                           NUMBER 13-09-00004-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


BANK OF AMERICA, N.A.,                                                    Appellant,

                                          v.

DWIGHT EISENHAUER, INDIVIDUALLY AND AS
INDEPENDENT EXECUTOR OF THE ESTATE OF
LORENE BELCHER WALTER, DECEASED,                                          Appellee.


                On appeal from County Court at Law No. 1
                       of Nueces County, Texas.


                        MEMORANDUM OPINION

            Before Justices Rodriguez, Garza, and Benavides
              Memorandum Opinion by Justice Rodriguez

      Appellee Dwight Eisenhauer, individually and as independent executor of the estate

of Lorene Belcher Walter, deceased, sued appellant Bank of America, N.A. (Bank of

America) to recover $27,497.67 Bank of America paid to Jo Ann Day. Each party filed a
motion for traditional and no-evidence summary judgment.                      The trial court granted

Eisenhauer's motion and denied Bank of America's motion. A jury trial was held on

Eisenhauer's request for attorney's fees.1 The trial court entered a final judgment awarding

Eisenhauer, individually and as independent executor of Lorene's estate, damages and

attorney's fees. By six issues, which we reorganize as four, Bank of America contends (1)

the trial court erred in granting summary judgment in favor of Eisenhauer because he failed

to state the grounds upon which the motion was made; (2) the trial court erred in denying

Bank of America's no-evidence motion for summary judgment because Eisenhauer

provided no evidence to support various elements of his claims; (3) the trial court erred in

denying Bank of America's traditional motion for summary judgment because Eisenhauer,

as executor of Lorene's estate, was estopped from pursuing his claim; and (4) the trial

court erred by failing to require Eisenhauer to segregate his attorney's fees' evidence. We

affirm, in part, reverse and render, in part, and reverse and remand, in part.

                                             I. BACKGROUND 2

        In June 2003, Lorene and her husband, H.W., renewed a certificate of deposit (the

Walter CD) account at Bank of America. The certificate was titled "H. W. Walter and

Lorene Walter ITF Jo Ann Day and Dwight Eisenhauer." H.W. died in June 2004. Lorene,

as co-owner of the Walter CD and the surviving spouse, became the sole owner of the

Walter CD. Upon the death of Lorene, any remaining sums were to be paid in equal

shares to Day and Eisenhauer.


        1
         The jury found reasonable attorney's fees to be $31,500 for preparation and trial, $15,000 for an
unsuccessful appeal to the court of appeals by Bank of Am erica, and $15,000 for an unsuccessful appeal by
Bank of Am erica to the Texas Suprem e Court. The trial court also awarded pre- and post-judgm ent interest
and $1,409.90 representing costs and fees incurred by Eisenhauer during the course of the lawsuit.

        2
            The facts set out in the background section are undisputed.

                                                       2
       On July 16, 2004, Day, a long-time employee of Eisenhauer and co-executor with

Eisenhauer of H.W.'s estate, presented H.W.'s death certificate to Bank of America. Day

requested that Bank of America's employee, Joyce Sheen, distribute funds from the Walter

CD to Day and Eisenhauer even though Lorene was still alive. Sheen complied with Day's

request and issued a cashier's check in the amount of $27,497.67 to Day. A second

cashier's check in an equal amount was issued and mailed to Eisenhauer. At Day's

request, Sheen closed the Walter CD account. Bank of America acknowledges that it

made an error when it distributed these funds to Eisenhauer and Day. Eisenhauer

returned the check issued to him and, pursuant to his power of attorney, opened a new

account in Lorene's name with himself as the only beneficiary. Eisenhauer deposited his

check into that account.

       Bank of America phoned Day to inform her of the error. Day responded that she

would have her attorney contact Sheen. Bank of America also contacted Day regarding

the money through three letters written between July 28, 2004 and August 27, 2004. On

August 16, 2004, Day's attorney tendered $5,000 to Bank of America. On November 17,

2004, Bank of America's legal department wrote to Day's attorney, acknowledging that Day

had offered to pay Bank of America part of the money as a lump sum with the remaining

amounts to be paid in installments. In its November 17 letter, Bank of America rejected

Day's offer and advised her that it would consider legal remedies, including litigation, if

payment was not received within ten days from the date of the letter.

