                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-09-171-CV


LAVERNE RALL GUNDERSON                                            APPELLANT
                                                                AND APPELLEE

                                            V.

W ELLS FARGO BANK, N.A.                                            APPELLEE
                                                              AND APPELLANT


                                        ------------

          FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY

                                        ------------

                          MEMORANDUM OPINION 1

                                        ------------

                                  I. INTRODUCTION

      Laverne Rall Gunderson and W ells Fargo Bank, N.A. both filed appeals from

a final judgment. The final judgment incorporated the trial court’s interlocutory

orders granting partial summary judgment in favor of W ells Fargo, denying

Gunderson’s motion for summary judgment, and awarding W ells Fargo attorney’s


      1
           See Tex. R. App. P. 47.4.
fees. In two issues, Gunderson argues that the trial court erred by granting W ells

Fargo’s motion for summary judgment while denying hers and that the trial court

erred by awarding attorney’s fees to W ells Fargo. In one issue, W ells Fargo argues

that the trial court erred by placing a limitation on the manner in which W ells Fargo

could collect upon the attorney’s fees judgment against Gunderson. W e will affirm.

                                  II. B ACKGROUND

      Until recently, Gunderson, a resident of Crowley, Texas, maintained both a

savings account and a checking account with W ells Fargo. In late March 2008, the

California State Board of Equalization (“Board”) sent a notice of levy to W ells Fargo

seeking payment of funds from Gunderson’s bank accounts. The notice of levy

related to alleged unpaid taxes owed by Gunderson’s husband in California. The

levy also included an accompanying affidavit by one of the Board’s tax compliance

specialists attesting to the tax levy’s authenticity.    At the time of the notice,

Gunderson’s bank account balances totaled $6,839.31.

      In response to the notice of levy, W ells Fargo debited Gunderson’s accounts

and sent all funds in the accounts to the Board. Additionally, W ells Fargo forwarded

the notice of levy to Gunderson, notified her that her accounts had been debited, and

informed her that if she had any objections to the levy, she should contact the Board.

W ells Fargo then charged Gunderson a $100 fee against her accounts relating to

its response to the notice of levy.




                                          2
      Gunderson filed a breach of contract claim against W ells Fargo. In her

petition, Gunderson argued that the Board did not have legal authority to debit

monies from her accounts held in her name, that the Board did not have jurisdiction

over her husband to pursue a tax debt, and that W ells Fargo had breached its

contract with her by refusing her demands for the funds and paying them to the

Board. Furthermore, Gunderson argued that any conduct by W ells Fargo based on

the Board’s request is not excused.       Gunderson filed a motion for summary

judgment on her breach of contract claim and also asked for attorney’s fees.

      W ells Fargo responded with its own motion for summary judgment,

contending, among other arguments, that it was entitled to act upon the notice of

levy under the consumer account agreement between itself and Gunderson.

Furthermore, W ells Fargo alleged that, per the agreement, it was entitled to

attorney’s fees incurred in responding to Gunderson’s lawsuit.        The consumer

account agreement states in part:

      Legal Process. The Bank may accept and act on any legal process
      that it believes is valid, whether served in person, by mail or by
      electronic notification, at any location of the Bank. “Legal Process”
      includes a levy, garnishment or attachment, tax levy or withholding
      order, injunction, restraining order, subpoena, search warrant,
      government agency request for information, forfeiture, seizure, or other
      legal process relating to your Account. Any such legal process is
      subject to the Bank’s security interest and right of setoff. The Bank will
      not notify you of a grand jury subpoena affecting you or your Account.
      Any fees or expenses (including attorney’s fees and expenses) the
      Bank incurs in responding to any such legal process may be charged
      against any account you maintain with the Bank.



                                          3
      The trial court granted W ells Fargo’s summary judgment motion pertaining to

its defense that it was entitled to act upon the notice of levy. The trial court denied

Gunderson’s motion for summary judgment. The trial court then held a hearing

regarding the propriety of W ells Fargo recovering attorney’s fees. Neither party

requested that a reporter’s record be made of this hearing. The trial court found that

the consumer account agreement entitled W ells Fargo to recover attorney’s fees

relating to this lawsuit but limited the manner in which those fees could be collected

to charging against Gunderson’s accounts at W ells Fargo only.            This appeal

followed.

