Affirmed and Opinion filed June 6, 2002.
In The
Fourteenth Court of Appeals
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NO. 14-01-00210-CV
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UNITED PLAZA-MIDLAND L.L.C., Appellant
V.
CHASE BANK OF TEXAS, N.A., Appellee
On Appeal from the 234th District Court
Harris County, Texas
Trial Court Cause No. 00-28154
O P I N I O N
This is an appeal from a judgment dismissing appellant=s claims with prejudice. In six issues, appellant claims the trial court erred in (1) sustaining special exceptions to appellant=s claims, (2) granting appellee=s no evidence motion for summary judgment, and (3) finding no fraud violation. We affirm.
Factual and Procedural Background
Appellant, United Plaza-Midland L.L.C. (AUnited@), opened a business checking account with appellee, Chase Bank of Texas, N.A. (AChase@), on July 1, 1998. By opening the account, United agreed to follow the procedures outlined in the ATerms and Conditions of Deposit Accounts for Business Accounts@ and AServices and Fees Schedule for Business Accounts.@ These documents express Chase=s authority to charge United=s account $25.00 for every check written on insufficient funds. Chase=s procedures further provide that uncollected deposits Amay result in an overdraft if there are insufficient balances@ in the account.
On September 27, 1999, Chase returned eight checks presented for payment against insufficient funds and assessed a $200.00 charge against United=s account. United filed suit on June 1, 2000, alleging Chase=s failure to pay these checks (1) breached United=s agreement with Chase, (2) violated section 34.303 of the Texas Finance Code, (3) violated the Deceptive Trade Practices-Consumer Protection Act (ADTPA@), (4) breached Chase=s duty of good faith and fair dealing, (5) constituted extortion, and (6) entitled United to attorney=s fees and an accounting. Chase filed special exceptions to United=s petition. The trial court sustained the special exceptions and dismissed all of United=s claims except breach of agreement. The trial court gave United thirty days to re-plead the breach of agreement claim with specificity. United amended its petition, alleging that Chase breached the ATerms and Conditions of Deposit Accounts for Business Accounts@ agreement (the AAgreement@).[1] United=s amended petition also contained claims that Chase failed to exercise ordinary care and committed fraud. Chase filed a motion to strike United=s claims or, in the alternative, a no evidence motion for summary judgment under Rule 166a(i). The trial court granted Chase=s motion and dismissed all of United=s claims with prejudice. United moved for a new trial, which was denied by the trial court on February 5, 2001. This appeal followed.
Standards of Review
Special Exceptions
We review de novo a trial court=s dismissal upon special exceptions; the legal question being whether the pleadings stated a cause of action. Boales v. Brighton Builders, 29 S.W.3d 159, 163 (Tex. App.CHouston [14th Dist.] 2000, pet. denied). This court is required to accept as true all factual allegations set forth in the pleading. Id. Generally, when the trial court sustains special exceptions, the pleader has two options: (1) amend the petition, as a matter of right, or (2) refuse to amend and thereby test the validity of the ruling on appeal. D.A. Buckner Constr., Inc. v. Hobson, 793 S.W.2d 74, 75 (Tex. App.CHouston [14th Dist.] 1990, orig. proceeding). However, when there is a defect in the pleadings that cannot be cured by an amendment, the trial court may dismiss claims without providing an opportunity to amend the defect. Zaremba v. Cliburn, 949 S.W.2d 822, 829 (Tex. App.CFort Worth 1997, writ denied).
Summary Judgment
Under Rule 166a(i), a party may move for summary judgment on the ground that no evidence supports one or more of the essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). We review a no evidence summary judgment de novo by construing the record in the light most favorable to the nonmovant and disregarding all contrary evidence and inferences. Merrill Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). A no evidence summary judgment is improperly granted when the respondent brings forth more than a scintilla of probative evidence that raises a genuine issue of material fact. Tex. R. Civ. P. 166a(i); Coastal Conduit & Ditching, Inc. v. Norman Energy Corp., 29 S.W.3d 282, 284 (Tex. App.CHouston [14th Dist.] 2000, no pet.). Less than a scintilla of evidence exists when the evidence is Aso weak as to do no more than create a mere surmise or suspicion@ of a fact and the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).