       On August 27, 2004, Beverly Wynone Belcher Ringland was appointed temporary

guardian of the person and the estate of Lorene, and her appointment was continued and




                                            3
confirmed on October 22, 2004.3 On or about February 2, 2005, Ringland delivered a

document to Bank of America, which recited the following: (1) the Walter CD designated

Day and Eisenhauer as payable-on-death beneficiaries; (2) H.W. died on June 20, 2004;

(3) Bank of America mistakenly permitted Day to withdraw funds from the Walter CD

account and distributed, in error, the proceeds in equal shares to Day and Eisenhauer; (4)

Eisenhauer returned his distribution to Bank of America; (5) Day retained her distribution

despite Bank of America's demands; (5) Ringland was appointed guardian of the person

and estate of Lorene; and (6) "Ringland, in her fiduciary capacity as guardian for [Lorene],

desires that Day retain the funds received by her and that [Bank of America] withdraw its

demand on Day to return funds to the Account." In addition to the above recitals, the

Ringland document contained the following paragraph titled "Agreement":

        Therefore, in consideration of forbearance from recovery efforts by the Bank
        against Day, Ringland, in her fiduciary capacity as guardian for Walter,
        agrees to indemnify, defend, protect, and hold Bank of America harmless
        from and against any and all claims, demands, losses, costs, expenses,
        obligations, liabilities, and damages, including reasonable attorney's fees and
        costs, that Bank of America may incur or suffer in connection with or
        resulting from the Withdrawal.

Following receipt of this document, Bank of America returned the $5,000 check to Day's

attorney and took no further actions to collect the money from Day.

        On March 7, 2005, Eisenhauer replaced Ringland as court-appointed guardian for

Lorene's person and estate. Lorene died on May 2, 2005, and on May 25, 2005,

Eisenhauer became independent executor of Lorene's estate. Eisenhauer filed suit

against Bank of America on September 13, 2005, asserting claims for breach of contract,

        3
        The August 27, 2004 order appointing Beverly W yone Belcher Ringland tem porary guardian of the
person and estate of Lorene Belcher W alter and the October 22, 2004 order continuing and confirm ing her
appointm ent provided, inter alia, that Ringland "shall have . . . the power and duty to preserve all claim s of the
W ard."

                                                         4
violation of state law,4 negligence, gross negligence, and breach of fiduciary duty;

Eisenhauer requested actual damages, punitive damages, and attorney's fees. In his

petition, Eisenhauer alleged that one of the assets of Lorene's estate "was a cause of

action against Bank of America for wrongfully, illegally and negligently closing [the Walter

CD account] . . . and wrongfully and illegally paying one-half of such funds to a third party

not entitled to such funds." Bank of America and Eisenhauer filed motions for traditional

and no-evidence summary judgment. The trial court granted summary judgment for

Eisenhauer and denied Bank of America's motion. After a jury determined the amount of

Eisenhauer's attorney's fees, the trial court entered final judgment awarding Eisenhauer

actual damages of $27,797.67 and attorney's fees of $61,000. This appeal ensued.

                                        II. STANDARD OF REVIEW

A. Summary Judgment Generally

        Ordinarily, when both sides move for summary judgment and the trial court grants

one motion and denies the other, the Court reviews the motions and all summary judgment

evidence and renders the judgment that the trial court should have rendered. SAS Inst.,

Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex. 2005) (per curiam); Barrand, Inc. v.

Whataburger, Inc., 214 S.W.3d 122, 129 (Tex. App.–Corpus Christi 2006, pet. denied)

(citing Comm'rs Court v. Agan, 940 S.W.2d 77, 81 (Tex. 1997)). "However, we may also

reverse the judgment and remand the cause when we find that course proper." K3 Enters.

v. McDaniel, 8 S.W.3d 455, 458 (Tex. App.–Waco 2000, pet. denied) (citing Coker v.