                                   III. D ISCUSSION

      A.     Wells Fargo was contractually entitled to respond to the levy

      In her first issue, Gunderson argues that the trial court erred by granting W ells

Fargo’s summary judgment and denying her own. Specifically, Gunderson argues

that because a California court eventually found that California, and thus the Board,

did not have personal jurisdiction over her husband to pursue unpaid taxes, W ells

Fargo wrongfully paid monies from her accounts to the Board.             Furthermore,

Gunderson argues that the consumer account agreement states that the laws of

Texas control over any agreement between herself and W ells Fargo; thus, W ells

Fargo’s reliance on the notice of levy, predicated on California law, would be

erroneous.




                                          4
      W ells Fargo responds that Gunderson’s argument pertaining to the

properness of its response to the notice of levy—and what laws apply to the

levy—are unavailing because the consumer account agreement specifically provides

that W ells Fargo may act upon “any legal process that it believes is valid” and that

the agreement specifically includes W ells Fargo’s right to respond to a tax levy.

W ells Fargo also argues that it was legally required to comply with the levy. W e

agree with W ells Fargo that it was contractually entitled to respond to the tax levy.

             1.    Standard of review

      In a summary judgment case, the issue on appeal is whether the movant met

the summary judgment burden by establishing that no genuine issue of material fact

exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ.

P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W .3d 844,

848 (Tex. 2009). W e review a summary judgment de novo. Mann Frankfort, 289

S.W .3d at 848.

      W e take as true all evidence favorable to the nonmovant, and we indulge

every reasonable inference and resolve any doubts in the nonmovant’s favor.

20801, Inc. v. Parker, 249 S.W .3d 392, 399 (Tex. 2008); Sw. Elec. Power Co. v.

Grant, 73 S.W .3d 211, 215 (Tex. 2002). W e consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort, 289 S.W .3d at 848.


                                          5
W e must consider whether reasonable and fair-minded jurors could differ in their

conclusions in light of all of the evidence presented. See Wal-Mart Stores, Inc. v.

Spates, 186 S.W .3d 566, 568 (Tex. 2006); City of Keller v. Wilson, 168 S.W .3d 802,

822–24 (Tex. 2005).

      The summary judgment will be affirmed only if the record establishes that the

movant has conclusively proved all essential elements of the movant’s cause of

action or defense as a matter of law. City of Houston v. Clear Creek Basin Auth.,

589 S.W .2d 671, 678 (Tex. 1979).

      W hen a trial court’s order granting summary judgment does not specify the

ground or grounds relied on for its ruling, summary judgment will be affirmed on

appeal if any of the theories presented to the trial court and preserved for appellate

review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W .3d 211,

216 (Tex. 2003); Star-Telegram, Inc. v. Doe, 915 S.W .2d 471, 473 (Tex. 1995).

W hen the trial court’s judgment rests upon more than one independent ground or

defense, the aggrieved party must assign error to each ground, or the judgment will

be affirmed on the ground to which no complaint is made. Scott v. Galusha, 890

S.W .2d 945, 948 (Tex. App.—Fort W orth 1994, writ denied).

      W hen both parties move for summary judgment and the trial court grants one

motion and denies the other, the reviewing court should review both parties’

summary judgment evidence and determine all questions presented.                Mann




                                          6
Frankfort, 289 S.W .3d at 848. The reviewing court should render the judgment that

the trial court should have rendered. Id.

             2.     The consumer account agreement

      A deposit contract between a bank and an account holder is considered a

contract in writing for all purposes. Tex. Fin. Code Ann. § 34.301(a) (Vernon Supp.

2009). The elements of a breach of contract claim are (1) a valid contract,

(2) performance or tendered performance by the plaintiff, (3) breach by the

defendant, and (4) damages sustained by the plaintiff as a result of the breach.

Harris v. Am. Prot. Ins. Co., 158 S.W .3d 614, 622–23 (Tex. App.—Fort W orth 2005,

no pet.). In suits to recover deposits, the bank has the burden of proving payment

under authority from the depositor and is obligated to pay out funds on deposit

according to the directions of the depositor. Mesquite State Bank v. Prof’l Inv. Corp.,

488 S.W .2d 73, 75 (Tex. 1972). To this end, a bank is entitled to rely on its deposit

agreement when determining to whom it is indebted. Bank One, Tex., N.A. v.

