Cadence Bank v. Roy J. Elizondo III, and Roy J. Elizondo III PLLC

• Court: Court of Appeals of Texas
• Decided: May 16, 2019
• Docket: 01-17-00886-CV
• Status: Published

Opinion

Opinion issued May 16, 2019

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-17-00886-CV ——————————— CADENCE BANK, Appellant V. ROY J. ELIZONDO III AND ROY J. ELIZONDO III PLLC, Appellees

On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2014-65226

DISSENTING OPINION

I respectfully dissent. In this suit, appellant Cadence Bank sued appellee Roy

J. Elizondo III and his law firm, Roy J. Elizondo III PLLC, to recover funds

charged back to Elizondo by the bank when a cashier’s check was dishonored that

Elizondo had deposited and from which he had directed that funds be wire- transferred to a foreign third party during the provisional settlement period. The

trial court entered summary judgment in favor of Elizondo on common-law

counterclaims and defenses he asserted against the bank in cross-motions for

summary judgment. Cadence has appealed. The majority affirms. I would not.

The majority opinion contravenes the established rule of law that the

Uniform Commercial Code (the UCC) preempts common-law claims and defenses

that conflict with established principles of banking and commercial law. I agree

with the majority that Elizondo breached both his deposit agreement with Cadence

Bank (the Deposit Agreement) and the warranty he gave the bank pursuant to the

UCC that the cashier’s check he had deposited into his IOLTA account at the bank

was good when he directed Cadence to transfer funds from his account to a foreign

entity during the provisional settlement period. I do not agree with the majority

that the wire transfer form, which stated that the funds had been transferred from a

“verified collected balance,” represented a separate and superseding agreement

between Elizondo and Cadence in which Cadence made a false representation to

Elizondo that overrode Cadence’s right under the UCC to charge the funds back to

Elizondo.

I would render judgment for Cadence.

2 Facts

This case is governed by the UCC and by Elizondo’s Deposit Agreement

with Cadence.

Section 4.214 of the UCC provides:

If a collecting bank has made provisional settlement with its customer for an item and fails by reason of dishonor, suspension of payments by a bank, or otherwise to receive settlement for the item that is or becomes final, the bank may revoke the settlement given by it, charge back the amount of any credit given for the item to its customer’s account, or obtain refund from its customer, whether or not it is able to return the item, if by its midnight deadline or within a longer reasonable time after it learns the facts it returns the item or sends notification of the facts.

TEX. BUS. & COM. CODE ANN. § 4.214(a) (emphasis added).

Section 4.207(a) of the UCC provides, “A customer or collecting bank that

transfers an item and receives a settlement or other consideration warrants to the

transferee and to any subsequent collecting bank that . . . the warrantor is a person

entitled to enforce the item” and that “all signatures on the item are authentic and

authorized.” Id. § 4.207(a)(1)–(2) (emphasis added). Section 4.207(b) provides, “If

an item is dishonored, a customer or collecting bank transferring the item and

receiving settlement or other consideration is obliged to pay the amount due on the

item (i) according to the terms of the item at the time it was transferred . . . .” Id.

§ 4.207(b). Finally, section 4.207(c) provides, “A person to whom the warranties

under Subsection (a) are made and who took the item in good faith may recover

3 from the warrantor as damages for breach of warranty an amount equal to the loss

suffered as a result of the breach . . . .” Id. § 4.207(c) (emphasis added). All of

these provisions apply here.

Section 4.201 of the UCC further provides that “[u]nless a contrary intent

clearly appears and before the time that a settlement given by a collecting bank for

an item becomes final, the bank, with respect to the item, is an agent or sub-agent

of the owner of the item and any settlement given for the item is provisional. This

provision applies . . . even though credit given for the item is subject to immediate

withdrawal as of right or is in fact withdrawn . . . .” Id. § 4.201(a) (emphasis

added). However, “the continuance of ownership of an item by its owner and any

rights of the owner to proceeds of the item are subject to rights of a collecting

bank, such as those resulting from outstanding advances on the item and rights of

recoupment or setoff.” Id.