Coker, 650 S.W.2d 391, 392 (Tex. 1983) (providing that the property settlement agreement



        4
         Specifically, Eisenhauer claim ed that Bank of Am erica violated the express provisions of section 447
of the Texas Probate Code. See T EX . P R O B . C OD E A N N . § 447 (Vernon 2007).

                                                      5
that the trial court found unambiguous was found ambiguous by the supreme court and the

cause was remanded for the trier of fact to resolve the ambiguity); Sosa v. Williams, 936

S.W.2d 708, 711 n.1 (Tex. App.–Waco 1996, writ denied) (concluding that remand was

proper when competing motions were based on different premises)).

       In reviewing motions for summary judgment, issues not expressly presented to the

trial court by written motion or response to a motion for summary judgment cannot be

considered as grounds either to affirm or reverse the trial court's judgment. TEX . R. CIV.

P. 166a(c); McConnell v. Southside I.S.D., 858 S.W.2d 337, 341 (Tex. 1993); see Mercier

v. Sw. Bell Yellow Pages, Inc., 214 S.W.3d 770, 774 (Tex. App.–Corpus Christi 2007, no

pet.) (op. on reh'g). "A motion must stand or fall on the grounds expressly presented in the

motion." McConnell, 858 S.W.2d at 341.

B. Traditional Summary Judgment

       Our review of the trial court's grant or denial of a traditional motion for summary

judgment is de novo.      See Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex.

App.–Corpus Christi 2003, no pet.) (op. on reh'g). The moving party bears the burden of

showing both no genuine issue of material fact and entitlement to judgment as a matter of

law. TEX . R. CIV. P. 166a(c); Ortega, 97 S.W.3d at 772. In deciding whether there is a

genuine issue of material fact, the Court takes evidence favorable to the non-movant as

true. Ortega, 97 S.W.3d at 772. All reasonable inferences benefit and all doubts are

resolved in favor of the non-movant. Id. Summary judgment for a defendant is proper if

the defendant disproves at least one element of each of the plaintiff's claims or

affirmatively establishes each element of an affirmative defense to each claim. Id. A non-

movant has the burden to respond to a traditional summary judgment motion if the movant


                                             6
conclusively: (1) establishes each element of its cause of action or defense; or (2) negates

at least one element of the non-movant's cause of action or defense. Id.

       In a traditional motion for summary judgment, rule 166a(c) requires that the movant

"shall state the specific grounds" upon which the motion is made. TEX . R. CIV. P. 166a(c);

see McConnell, 858 S.W.2d at 341; Red Roof Inns, Inc. v. Murat Holdings, L.L.C., 223

S.W.3d 676, 688 (Tex. App.–Dallas 2007, pet. denied) (op. on reh'g). "In determining

whether the grounds are expressly presented, reliance may not be placed on . . . the

summary judgment evidence." McConnell, 858 S.W.2d at 341. A trial court cannot grant

a summary judgment motion on grounds not presented in the motion. See id.

C. No-Evidence Summary Judgment

       A no-evidence motion for summary judgment asserts that there is no evidence of

one or more essential elements of a claim on which the adverse party will bear the burden

of proof at trial. TEX . R. CIV. P. 166a(i); Scripps Tex. Newspapers, L.P. v. Belalcazar, 99

S.W.3d 829, 840 (Tex. App.–Corpus Christi 2003, pet. denied). This type of motion must

specifically identify the elements of the claim for which there is no evidence. Meru v.

Huerta, 136 S.W.3d 383, 386 (Tex. App.–Corpus Christi 2004, no pet.). Conclusory

motions or general no-evidence challenges to an opponent's case are not appropriate

under this rule. Id. at 387. Under rule 166a(i), "[t]he court must grant the [no-evidence]

motion unless the respondent produces summary judgment evidence raising a genuine

issue of material fact." TEX . R. CIV. P. 166a(i); see Jackson v. Fiesta Mart, Inc., 979

S.W.2d 68, 70 (Tex. App.–Austin 1998, no pet.). The movant has no burden to attach any

evidence to a no-evidence motion for summary judgment. TEX . R. CIV. P. 166a(i); Ortega,

97 S.W.3d at 772. The non-movant bears the entire burden of producing evidence to


                                             7
defeat a no-evidence motion for summary judgment. TEX . R. CIV. P. 166a(i). When the

non-movant fails, the "court must grant the motion." Id.

