a) (requiring reversible error to “(1) probably cause[] the rendition of an improper judgment; or (2) probably prevent[] the appellant from presenting the case to the court of appeals”).
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