Elizondo and his law firm, Roy J. Elizondo III, PLLC (collectively,

“Elizondo”), maintained an IOLTA account with Cadence Bank. The Deposit

Agreement signed by Elizondo and Cadence expressly affirmed the plain language

of the UCC. The Deposit Agreement specifically provided that any item accepted

for deposit “may be subject to later verification and final payment” and that

Cadence may “deduct funds from your account if an item is . . . returned to us

unpaid . . . even if you have already used the funds.” The Deposit Agreement also

4 stated, “Credit for any item we accept for deposit to your account . . . is provisional

and may be revoked if the item is not finally paid, for any reason, in cash or its

equivalent.” This provision of his Deposit Agreement with Cadence expressed

Elizondo’s understanding that the requirements of UCC sections 4.214(a), 4.207,

and 4.201 applied.

The summary judgment record shows that it was Cadence’s policy to

provide a provisional credit pending final settlement of the check deposited by

Elizondo and that Elizondo knowingly ordered funds to be transferred to a

Japanese account during the period when the funds were only provisionally

credited to his account. These practices complied with the UCC.

On Friday, September 19, 2014, a cashier’s check was delivered to

Elizondo’s office, just as a putative new client Elizondo had never met in person

said it would be. The check was payable to Elizondo in the amount of $496,850

and drawn on JPMorgan Chase Bank, N.A. Elizondo deposited the check into his

IOLTA account with Cadence, and Cadence credited the account with provisional

settlement funds.

On Tuesday, Elizondo contacted Cadence employee Shannon Yang-Oh and

informed her that he needed to wire transfer a portion of the funds in his account to

a third-party account in Japan. He sent Oh an email with the pertinent information,

including the name of the receiving bank, the name of the beneficiary, and the

5 amount to be wired: $398,980. Oh informed Elizondo that she would “prepare [a]

wire form and send it to [Elizondo] for a signature.”

Oh emailed a wire transfer request form to Elizondo. The top half of the

form consisted of fields already filled in with the information that Elizondo had

provided Oh in his earlier email. The form included a signature box for Elizondo

and a declaration stating:

I understand that the bank makes no guarantees concerning the delivery of international wires. I also understand that I will be responsible for tracer fees if a problem arises or if the funds are returned. I will accept the net proceeds. I have been made aware that this process may take up to 10 business days.

The bottom half of the form contained blank fields to be filled in by Cadence

after Elizondo had signed and submitted the form to the bank. These blank fields

included a field for the amount of the “collected balance” in the account from

which the wire transfer would be made and a field for the name of the “employee

who verified [the] collected balance.” Elizondo signed and emailed the form back

to Oh. Oh then filled out and signed the two “collected balance” fields, indicating

that the wire transfer would be made from a “collected balance” in the account of

$497,643.89. Another Cadence employee, Sharita Baker, wrote in the margins of

the form that $497,643.89 was Elizondo’s “available balance,” a term defined by

the Deposit Agreement to mean the amount “available for immediate withdrawal.”

6 Finally, Assistant Branch Manager Yolanda Villatoro signed the form as the

approving officer.

Cadence employees testified by deposition that when they complete a wire

transfer form, or otherwise provide information regarding account balances, they

rely on the amount that is reflected in Cadence’s computer system, and the

“collected balance” in the computer system represents the end-of-day ledger

balance, minus any debits, plus any credits from the previous day. Thus,

“Collected funds is just a term that is used to identify a particular field within our

system.” This collected balance can include a provisional credit for a deposited

check when any holds have been removed but the check still has not been finally

paid. That was the case here. Moreover, both the deposit slip and the deposit

receipt clearly disclosed that the deposit could be returned and was subject to the

provisions of the UCC. And Elizondo’s Deposit Agreement contained his express

acknowledgement that any item accepted for deposit “may be subject to later

verification and final payment” and that Cadence may “deduct funds from your

account if an item is . . . returned to us unpaid . . . even if you have already used

the funds.”

On Wednesday, September 24, Cadence wire transferred $398,980 to the

Japanese bank account using the provisional settlement funds that Cadence had

credited to Elizondo’s account. The cashier’s check was subsequently dishonored

7 by Chase and returned to Cadence unpaid. Cadence notified Elizondo that the

check had been dishonored, and it charged back the amount that had been

provisionally credited to his account, resulting in a negative account balance of

$398,980.