        In reviewing a no-evidence motion, the Court applies the same legal-sufficiency

standard as it does when reviewing a directed verdict. Belalcazar, 99 S.W.3d at 840.

"'Like a directed verdict, then, the task of the appellate court is to determine whether the

[non-movant] has produced any evidence of probative force to raise fact issues on the

material questions presented.'" Id. (quoting Jackson, 979 S.W.2d at 70). To raise a

genuine issue of material fact, the non-movant must bring forth more than a scintilla of

probative evidence on the challenged element. See Jackson, 979 S.W.2d at 70; see also

Ortega, 97 S.W.3d at 772. "Less than a scintilla of evidence exists when the evidence is

'so weak as to do no more than create a mere surmise or suspicion' of a fact." Moore v.

K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.–San Antonio 1998, pet. denied) (quoting

Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). "Conversely, more than a

scintilla exists when the evidence 'rises to a level that would enable reasonable and fair-

minded people to differ in their conclusions.'" Ortega, 97 S.W.3d at 772 (quoting Transp.

Inc. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)).

                                                III. ANALYSIS

A.      Eisenhauer's Traditional Motion for Summary Judgment 5

           5
             Eisenhauer's m otion was also titled as a no-evidence m otion for sum m ary judgm ent. See T EX . R.
C IV . P. 166a(i) (stating that a party m ay be entitled to sum m ary judgm ent on the ground that there is "no
evidence of one or m ore essential elem ents of a claim or defense on which the adverse party would have the
burden of proof at trial" (em phasis added)). However, a no-evidence sum m ary judgm ent is not available to
a plaintiff arguing that his own claim s are conclusively established by the evidence, as in this case. See
Thomas v. Omar Invs., Inc., 156 S.W .3d 681, 684 (Tex. App.–Dallas 2005, no pet.) (finding that the
no-evidence sum m ary judgm ent m otion was im properly granted "[b]ecause the Carpet Mills of Am erica
defendants' m otion for sum m ary judgm ent did not specifically state which elem ents of the Thom ases' claim s
lacked supporting evidence and relied on the affirm ative defense of disclaim er as a basis for no-evidence
sum m ary judgm ent"); Nowak v. DAS Inv. Corp., 110 S.W .3d 677, 680-81 (Tex. App.–Houston [14th Dist.]
2003, no pet.) (explaining that a party with the burden of proof at trial cannot bring a no-evidence
sum m ary-judgm ent m otion).

                                                       8
       By its first issue, Bank of America contends that the trial court erred when it granted

summary judgment in favor of Eisenhauer because Eisenhauer did not state the grounds

upon which his traditional motion was based. Eisenhauer's motion for summary judgment

recited a "Statement of Undisputed Facts," set out general summary judgment standards,

listed his summary judgment evidence which he attached and incorporated into his motion,

and prayed for relief. Eisenhauer now asserts that his motion was sufficient and gave fair

notice of the grounds on which it was based because it: (1) was eight pages long; (2) was

accompanied by 229 pages of summary judgment evidence; (3) laid out Bank of America's

erroneous closure of the Walter CD account and Bank of America's refusal to return the

$27,497.67 to Lorene's estate; and (4) prayed for recovery of $27,497.67, "representing

the amount of funds owed by Bank of America to Mrs. Walter before her death."

Eisenhauer argues that, thus, the ground for summary judgment was recovery of the

$27,497.67 that Bank of America owed Lorene because it admittedly violated the terms of

her certificate of deposit, constituting a breach of contract claim. We are not persuaded

by Eisenhauer's argument.

       Nowhere in his motion did Eisenhauer expressly state the above grounds or reasons

which he now argues are sufficient to entitle him to summary judgment as a matter of law.

