                              Fourth Court of Appeals
                                     San Antonio, Texas

                                 MEMORANDUM OPINION
                                        No. 04-13-00383-CV

                       Arthur VEGA Individually and d/b/a Dolco Packaging,
                                          Appellants

                                              v.
                                            Compass
                                         COMPASS BANK,
                                            Appellee

                      From the 57th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012-CI-07719
                              Honorable Laura Salinas, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: March 12, 2014

AFFIRMED IN PART; REVERSED IN PART AND REMANDED

           This is an appeal from a summary judgment rendered in favor of appellee, Compass Bank.

On appeal, appellants, Arthur Vega individually and doing business as Dolco Packaging, challenge

the summary judgment on liability and on the amount of attorney’s fees, expenses, and costs

awarded to Compass. We affirm the summary judgment on liability, but reverse the trial court’s

award of attorney’s fees and remand for further proceedings.
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                                               BACKGROUND

           In the lawsuit, Compass alleged a check in the amount of $114,280.07 made payable to

Dolco Packaging (hereinafter, “the check”) was deposited into a Compass Bank account titled to

Dolco Packaging. James Ballweg, Jr. and Vega were signers on the account. According to

Compass, over the next few weeks the proceeds were transferred out of the Dolco account. The

check was later returned by Harris Bank as forged, and as a result, the Dolco account became

overdrawn in excess of $100,000. Compass sued Ballweg individually and doing business as

Dolco Packaging, and Arthur Vega individually and doing business as Dolco Packaging

(collectively, “the defendants”). Compass then filed a traditional motion for summary judgment

against all defendants. The trial court rendered a partial summary judgment in favor of Compass

against Ballweg and severed the remaining claims. The trial court later rendered a final summary

judgment against Vega individually and doing business as Dolco Packaging for $70,878.03 in

damages; $8,279.22 in attorney’s fees, expenses, and costs; and statutory post-judgment interest.

Vega and Dolco Packaging (hereinafter, “Vega”) now appeal. 1

                               SUMMARY JUDGMENT ON LIABILITY

           In its motion for summary judgment, Compass asserted the defendants took possession of

and negotiated the check, and were provided credit in their bank account for the amount of the

check. Compass alleged the defendants then transferred the funds to other bank accounts and/or

allegedly absconded with the proceeds. Compass contends it is entitled to charge back or obtain a

refund from defendants in the amount of the check. Therefore, Compass argues under both the

terms of a deposit agreement entered into with the defendants and under the provisions of the

Texas Business and Commerce Code, Vega should be liable to Compass for damages resulting



1
    Ballweg has not appealed the summary judgment against him.

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from the defendants’ improper actions. Because Compass based its entitlement to summary

judgment on two grounds—breach of contract and provisions of the Business and Commerce

Code—and because the trial court did not state the grounds on which it rendered judgment in favor

of Compass, we will affirm the summary judgment if any of the theories advanced are meritorious.

Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). We first address Compass’s breach of contract

claim.

         The elements of a breach of contract claim are: (1) the existence of a valid contract between

Compass and Vega; (2) Compass performed or tendered performance; (3) Vega breached the

contract; and (4) Compass was damaged as a result of the breach. See Southwell v. Univ. of the

Incarnate Word, 974 S.W.2d 351, 354-55 (Tex. App.—San Antonio 1998, pet. denied) (listing

elements).

         As evidence of the existence of a contract between itself and Vega, Compass attached to

its motion for summary judgment a copy of the Dolco Packaging “Non-Personal Deposit Account

Signature Card,” which is signed by both Vega and Ballweg.              The card states that “[t]he

undersigned agree(s) to the terms and conditions of the Non-Consumer Account Agreement and

acknowledge(s) receipt of a copy of the Agreement and a current interest and service charge

schedule or disclosure.” Compass also attached a copy of the Agreement.

         As evidence that it tendered performance by providing provisional credit on the check,

Compass relied on the following summary judgment evidence. Compass attached the affidavit of

its employee, Cynthia Capron, who stated the check was deposited into defendants’ bank account,

Harris Bank later sent a forged endorsement claim, and the defendants used the funds deposited

into the account. Attached to Capron’s affidavit were several exhibits, including: (1) a copy of the

check, (2) the signature card and Agreement, and (3) Dolco Packaging bank statements showing



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the deposit of the check. Compass also relied on the “Deposits and Collections” section of the

Agreement, which provides as follows:

       Any item that we cash or accept for deposit may be subject to later verification and
       final payment. We may deduct funds from your account if . . . [an item] is returned
       to us unpaid, or if it was improperly paid, even if you have already used the funds.
       ...

       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.