United=s Original Petition
In its first three issues, United argues the trial court erred by sustaining Chase=s special exceptions to United=s original petition and dismissing United=s claims for violations of the Texas Finance Code, the DTPA, and breach of the duty of good faith and fair dealing.[2] Accordingly, we must determine whether any of these claims could have been re-pleaded to state a recognized cause of action under Texas law. See Zaremba, 949 S.W.2d at 829.
Texas Finance Code ' 34.303
The trial court sustained Chase=s special exception to United=s claim that Chase violated section 34.303 of the Texas Finance Code by charging $25.00 per check written on Auncollected funds@ rather than Ainsufficient funds.@ Section 34.303 expressly permits a bank to charge or penalize account holders for account activity including, but not limited to, overdrafts, insufficient funds, or stop payment orders. See Tex. Fin. Code Ann. ' 34.303(a) (Vernon 1998). Here, Chase complied with the law by disclosing in the Agreement that $25.00 would be charged for every check written on insufficient funds and further explained that uncollected deposits Amay result in an overdraft if there are insufficient balances@ in the account. Therefore, United could not have re-pleaded this allegation in a manner that would state a cause of action. Accordingly, United=s first issue is overruled.
DTPA
The trial court sustained Chase=s special exception to United=s claim that Chase violated provisions of the DTPA. United argued that Chase intended to mislead a prospective customer that it would receive Abetter treatment@ from Chase by using the slogan Awelcome to Chase where the right relationship is everything.@ We find this case similar to Humble National Bank v. DCV, Inc., 933 S.W.2d 224, 230 (Tex. App.CHouston [14th Dist.] 1996, writ denied). In Humble National Bank, we determined that representations by a banker to his customer that the bank had a Atradition of excellence@ and Aknows its customers@ were mere puffing or opinion of the seller and lacked the specificity required to create an actionable warranty under the DTPA. Id. at 231. Similarly here, Chase slogan Awhere the right relationship is everything@ and representation of Abetter treatment@ are so vague and general they lack the specificity required to support a DTPA claim. Id. Therefore, United could not have re-pleaded this allegation in a manner that would state a recognized cause of action. We overrule United=s second issue.
Good Faith and Fair Dealing
The trial court sustained Chase=s special exception to United=s claim that Chase breached its duty of good faith and fair dealing. Texas law does not impose a duty of good faith and fair dealing on banks with respect to account holders. See, e.g., FDIC v. Coleman, 795 S.W.2d 706, 708-09 (Tex. 1990). AThe duty to act in good faith is contractual in nature, and its breach does not amount to an independent tort.@ Crim Truck & Tractor v. Navistar Int'l Transp. Corp., 823 S.W.2d 591, 595 n.5 (Tex. 1992); Adolph Coors Co. v. Rodriguez, 780 S.W.2d 477, 481 (Tex. App.CCorpus Christi 1989, writ denied). Because no such duty exists as a matter of law, United could not have re-pleaded this claim so as to state a valid cause of action. United=s third issue is overruled.
United=s Amended Petition
In issues four through six, United challenges the trial court=s decision to grant Chase=s motion to strike United=s claims or, in the alternative, for summary judgment. Because the trial court=s judgment does not specify the basis for its ruling, we may affirm on any meritorious ground presented in Chase=s motion. See K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (stating that a trial court=s ruling should be affirmed on any meritorious ground when the trial court does not specify its basis for ruling).