See TEX . R. CIV. P. 166a(c); McConnell, 858 S.W.2d at 341; Mercier, 214 S.W.3d at 774.

The undisputed facts Eisenhauer provided were not expressly set out as grounds or

reasons that would entitle Eisenhauer to summary judgment. See McConnell, 858 S.W.2d

at 341. Eisenhauer cannot rely on his recitation of facts, and he may not place his reliance

on the attached summary judgment evidence to provide the grounds for the motion. See

id. Therefore, because Eisenhauer's traditional motion for summary judgment did not


                                              9
expressly present grounds for which summary judgment could have been granted, we

conclude that the trial court erred in granting Eisenhauer's summary judgment on any

basis, including his breach of contract claim. See id.; see also TEX . R. CIV . P. 166a(c);

Mercier, 214 S.W.3d at 774. We sustain Bank of America's first issue.6

B. Bank of America's No-Evidence Motion for Summary Judgment

        In its second issue, Bank of America asserts that the trial court erred when it denied

its no-evidence motion for summary judgment. Bank of America specifically challenges the

trial court's denial on the basis that there was no evidence of the following: (1) a non-

contractual legal duty; and (2) Eisenhauer's individual standing to bring suit.7 See TEX . R.

CIV. P. 166a(i); Meru, 136 S.W.3d at 386; Belalcazar, 99 S.W.3d at 840.

        1. Non-Contractual Legal Duty

        Bank of America asserts that the trial court erred in denying its no-evidence motion

because Eisenhauer provided no evidence of a non-contractual legal duty or a fiduciary

duty owed by Bank of America. Under rule 166a(i), the trial court should have granted

Bank of America's motion unless Eisenhauer produced summary judgment evidence

raising a genuine issue of material fact. See TEX . R. CIV. P. 166a(i); LaCour v. Lankford


        6
         Having sustained Bank of Am erica's first issue, we need not address Bank of Am erica's fourth issue
challenging the trial court's award of attorney's fees on the basis that Eisenhauer did not segregate his
attorney's fees' evidence. See T EX . R. A PP . P. 47.1

        7
           Bank of Am erica also asserts it claim ed that there was no evidence of Bank of Am erica's breach of
any non-contractual legal "duty," proxim ate cause, or dam ages. W e disagree. Bank of Am erica's m otion did
not specifically state that there was no evidence of breach, proxim ate cause, or dam ages for the non-contract
claim s. See Meru v. Huerta, 136 S.W .3d 383, 386 (Tex. App.–Corpus Christi 2004, no pet.); see also T EX .
R. C IV . P. 166a(i); Scripps Tex. Newspapers, L.P. v. Belalcazar, 99 S.W .3d 829, 840 (Tex. App.–Corpus
Christi 2003, pet. denied). The trial court could not have granted Bank of Am erica's m otion as to these
elem ents because Bank of Am erica did not expressly present these issues in its m otion. McConnell v.
Southside I.S.D., 858 S.W .2d 337, 341 (Tex. 1993).

         W e also note that Bank of Am erica does not challenge the trial court's denial of its no-evidence m otion
as to Eisenhauer's state-law violation claim .

                                                       10
Co., 287 S.W.3d 105, 109 (Tex. App.–Corpus Christi 2009, pet. denied) ("Once a no

evidence motion for summary judgment is filed, the non-moving party must present

evidence raising an issue of material fact as to the elements of the claim challenged in the

motion.") (citing Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)).

Eisenhauer, however, filed no response to Bank of America's motion. Eisenhauer did file

a document titled "PLAINTIFF'S OBJECTIONS TO EVIDENCE [FILED] IN SUPPORT OF

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT" and now urges this Court to

consider it as his response. We decline to do so. Moreover, even were we to construe it

as a response, nowhere in that document does Eisenhauer respond to, or even mention,

Bank of America's alleged non-contractual legal duty or fiduciary duty.

       Eisenhauer also argues that, because there are competing motions for summary

judgment, this Court should review the motions and all the summary judgment evidence.