Sunbelt Sav., F.S.B., 824 S.W .2d 557, 557 (Tex. 1992); Whitney Nat’l Bank v.

Baker, 122 S.W .3d 204, 207 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

      In this instant case, Gunderson and W ells Fargo have a consumer account

agreement that specifically entitles W ells Fargo to “act on any legal process” it

believes to be valid. In the agreement, a tax levy is defined as a legal process. After

receiving the tax levy—and accompanying affidavit by one of the Board’s tax

compliance specialists attesting to the tax levy’s authenticity—W ells Fargo acted


                                            7
upon the tax levy. W ells Fargo was entitled to rely upon the consumer account

agreement and satisfied its burden of proving payment under Gunderson’s authority.

Thus, the trial court did not err by finding that W ells Fargo met its summary judgment

burden by establishing that no genuine issue of material fact exists that it made

payment to the Board under Gunderson’s authority and that Wells Fargo is entitled

to judgment as a matter of law.        See Tex. R. Civ. P. 166a(c).       W e overrule

Gunderson’s first issue.

      B.     Attorney’s fees and Wells Fargo’s $100 fee

      In her second issue, Gunderson argues that the trial court erred by awarding

attorney’s fees to Wells Fargo. Gunderson essentially makes two arguments as to

why she believes W ells Fargo is not entitled to recover attorney’s fees in this case.

First, Gunderson argues that there is no record demonstrating sufficient evidence

to support the awarding of attorney’s fees to W ells Fargo.

      In her briefing to the trial court regarding attorney’s fees—after the trial court

had granted W ells Fargo’s summary judgment and in anticipation of the pending

hearing regarding attorney’s fees—Gunderson argued only that W ells Fargo was not

entitled to attorney’s fees under the consumer account agreement. Gunderson did

not complain of a lack of evidence supporting Wells Fargo’s attorney’s fees nor did

Gunderson object to the upcoming hearing on attorney’s fees.              Furthermore,

Gunderson did not file any post-judgment motions bringing to the trial court’s

attention any alleged error in the evidence supporting the trial court’s awarding W ells


                                           8
Fargo’s attorney’s fees. As such, Gunderson has not preserved this alleged error.

See Reagan Nat’l Adver. of Austin, Inc. v. Capital Outdoors, Inc., 96 S.W .3d 490,

497 (Tex. App.—Austin 2002, pet. granted, judgm’t vacated w.r.m.) (waiver where

party failed to complain about insufficiency of evidence at hearing on attorney’s fees

and did not file a motion for a new trial or any other post-judgment motion bringing

its complaint to the trial court’s attention). But Gunderson did complain about the

propriety of W ells Fargo being entitled to attorney’s fees under the consumer

account agreement—her second argument under this issue. Therefore, we turn to

the question of whether W ells Fargo was entitled to attorney’s fees under the

consumer account agreement.

      Under Texas statutory law, a party may recover reasonable attorney’s fees

from an individual or corporation, in addition to the amount of a valid claim and costs,

if the claim is for breach of an oral or written contract. See Tex. Civ. Prac. & Rem.

Code Ann. § 38.001(8) (Vernon 2008). The phrase in the statute which reads “in

addition to the amount of a valid claim” implies that a party must first have been

awarded damages before it may be awarded attorney’s fees. Green Int’l v. Solis,

951 S.W .2d 384, 390 (Tex. 1997); State Farm Life Ins. Co. v. Beaston, 907 S.W .2d

430, 437 (Tex. 1995). Therefore, generally, attorney’s fees may not be recovered

for successfully defending a breach of contract claim. Mustang Pipeline Co. v.

Driver Pipeline Co., 134 S.W .3d 195, 201 (Tex. 2004).




                                           9
      But parties to a contract may also recover attorney’s fees if they arrange for

such recovery as a contractual term. Alma Group, L.L.C. v. Palmer, 143 S.W .3d

840, 845 (Tex. App.—Corpus Christi 2004, pet. denied) (citing New Amsterdam Cas.