Cadence demanded that Elizondo repay the overdrawn funds. When

Elizondo refused, Cadence sued Elizondo to recover the overdrawn funds,

asserting claims for breach of Elizondo’s Deposit Agreement and breach of

warranty under the Texas UCC. See TEX. BUS. & COM. CODE ANN. § 4.207(a); see

also id. §§ 4.201(a), 4.207(b)–(c), 4.214(a).

Elizondo raised defenses and filed a counterclaim against Cadence, alleging

common-law causes of action for breach of contract, negligent misrepresentation,

and fraud. He based his claims and defenses on the statement in the wire transfer

request form that the funds were transferred from “a verified collected balance,”

arguing that the balance had not yet been “collected” as Elizondo was using the

term, although the validity of the check had been provisionally verified by

Elizondo himself, the bank had provisionally deposited the funds into his account,

and these practices were fully compliant with the UCC provisions permitting a

bank to charge back to its customer funds ordered transferred from the account by

the customer during the provisional settlement period.

8 The parties filed cross-motions for summary judgment, and the trial court

entered judgment for Elizondo.

Analysis

A. Arguments of the parties

Cadence argues that the trial court erred in denying its motion for summary

judgment because the evidence proves as a matter of law that Elizondo is liable for

breach of warranty under the UCC and for breach of the parties’ Deposit

Agreement. Specifically, Cadence contends that by depositing a counterfeit check

into his bank account Elizondo breached his warranties to Cadence under UCC

section 4.207 that he was “entitled to enforce” the cashier’s check he deposited and

that “all signatures” on the check were “authentic and authorized.” See id.

§ 4.207(a)(1)–(2). Cadence further contends that because it took the check “in

good faith” it was entitled under section 4.207(c) to recover from Elizondo as

damages the amount of the overdraft plus expenses. See id. § 4.207(c) (providing

that warrantee who takes item in good faith may recover as damages amount equal

to loss suffered from breach plus expenses).

Cadence further contends that it is entitled to charge back the provisional

credit to Elizondo’s account and to obtain a refund in the amount of the counterfeit

check under UCC sections 4.201 and 4.214 and Article E, Sections 1, 2, and 14 of

the Deposit Agreement with Elizondo. See id. § 4.201(a) (providing that bank

9 receives check as customer’s agent and that settlement for check is provisional); id.

§ 4.214(a) (providing bank’s right to charge back provisional settlement for

dishonored check). Finally, Cadence contends that the UCC, supplemented by the

Deposit Agreement, preempts Elizondo’s common-law claims and defenses. Thus,

Cadence contends the trial court erred in denying its motion for summary judgment

on its claims for breach of warranty and breach of contract.

Elizondo does not dispute that he breached the transfer warranties of section

4.207 by depositing the counterfeit check. Nor does he dispute that the UCC and

the Deposit Agreement entitle Cadence to charge back provisional settlement funds

credited to an account for a check that is deposited but later dishonored by the

drawee. However, Elizondo argues that his breaches did not cause Cadence’s

damages; they were caused by Cadence’s superseding breach by representing the

transferred funds on the transfer form as transferred from a “verified collected

balance” during the provisional settlement period; therefore, Cadence is not

entitled to recover the overdraft resulting from the charge-back in this case.

Accepting Elizondo’s argument upends the carefully articulated terms of the

UCC and the Deposit Agreement set out above in direct contravention of

controlling law. Accordingly, I dissent.

10 B. Applicable law

Under Texas law, the UCC regulates a bank’s relationship with its Texas

customers. See generally id. §§ 3.101–.605 (negotiable instruments); id. §§ 4.101–

.504 (bank deposits and collections); id. §§ 4A.101–.507 (funds transfers). “The

relationship may also be governed in part by agreements between the bank and its

customer, such as an agreement governing the processing of negotiable instruments

presented to the bank.” Contractors Source, Inc. v. Amegy Bank Nat’l Ass’n, 462

S.W.3d 128, 133 (Tex. App.—Houston [1st Dist.] 2015, no pet.).

The UCC “contains a comprehensive and carefully considered allocation of

responsibility among parties to banking relationships.” Sw. Bank v. Info. Support

Concepts, Inc., 149 S.W.3d 104, 107 (Tex. 2004). It “must be liberally construed

and applied to promote its underlying purposes and policies.” TEX. BUS. & COM.