See SAS Inst., 167 S.W.3d at 841; Agan, 940 S.W.2d at 81. However, even assuming that

all summary judgment evidence is properly considered in our analysis of Bank of America's

no-evidence motion, we nevertheless conclude that Eisenhauer has failed to raise a

genuine issue of material fact regarding the duty element of his non-contractual causes of

action. See TEX . R. CIV . P. 166a(i); Jackson, 979 S.W.2d at 70; see also Schlueter v.

Schlueter, 975 S.W.2d 584, 589 (Tex. 1998) ("[R]ecovery of punitive damages requires a

finding of an independent tort with accompanying actual damages") (quoting Twin City Fire

Ins. Co. v. Davis, 904 S.W.2d 663, 665 (Tex. 1995) and citing Amoco Prod. Co. v.

Alexander, 622 S.W.2d 563, 571 (Tex. 1981) (explaining in a breach of contract action that

even if the breach is malicious, intentional, or capricious, that punitive damages are not

recoverable without a tort)).


                                            11
         2. Eisenhauer's Individual Standing to Bring Suit

         Bank of America next asserts by its second issue that the trial court erred in denying

its no-evidence motion as to Eisenhauer, individually, because Eisenhauer produced no

evidence of his individual standing to sue. We agree.

         "It is settled in Texas that the personal representative of the estate of a decedent

is ordinarily the only person entitled to sue for the recovery of property belonging to the

estate."8 Frazier v. Wynn, 472 S.W.2d 750, 752 (Tex. 1971); see TEX . PROB. CODE ANN .

§ 233A (Vernon 2003). In this case, it is undisputed that Eisenhauer was the executor of

the estate and, as Lorene's personal representative, had standing to sue in that capacity

for recovery of any property belonging to Lorene's estate.9 See Frazier, 472 S.W.2d at

752. However, Eisenhauer filed no response to Bank of America's no-evidence motion

challenging his individual standing to sue. And, as we reasoned above, even assuming

that all evidence is properly considered in our analysis of Bank of America's no-evidence

motion, we nevertheless conclude that Eisenhauer has failed to raise a genuine issue of

material fact regarding his individual standing to sue. See TEX . R. CIV. P. 166a(i); Jackson,

979 S.W.2d at 70.



         8
         The term "[p]ersonal representative . . . includes executor, independent executor, adm inistrator,
independent adm inistrator, tem porary adm inistrator, together with their successors." T EX . P R O B . C OD E A N N .
§ 3(aa) (Vernon Supp. 2009).

         9
         There are exceptions to the general rule; however, none apply here. See, e.g., Shepherd v. Ledford,
962 S.W .2d 28, 31 (Tex. 1998) (setting out that an heir at law can m aintain a suit for the recovery of property
belonging to the estate when he alleges and proves there is no adm inistration pending and none is
necessary); Frazier v. W ynn, 472 S.W .2d 750, 752 (Tex. 1971) (sam e); Mayhew v. Dealey, 143 S.W .3d 356,
371 (Tex. App.–Dallas 2004, pet. denied) (providing "that heirs m ay bring suit when the personal
representative cannot, or will not, bring the suit or when the personal representative's interests are
antagonistic to those of the estate") (citing Chandler v. W elborn, 294 S.W .2d 801, 806 (Tex. 1956); Burns v.
Burns, 2 S.W .3d 339, 342 (Tex. App.–San Antonio 1999, no pet.)).

                                                         12
       3. Conclusion

       Based on the above analysis, we conclude the trial court erred when it denied Bank

of America's no-evidence motion for summary judgment as to Eisenhauer's negligence,

gross negligence, and fiduciary duty claims and as to Eisenhauer's standing to sue as an

individual. We sustain Bank of America's second issue.

C.     Bank of America's Traditional Motion for Summary Judgment

       By its third issue, Bank of America contends that Eisenhauer, as independent

executor of Lorene's estate, has no standing to sue. Bank of America argues that its

disbursement of the funds in question was expressly affirmed by Day, Lorene's guardian

at that time; thus, no claim survived Lorene's death. Bank of America pleaded numerous

affirmative defenses to the survival of the claim, including estoppel, ratification, waiver,

release, and accord and satisfaction.      It also pleaded failure to satisfy a condition

precedent as an affirmative defense. In its traditional motion for summary judgment, Bank

of America argued that these named defenses, inter alia, provided bases for granting its

motion. Now, on appeal, Bank of America asserts only estoppel and failure to satisfy a

condition precedent to support its contention that the trial court erred in denying its

traditional motion for summary judgment.