Co. v. Tex. Indus., Inc., 414 S.W .2d 914, 915 (Tex. 1967)). The parties to the

contract may create their own terms, which need not correspond to chapter 38 of the

civil practice and remedies code. See Wayne v. A.V.A. Vending, Inc., 52 S.W .3d

412, 417 (Tex. App.—Corpus Christi 2001, pet. denied) (citing One Call Sys., Inc.

v. Houston Lighting & Power, 936 S.W .2d 673, 676 (Tex. App.—Houston [14th Dist.]

1996, writ denied)). The parties may agree to terms for the recovery of fees that are

either more or less liberal than the terms presented in chapter 38. Wayne, 52

S.W .3d at 417–18. In such cases, it is the language of the contract, not the statute,

that governs. Twelve Oaks Tower I, Ltd. v. Premier Allergy, Inc., 938 S.W .2d 102,

118 (Tex. App.—Houston [14th Dist.] 1996, no writ). Furthermore, it is the language

of the agreement itself—not the present interpretation of the parties—that

determines the intent of the parties, and the agreement must be enforced as written.

Pegasus Energy Group, Inc. v. Cheyenne Petroleum Co., 3 S.W .3d 112, 121 (Tex.

App.—Corpus Christi 1999, pet. denied).

      W e agree with W ells Fargo that it was entitled to rely upon the consumer

account agreement in seeking attorney’s fees in addition to charging Gunderson a

$100 fee for responding to the levy. The agreement specifically states, “Any fees or

expenses (including attorney's fees and expenses) the Bank incurs in responding to


                                         10
any such legal process may be charged against any account you maintain with the

Bank.” The phrase “[a]ny fees or expenses” contemplates that there could be both

fees and expenses—including attorney’s fees. Thus, this provision serves as the

contractual basis for the $100 charge against Gunderson and the trial court’s

determination that W ells Fargo was entitled to attorney’s fees as a result of

responding to Gunderson’s breach of contract claim.             Therefore, we overrule

Gunderson’s second issue in its entirety.

       C.     Wells Fargo is limited in the manner by which it may collect the
              contracted-for attorney’s fees

       W e now address W ells Fargo’s sole issue on appeal—whether the trial court

erred by limiting the manner in which W ells Fargo could collect its attorney’s fees.

W e conclude that the trial court was correct in limiting W ells Fargo’s ability to collect

on the attorney’s fees by only charging against an account Gunderson maintains at

a W ells Fargo bank.

       By the consumer account agreement’s own terms, W ells Fargo was entitled

to collect attorney’s fees it incurred “responding to any such legal process.” The

agreement further states that such fees “may be charged against any account you

maintain with the Bank.” Thus, W ells Fargo contracted specific language detailing

the only manner in which it could collect attorney’s fees once it responded to a legal

process.    Our text-based construction of this agreement is consistent with the

principle of expressio unius est exclusio alterius, meaning that the naming of one



                                            11
implies the exclusion of others. See CKB & Assocs., Inc. v. Moore McCormack

Petroleum, Inc., 734 S.W .2d 653, 655 (Tex. 1987) (explaining doctrine of expressio

unius est exclusio alterius); see also Mid-Century Ins. Co. of Tex. v. Kidd, 997

S.W .2d 265, 273 (Tex. 1999) (same). This maxim applies perfectly to the consumer

account agreement at issue in this case. By its terms, the agreement covers only

one manner by which W ells Fargo is entitled to collect attorney’s fees for responding

to the legal process it was faced with—the tax levy sent to it by the Board. By

specifically including this manner only—and purposely excluding all other manners

of pursuing fees—the parties in this case contracted the only manner by which W ells

Fargo could collect its fees (including attorney’s fees) incurred in responding to this

legal process. Thus, we hold that the trial court did not err by limiting W ells Fargo’s

ability to collect on the attorney’s fees by only charging against an account

Gunderson maintains at W ells Fargo. W e overrule W ells Fargo’s sole issue.

                                   IV. C ONCLUSION

      Having overruled both of Gunderson’s issues and having also overruled W ells

Fargo’s sole issue, we affirm the trial court’s judgment.



                                                      BILL MEIER
                                                      JUSTICE

PANEL: W ALKER, MCCOY, and MEIER, JJ.

DELIVERED: July 1, 2010



                                          12