CODE ANN. § 1.103(a). Those purposes and polices are “(1) to simplify, clarify and

modernize the law governing commercial transactions; (2) to permit the continued

expansion of commercial practices through custom, usage and agreement of the

parties; and (3) to make uniform the law among the various jurisdictions.” Id.; see

Sw. Bank, 149 S.W.3d at 110.

The UCC also provides, “Unless displaced by the particular provisions of

this title, the principles of law and equity . . . shall supplement [the UCC’s]

provisions.” TEX. BUS. & COM. CODE ANN. § 1.103(b). However, “while principles

11 of common law and equity may supplement provisions of the Uniform Commercial

Code, they may not be used to supplant its provisions, or the purposes and policies

those provisions reflect, unless a specific provision of the Uniform Commercial

Code provides otherwise.” TEX. BUS. & COM. CODE ANN. § 1.103 cmt. 2 (emphasis

in original)1; see Contractors Source, 462 S.W.3d at 138 (“To the extent they do

not conflict with the Uniform Commercial Code’s provisions, common law

principles complement the Uniform Commercial Code.”) (quoting Plano Lincoln

Mercury, Inc. v. Roberts, 167 S.W.3d 616, 624 (Tex. App.—Dallas 2005, no pet.)).

Thus, unless a specific provision of the UCC provides otherwise, the UCC

“preempts principles of common law and equity that are inconsistent with either its

provisions or its purposes and policies.” TEX. BUS. & COM. CODE ANN. § 1.103

cmt. 2. The UCC’s preemptive effect “extends to displacement of other law that is

inconsistent with the purposes and policies of the Uniform Commercial Code, as

well as with its text.” Id.

Chapter 4 of the UCC establishes the rights and duties between banks and

their customers regarding deposits and collections. See id. §§ 4.101–.504; Am.

Airlines Emps. Fed. Credit Union v. Martin, 29 S.W.3d 86, 91 (Tex. 2000).

1 As the Fifth Circuit Court of Appeals has recently observed, “The UCC official commentary is an authoritative interpretation of the Code.” Jones v. Wells Fargo Bank, N.A., 666 F.3d 955, 960 n.5 (5th Cir. 2012). “Barring a contrary interpretation from the Texas courts, we are guided by the official commentary.” Id. 12 Chapter 4 imposes certain warranty obligations on customers who deposit checks

drawn on other banks, establishes the circumstances under which settlements for

such checks are provisional, and gives banks the right to charge back such

settlements in the event that the check is dishonored by the drawee bank.

Section 4.207 of the UCC imposes the warranty obligations. Under section

4.207, when a customer deposits a check into his bank account and receives a

settlement or other consideration for the check, he makes certain warranties to the

bank. TEX. BUS. & COM. CODE ANN. § 4.207(a). Those warranties include that the

customer is “a person entitled to enforce the item” and that “all signatures on the

item are authentic and authorized.” Id. § 4.207(a)(1)–(2). These warranties “cannot

be disclaimed with respect to checks.” Id. § 4.207(d). If the customer breaches

these warranties, a bank that took the check “in good faith” may recover from the

customer as damages “an amount equal to the loss suffered as a result of the

breach, but not more than the amount of the item plus expenses and loss of interest

incurred as a result of the breach.” Id. § 4.207(c).

Section 4.201 establishes the provisional status of settlements. Under section

4.201, when a bank collects on a check deposited by its customer, the bank acts as

the customer’s agent. Id. § 4.201(a). Unless a contrary intent clearly appears, any

settlement given for the check is provisional until the settlement becomes final. Id.

13 Section 4.201 applies even if credit given for the check is subject to immediate

withdrawal or is in fact withdrawn. Id.

Section 4.214 establishes a bank’s right of charge-back. Under Section

4.214, if a customer deposits a check into his bank account and the bank credits the

customer’s account with provisional settlement funds, the bank may revoke the

settlement and charge back the account if the check is later dishonored by the

drawee. Id. § 4.214(a).

Finally, section 4.103 of the UCC states, in relevant part, that “[t]he effect of

the provisions of this chapter may be varied by agreement.” Id. § 4.103(a). The

official comments explain that section 4.103 “confers blanket power to vary all

provisions of the Article by agreements of the ordinary kind.” Id. § 4.103 cmt. 2.