       1. Estoppel

       Bank of America bases its estoppel defense on the document it received from

Ringland, who was, at that time, guardian of Lorene's person and estate. In the document,

Ringland recited that she "desire[d] that Day retain the funds received by her and that the

Bank withdraw its demand on Day to return funds to the Account."



                                            13
       In its traditional motion for summary judgment and in its response to Eisenhauer's

motion, Bank of America presented the following estoppel argument:

               Estoppel arises where, by the fault of one, another is induced to
       change his or her position for the worse. Herschbach v. City of Corpus
       Christi, 883 S.W.2d 720, 736 (Tex. App.–Corpus Christi 1994, writ denied).
       The elements of an estoppel defense are (1) a false representation or
       concealment of material facts, (2) made with knowledge, actual or
       constructive, of those facts, (3) with the intention that it should be acted on,
       (4) to a party without knowledge or means of obtaining knowledge of the
       facts, (5) who detrimentally relies on the representations. Schroeder v. Tex.
       Iron Works, Inc., 813 S.W.2d 483, 489 (Tex. 1991)[, overruled on other
       grounds by In re United Servs. Auto. Ass’n, 53 Tex. Sup. Ct. J. 485, 2010
       Tex. LEXIS 282 (Tex. Mar. 26, 2010)].

              As stated above, through the Guardian, the Decedent expressly
       instructed Bank of America to cease and desist from any attempts to recover
       the subject funds from Day and expressly stated the Decedent's desire that
       Day retain the subject funds. . . . Bank of America relied upon the
       instructions of the Guardian to its detriment. The Decedent is thus estopped
       from bringing suit against Bank of America for any and all acts relating to the
       early distribution.

       Now, on appeal, Bank of America argues that Lorene—through Eisenhauer—is

estopped from bringing suit against Bank of America for any and all acts related to the

early distribution. Specifically, Bank of America claims to have reasonably relied on

Ringland's instructions and asserts the following argument in support of its contention that

its reliance is conclusively established:

               The Indemnity Agreement unequivocally provides that Ringland, as
       court[-]appointed fiduciary, desires that Day—an individual whom both Mr.
       and Mrs. Walter affirmatively selected as their payable on death
       beneficiary—retain the very funds they contracted to convey to her and that
       Bank of America withdraw its demand on Day to return those funds. Bank
       of America relied, to its detriment by promptly returning a $5,000.00 check.
       Eisenhauer came forward with no summary judgment evidence to refute
       Bank of America's reliance evidence or the reasonableness of relying on a
       notarized instrument executed by the court appointed guardian of Mrs.
       Walter. Thus, the point should be concluded in Bank of America's favor. At
       a minimum, a fact issue was raised as to the reasonableness of Bank of
       America's reliance and summary judgment for Eisenhauer is improper.

                                             14
       Summary judgment is proper if a defendant, Bank of America in this case,

affirmatively establishes each element of its affirmative defense. See Ortega, 97 S.W.3d

at 772. Bank of America's argument relies on cases where the estoppel defense arises

"where by fault of one, another has been induced to change his position for the worse."

Herschbach, 883 S.W.2d at 736. In its summary judgment motion and its response, Bank

of America set out all of the elements of an estoppel defense that it must establish. See

Schroeder, 813 S.W.2d at 489. However, in the summary judgment proceeding below and

now on appeal, Bank of America argues only that it conclusively established detrimental

reliance, the fifth element of estoppel. See id. Bank of America does not assert that it

affirmatively established each of the remaining elements of the affirmative defense of

estoppel; that a false representation or concealment of material facts was made with

knowledge, actual or constructive, of those facts, with the intention that it should be acted

on, to a party without knowledge or means of obtaining knowledge of the facts. See id.;

Ortega, 97 S.W.3d at 772. Therefore, even were we to conclude that Bank of America

established the reliance element, the trial court did not err in denying Bank of America's

traditional motion for summary judgment based on the asserted estoppel defense because

Bank of America did not address the remaining elements. See Ortega, 97 S.W.3d at 772.