       As evidence of Vega’s breach and that it was damaged by the breach, Compass relied on

other exhibits to Capron’s affidavit, such as: (1) Dolco Packaging bank statements showing various

withdrawals from the account and an overdrawn ending balance (as of February 29, 2012) in the

amount of -100,878.03, and (2) Harris Bank’s refund request. Compass also relied on a section of

the Agreement entitled “Insufficient Available Balance and Overdrafts” that states, in part,

       [i]n the event you fail to pay the amount of any overdraft and all associated service
       charges and we refer your overdrawn account to an attorney for collection, you
       agree to pay all reasonable expenses, including without limitation, attorney’s fees
       and court costs, incurred by us as a result of your account being overdrawn.

       In his response to Compass’s motion for summary judgment, Vega did not dispute the

existence of a contract, that Compass tendered performance by giving provisional credit on the

check, that the Dolco Packaging account later became overdrawn, or that the overdraft was not

repaid. Instead, Vega relied on various provisions of the Texas Business and Commerce Code for

his argument that he is not liable for any damages because he did not endorse the check, did not

receive any proceeds represented by the check, and did not convert the check.

       We do not address Vega’s arguments under the Business and Commerce Code because we

conclude Compass established its breach of contract claim as a matter of law. Under the

Agreement, Compass was entitled to provide only provisional credit for a deposit and Compass

was entitled to seek repayment of any overdraft and associated charges from any account owner.
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It is undisputed that Vega was a signer on the Dolco Packaging account and, as such, subject to

the terms of the Agreement. Therefore, we conclude the trial court properly rendered summary

judgment in favor of Compass on liability under Compass’s breach of contract claim.

                                       ATTORNEY’S FEES

         Vega devotes almost the entirety of his brief on appeal to the trial court’s award of

attorney’s fees, expenses, and costs to Compass in the amount of $8,279.22. On appeal, Vega

argues the affidavit on which Compass relied, that of Compass attorney William P. Huttenbach, is

insufficient to support the amount of the award. Vega also challenges the reasonableness of the

award.

         In his affidavit, Huttenbach stated he charges $315.00 per hour and:

         I, or another attorney or paralegal with my firm, researched the facts and law
         involved in the matter, reviewed and analyzed various documents, drafted various
         documents, motions and pleadings involving this dispute. I, or another attorney or
         paralegal, have drafted a demand letter, original petition, written discovery to both
         Defendants, and prepared this Motion for Summary Judgment against Defendants
         and supporting exhibits and affidavits. I have drafted settlement documents,
         motions to compel and had many communications with Defendants and my client.

         Huttenbach concluded that Compass “has incurred or expects to incur in excess of

[$8,279.22] in reasonable and necessary attorney’s fees, costs and expenses in this matter.” On

appeal, Vega complains the affidavit is insufficient to support the award because it does not itemize

a breakdown between attorney’s fees and costs/expenses; there is nothing in the record

documenting the award; and Compass is not entitled to expenses in addition to court costs.

         An attorney’s affidavit can sufficiently establish reasonable attorney’s fees on a motion for

summary judgment. American 10–Minute Oil Change, Inc. v. Metropolitan Nat’l Bank-Farmer’s

Branch, 783 S.W.2d 598, 602 (Tex. App.—Dallas 1989, no writ); Querner Truck Lines, Inc. v.

Alta Verde Indus., Inc., 747 S.W.2d 464, 468 (Tex. App.—San Antonio 1988, no writ). However,

the nonmovant may create a fact issue by filing an affidavit contesting the reasonableness of the
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movant’s attorney’s fees. Gen. Specialties, Inc. v. Charter Nat’l Bank-Houston, 687 S.W.2d 772,

774 (Tex. App.—Houston [14th Dist.] 1985, no writ).

       Vega, who is himself an attorney, filed his affidavit in which he stated:

       [Huttenbach] submitted no evidence regarding when he was licensed; how many
       years he has engaged in this type of litigation; how many cases he has tried as first
       chair; and whether he has any certifications to justify such an hourly rate. . . . I
       object to such fees as not being reasonable and necessary. . . . I object to an award
       of any expenses and costs since there is no evidence to support such an award.

       We conclude Vega’s affidavit was sufficient to raise a fact issue on both the amount and

the reasonableness of the award. Therefore, the trial court erred in awarding attorney’s fees,

expenses, and costs to Compass on this record.

                                        CONCLUSION

       For the reasons stated above, we affirm the trial court’s summary judgment in favor of

Compass Bank on liability under Compass’s breach of contract claim. However, we reverse the

trial court’s award of attorney’s fees, expenses, and costs to Compass in the amount of $8,279.22

and we remand for further proceedings on the amount, if any, to be awarded Compass for

attorney’s fees, expenses, and costs.



                                                       Sandee Bryan Marion, Justice




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