   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—
                                     (nurt        tif Apiiati
                           .FiftIi Ji.itrirt      tif  xai at Oallzu;
                                           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
