Boyd v. American Bank of Commerce At Wolfforth

872 S.W.2d 29, 1994 Tex. App. LEXIS 405, 1994 WL 56533
CourtCourt of Appeals of Texas
DecidedFebruary 28, 1994
DocketNo. 07-93-0289-CV
StatusPublished
Cited by1 cases

This text of 872 S.W.2d 29 (Boyd v. American Bank of Commerce At Wolfforth) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boyd v. American Bank of Commerce At Wolfforth, 872 S.W.2d 29, 1994 Tex. App. LEXIS 405, 1994 WL 56533 (Tex. Ct. App. 1994).

Opinion

REYNOLDS, Chief Justice.

Aggrieved by a take-nothing summary judgment rendered in her action against American Bank of Commerce at Wolfforth, Kay Boyd contends, with two points of error, that the bank did not establish its right to summary judgment. Agreeing, we will reverse and remand.

In July 1991, Boyd executed two notes payable to the bank for a total of $2,415.17, the payments of which were secured by her checking account at the bank and her car. Both notes were due and payable upon demand, but if no demand was made, then they were due on 6 January 1992.

The notes were identical in their provisions and, as material to this appeal, provided that:

DEFAULT — I [BOYD] will be in default on this note and any agreement securing this note if any one or more of the following occurs:
(a) I fail to perform any obligation which I have undertaken in this note or any agreement securing this note, or
(b) you [the bank], in good faith, believe that the prospect of payment or the prospect of my performance of any other of my obligations under this note or any agreement securing this note is impaired.
If any of us are in default on this note or any security agreement, you may exercise your remedies against any or all of us.
.REMEDIES — If I am in default on the note or any agreement securing this note, you have the following remedies:
(a) You may, without notice, but subject to any rebate required by law, make all unpaid principal, earned interest and all other agreed charges immediately payable.
(b) You may, without prior demand or notice, exercise your right of set-off...:
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SET-OFF — I agree that you may set-off any amount I owe you under this note (less any rebate required by law) against any right I have to receive money from you. This includes any deposit account balance I have with you....
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You will not be liable for the dishonor of any checks when the dishonor occurs because you set-off this debt against any of my accounts. I agree to hold you harmless from any claims arising as a result of your exercise of your right of set-off.
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WAIVER — I waive (to the extent permitted by law) demand, presentment, protest, notice of dishonor, notice of protest, notice of intent to accelerate and notice of acceleration.

In making the first loan, the bank understood that the debt would be paid with funds Boyd expected to receive from the pending sale of a house in which she had an interest.

On 27 September 1991, Boyd deposited $4,088 into her cheeking account with the bank.- Soon thereafter, Royce Wittie, senior [31]*31loan officer with the bank, had a conversation with Boyd that lead him to believe she would pay off the notes by the end of the week. When she did not do so, Wittie attempted to contact her at her place of employment, only to discover she quit her job.

On 6 October 1991, Boyd communicated to Wittie she would “come in the next day and take care of the notes and overdrafts.”1 When she failed to do so on October 7th, the bank offset her checking account in the amount of $2,339.35 in foil payment of the notes, causing Boyd’s account to be insufficient to pay her outstanding cheeks.

Contending the bank’s offset was wrongful, the ensuing dishonor of her outstanding checks was wrongful, and the bank’s actions violated the Texas Deceptive Trade Practices Act,2 Boyd filed the lawsuit underlying this appeal. After answering with a general denial of Boyd’s allegations, the bank moved for summary judgment.

The bank asserted its entitlement “to summary judgment as a matter of law for several reasons, all based upon the clear and unequivocal waivers found in the notes.” In explanation, the bank, reciting the waiver of demand provision in the notes, reasoned that “the notes became due regardless of final maturity date on October 7, 1991, when [the bank] offset the account and (sic) even if there is a disagreement that formal demand was not made.” Further, the bank, reciting the setoff provisions, expressed that “because the only issues raised by [Boyd’s] pleadings are predicated on recovery based upon wrongful setoff or wrongful dishonor[,] [Boyd] clearly and unequivocally waived her right to sue [the bank] for either wrongful setoff or wrongful dishonor and agreed to hold [the bank] harmless from any claims arising out of the right of setoff.”

Without specifying the grounds for doing so, the trial court granted the bank’s motion for summary judgment, and rendered judgment that Boyd take nothing by her action. Appealing, Boyd contends the trial court disregarded applicable law, and the bank did not establish its right to summary judgment.

To merit the summary judgment rendered, the bank was required to conclusively establish that Boyd waived her right to maintain her lawsuit, the issue it expressly presented to the trial court. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). The summary judgment may not rest upon another issue or ground not expressly presented to the trial court. Id.; Chessher v. Southwestern Bell Telephone Co., 658 S.W.2d 563, 564 (Tex.1983).

In construing the promissory notes, our primary objective is to ascertain and give effect to the true intention of the parties. To this end, we must examine the entire writing, seeking as best we can to harmonize and give effect to all the provisions in the notes so that none will be rendered meaningless. Universal C.I.T. Credit Corp. v. Daniel, 150 Tex. 513, 243 S.W.2d 154, 157-58 (1951).

There is no allegation that the provisions of the notes are ambiguous. When the writing is unambiguous, effect will be given to the objective intention of the parties expressed within the writing. City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex.1968).

By application of these principles, the promissory notes provided that the remedies available, including the right of setoff, were invoked only if there was a default. Default only occurred if (1) Boyd became “in default on the note or any agreement securing th[e] note,” or (2) the bank felt “in good faith, ... that the prospect of payment ... [was] impaired.” In other words, the bank could not exercise its right of setoff unless the debt had matured or the customer was insolvent. Bandy v. First State Bank, 835 S.W.2d 609, 610 (Tex.1992).

However, the bank’s motion for summary judgment was not grounded upon a default by Boyd, which would invoke the bank’s right of setoff before the notes otherwise matured on 6 January 1992. The bank [32]

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872 S.W.2d 29, 1994 Tex. App. LEXIS 405, 1994 WL 56533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boyd-v-american-bank-of-commerce-at-wolfforth-texapp-1994.