Ordinary Care
In its fourth issue, United contends the trial court erred by dismissing United=s claim that Chase breached its duty to exercise ordinary care. In its amended petition United claimed that Chase was subject to tort liability for Athe returning of small checks.@ However, the conduct described in United=s petition is nothing more than an alleged breach of a duty imposed by the parties= agreement. The relationship of a bank to a general depositor is contractual in nature. McCreary v. Bay Area Bank & Trust, 68 S.W.3d 727, (Tex. App.CHouston [14th Dist.] 2001, pet. dism=d). In addition, United presented no summary judgment evidence of conduct by Chase that would give rise to liability independent of the parties= agreement. Accordingly, United=s claim sounds only in contract, and Chase has no basis for recovery under a theory of negligence. See Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494 (Tex. 1991). We overrule United=s fourth issue.
Breach of Contract
United next complains the trial court erred by granting Chase=s motion for summary judgment on United=s breach of contract claim. The summary judgment evidence showed that Chase did not pay eight checks drawn on United=s account and presented for payment on September 27, 1999, in the amounts of $3.29, $24.73, $25.31, $25.64, $46.96, $74.47, $124.65, and $1,187.00. United argues sufficient funds were available in its account to cover those eight checks, and thus Chase breached the Agreement by not paying them. The only summary judgment evidence United produced to support this claim is a copy of a bank statement showing United=s account opened on September 27, 1999, with a negative balance of $425.58, but closed that same day with a positive balance of $1,784.00. United argues this supports their claim that funds were Aavailable@ at the time Chase denied payment of the checks. At best, however, this summary judgment evidence merely supports an inference that United made a deposit into the account at some point before the close of business on September 27, 1999. Texas law specifically authorizes a bank to accept, pay, certify, or charge to an account of its customer Ain any order convenient to the bank.@ See Tex. Bus. & Com. Code Ann. ' 4.303 (Vernon Supp. 2002). The Agreement states that Aany item you deposit is received for collection only.@ Although the Agreement provides that the first $100 of a daily deposit is considered Acollected@ on the day of deposit, United=s account balance would still have been negative based on the balance at the start of business on September 27, 1999.
Further, the Agreement details that under Chase=s deposit procedures, the availability of deposits is based on the deposit=s form and time of deposit.[3] United failed to present any summary judgment evidence showing when a deposit was made on September 27, 1999, or in what form it was made. Accordingly, we find United failed to meet its summary judgment burden of presenting more than a scintilla of proof that Chase breached the Agreement. The trial court did not err in granting the no evidence summary judgment. United=s fifth issue is overruled.
Fraud
Finally, United claims the trial court erred Ain finding that Chase did not commit fraud.@ In its amended petition, United alleged that Chase committed fraud by dishonoring United=s checks when funds were available. As with United=s negligence claim, nothing separates this allegation from United=s claim that Chase breached the Agreement. See DeLanney, 809 S.W.2d at 494. Even if United had met its Ano-evidence@ burden of showing that Chase had breached the Agreement, Athe mere failure to perform a contract is not evidence of fraud.@ Formosa Plastics Corp. USA v. Presidio Eng=rs & Contractors, 960 S.W.2d 41, 48 (Tex. 1998). Accordingly, this point of error is overruled.
The judgment of the trial court is affirmed.
/s/ Leslie Brock Yates
Justice
Judgment rendered and Opinion filed June 6, 2002.
Panel consists of Justices Yates, Edelman, and Wittig.[4]
Do Not Publish C Tex. R. App. P. 47.3(b).
[1] United=s brief on appeal suggests that Chase=s Asales representatives@ offered a Abetter deal and relationship,@ and the record includes an affidavit of Yigal I. Bosch, United=s manager alleging another agreement whereby Chase would cover the United account with funds from a separate Chase account in the name of A.Y.S. Enterprises Inc. However, when United re-pleaded its breach of contract claim in response to the trial court=s order, its amended petition did not identify any agreement other than the ATerms and Conditions of Deposit Accounts for Business Accounts.@
[2] The trial court=s original order also dismissed United=s claim for extortion; however, United does not appeal the dismissal of this claim.
[3] According to these procedures, only funds from electronic direct deposits made before the transaction cutoff time on a business day are made available the same day Chase receives the deposit. All other deposits are available no sooner than the first business day after the day of deposit.
[4] Senior Justice Don Wittig sitting by assignment.