“The agreement may be direct, as between the owner and the depositary bank; or

indirect, as in the case in which the owner authorizes a particular type of procedure

and any bank in the collection chain acts pursuant to such authorization.” Id. As

applicable here, section 4.103 provides that the terms of the UCC may be varied by

a customer’s deposit account agreement with a bank. However, Elizondo’s Deposit

Agreement was in accord with all of these UCC provisions.

C. The UCC preempts Elizondo’s common-law and equitable defenses

Contrary to Elizondo’s argument and the majority’s holding, principles of

common law and equity cannot alter the “comprehensive and carefully considered 14 allocation of responsibility among parties to banking relationships.” See Am.

Dream Team, Inc. v. Citizens State Bank, 481 S.W.3d 725, 732 (Tex. App.—Tyler

2015, pet. denied) (citing Sw. Bank, 149 S.W.3d at 107, and Martin, 29 S.W.3d at

91). Accordingly, the UCC preempts common-law defenses to a bank’s right to

charge back provisional settlement funds. See, e.g., id. (holding that depositor’s

claim that charge back breached deposit agreement was preempted by UCC);

Avanta Fed. Credit Union v. Shupak, 223 P.3d 863, 871 (Mont. 2009) (holding that

credit union’s statutory charge-back rights were not subject to equitable estoppel).

The Texas courts have consistently followed this reasoning. See Martin, 29

S.W.3d at 91 (stating that UCC Chapter 4 establishes rights and duties between

banks and their customers regarding deposits and collections); Rodriguez v. NBC

Bank, 5 S.W.3d 756, 765 (Tex. App.—San Antonio 1999, no pet.) (holding that

bank was entitled to charge item back to its customer’s account after payor bank

initially paid item but then subsequently reversed payment); Bill Hart Auto Sales,

Inc. v. Comerica Bank-Tex., 893 S.W.2d 705, 708 (Tex. App.—Eastland 1995, no

pet.) (holding that when customer “authorized the transfer of the funds from its

account, that authorization did not affect the Bank’s right to charge-back the

account for the provisional credit when the Bank failed to receive a settlement for

the item from the drawee bank”).

15 Elizondo ignores the plain language of the UCC, as well as his Deposit

Agreement. He argues that the form requesting that funds be wire-transferred from

his account to a third-party account constituted a subsequent enforceable

agreement with Cadence. He contends that Cadence had a duty under the wire-

transfer agreement to transfer the funds from a “verified collected balance”—

which he construes as funds that have actually been collected and their collection

verified, not funds that are only provisionally verified subject to settlement, in

accordance with the bank’s custom and practice and the UCC. He further claims

that Cadence breached its duty, as set out in the wire-transfer agreement, by

transferring funds without verifying whether the funds came from a “collected

balance.” He argues that if Cadence had fulfilled its duty and inquired into the

“collected balance” prior to the wire transfer, it would have determined that he

lacked sufficient funds in the account to complete the wire transfer and it would

not have allowed the wire transfer with provisional funds from a check that had not

been settled by Chase, the drawee bank. Elizondo contends that, if Cadence had

not honored his wire transfer request until after it had collected the settlement

funds from Chase, Cadence would simply have charged back the provisional credit

to Elizondo with no loss to Cadence. Therefore, Elizondo argues, Cadence’s

damages were the result of Cadence’s own actions. Elizondo also argues that

Cadence’s breach of the wire transfer agreement by completing the transfer with

16 only provisionally collected funds entitle him to offset the charge-back by the

amount of the overdraft. The majority agrees with him.

This is not, however, how the law works, as it would nullify Elizondo’s

warranty that the funds represented by the cashier’s check were good, his knowing

request that the funds be transferred while only provisionally deemed collected, his

acceptance of the risk that the funds would not ultimately prove collectible from

Chase, and his agreement in the Deposit Agreement that, should the check be

dishonored by Chase, Cadence could charge the overdraft back to him. In other

words, Elizondo’s argument—which the majority accepts—contradicts the terms

of both the UCC and the Deposit Agreement he executed.

As the majority acknowledges, once the check was dishonored by Chase,

Cadence was entitled to charge back the provisional settlement funds. See Slip Op.

at 2 (citing TEX. BUS. & COM. CODE ANN. § 4.214(a)).

The majority, however, denies that section 4.214(a) controls this case,

holding that, “by failing to transfer the funds from a ‘verified collected balance,’”

as it uniquely defines that term, Cadence “breached the parties’ wire transfer

agreement, thereby causing the overdraft and entitling Elizondo to offset the

chargeback by the amount of overdrawn funds.” Slip Op. at 2. This holding is

contradictory to the plain language of both the UCC and the Deposit Agreement

and depends entirely upon Elizondo’s and the majority’s own construction of the

17 term “verified collected balance,” which is contrary to that used by Cadence in its

ordinary course of business and is inconsistent with the purposes and text of both

the UCC and the Deposit Agreement set out above. See TEX. BUS. & COM. CODE

ANN. § 1.103 cmt. 2 (“[W]hile principles of common law and equity may

supplement provisions of the Uniform Commercial Code, they may not be used to

supplant its provisions, or the purposes and policies those provisions reflect, unless

a specific provision of the Uniform Commercial Code provides otherwise.”).

Elizondo and the majority argue, however, that the UCC does not

necessarily preempt common-law defenses to a bank’s right to recover an overdraft

caused by a statutory charge back of provisional settlement funds. Slip Op. at 20.

Relying on its own construction of terms and common-law principles, the majority

“hold[s] that the parties entered into a valid, enforceable agreement to wire transfer

funds from Elizondo’s account to a third-party account in Japan and that the terms

of that agreement are set forth in the wire transfer request form.” Slip Op. at 24. It

then holds that Cadence breached the contract by signing the blank on the wire-

transfer agreement Elizondo had returned to the bank which stated that the funds

were transferred from a “verified collected balance,” when the funds in Elizondo’s

account had not been verified as actually being in the account, as opposed to being

provisionally settled under Elizondo’s warranty, and that Cadence therefore must

bear the loss. See Slip Op. at 25–31. Notably, the only cases the majority cites in

18 support of its holding that Elizondo’s claims against Cadence are not preempted by

the UCC are cases from other states based on a bank’s misrepresentation to its

customer, not to itself on a wire-transfer form. See Slip Op. at 20 (citing cases).

In reaching its holding, the majority does exactly what the UCC prohibits: it

relies on its own construction of terms and common-law principles that directly

contradict the principles and text of the UCC.

Not only does no provision of the UCC provide otherwise, the Deposit

Agreement Elizondo signed expressly affirms the plain language of section 4.214.

The Deposit Agreement specifically provides that any item accepted for deposit

“may be subject to later verification and final payment,” and Cadence may “deduct

funds from your account if an item is . . . returned to us unpaid . . . even if you

have already used the funds.” It also expressly states, “Credit for any item we

accept for deposit to your account . . . is provisional and may be revoked if the

item is not finally paid, for any reason, in cash or its equivalent,” and it was

Cadence’s policy to provide a provisional credit pending final settlement of the

check.

In Southwest Bank, a similar case, the Texas Supreme Court refused to apply

proportionate responsibility provisions of the Texas Civil Practice and Remedies

Code by refusing to permit a bank to join an employee who deposited her

employer’s checks into her personal account at the bank as a responsible third

19 party in the employer’s conversion action against the bank. Id. at 104–05. The

court reasoned, “Were we to impose Texas’s proportionate responsibility scheme

on Revised Article 3 [of the UCC], parties litigating UCC-based conversion claims

in Texas would face a unique liability scheme, overriding the UCC’s express

purpose of furthering uniformity among the states.” Id. at 110. It further observed,

“[T]he UCC is ‘carefully integrated and intended as a uniform codification of

permanent character covering an entire ‘field’ of law, [and] is to be regarded as

particularly resistant to implied repeal.’” Id. at 111 (quoting TEX. BUS. & COM.

CODE ANN. § 1.104 cmt. 1).

The situation in Southwest Bank is analogous to that in this case. Yet here,

rather than following the Texas Supreme Court, the majority overrides UCC

sections 4.201, 4.207, and 4.214, allowing the bank to charge back to the customer

unpaid funds the customer ordered transferred during the time in which the funds

were only provisionally collected, and Elizondo’s Deposit Agreement expressly

acknowledging that right of the bank under the UCC.

20 Conclusion

I would hold that Cadence was entitled to summary judgment. Accordingly,

I would reverse the trial court’s judgment and render judgment for Cadence Bank.

Evelyn V. Keyes Justice

Panel consists of Justices Keyes, Higley, and Landau.

Justice Keyes, dissenting.