       2. Condition Precedent

       Bank of America also contends that the following provision, found in its September

1, 2003 Deposit Agreement and Disclosures (Deposit Agreement), created a condition

precedent that required Eisenhauer to give notice of any alleged problem or unauthorized

transaction within sixty days of Bank of America sending a statement or otherwise making

it available:


                                             15
       Examining Statements and Reporting Problems

              You agree to promptly and carefully review your statement and any
       accompanying items.          You must report problems or unauthorized
       transactions to us immediately, by calling the number for Customer Service
       on your statement. . . . You agree that 60 days after we send a statement
       (or otherwise make it available) is the maximum reasonable amount of time
       for you to review your statement and report any problem or unauthorized
       transaction related to a matter shown on the statement. In addition if you do
       not notify us in writing of suspected problems or unauthorized transactions
       within 60 days after we send your statement, or otherwise make it available,
       you agree that you cannot make a claim against us relating to the unreported
       problems or unauthorized transactions.

       A condition precedent is defined as a condition either to the formation of the contract

or to an obligation or a duty to perform arising under an existing agreement. Hohenberg

Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 1976); Ford v. City State

Bank of Palacios, 44 S.W.3d 121, 139 (Tex. App.–Corpus Christi 2001, no pet.); see

Basse Truck Line, Inc. v. First State Bank, 949 S.W.2d 17, 21-22 (Tex. App.–San Antonio

1997, writ denied) (explaining that a condition precedent limits a claim because it requires

an aggrieved party to first perform a specified act before commencing an action).

       In its argument on appeal, Bank of America asserts that failure to satisfy a condition

precedent is an affirmative defense and that the following establishes that defense: (1) the

plain terms of the Deposit Agreement provide that account holders must promptly notify

Bank of America of any errors, forgeries, unauthorized signatures, or unauthorized

withdrawals; (2) it is undisputed that no such timely, written notice was provided; (3) the

Deposit Agreement states that quarterly statements are provided for savings accounts; and




                                             16
(4) a federal tax form 1099 was provided at the end of 2004.10 Bank of America asserts

that Eisenhauer is precluded from asserting liability against it for its early distribution to

Day. Bank of America urges that either its affirmative defense of failure to satisfy a

condition precedent is established as a matter of law or, at the very least, there is a fact

issue precluding summary judgment in favor of Eisenhauer.

        As a threshold matter, we address Bank of America's reference to Eisenhauer's

alleged failure to satisfy a condition precedent as an affirmative defense. Bank of America

urged in its motion for traditional summary judgment and now on appeal that the evidence

established this affirmative defense as a matter of law; thus, the trial court erred in denying

its traditional motion for summary judgment. See TEX . R. CIV. P. 166a(c); Ortega, 97

S.W.3d at 772; see also TEX . R. CIV. P. 54 (providing for the defense of failure to satisfy

a condition precedent), 94 (identifying affirmative defenses). However, failure to satisfy

conditions precedent is not an "affirmative defense" on which Bank of America bore the

burden of proof. See Lidawi v. Progressive County Mut. Ins. Co., 112 S.W.3d 725, 729 n.1

(Tex. App.–Houston [14th Dist.] 2003, no pet.).




        10
           Interestingly, Bank of Am erica brings to our attention that there is conflicting evidence in the record
creating fact issues regarding whether Eisenhauer received a copy of the Deposit Agreem ent. Eisenhauer
states, in his sworn statem ent, that he "never had and never saw a copy of the [Deposit Agreem ent]," while
the trial court's October 22, 2004 order appointing Ringland tem porary guardian of Lorene provides that
"[c]om plete records of such accounts have been m aintained and are still being m aintained by Dwight
Eisenhauer." Furtherm ore, although Bank of Am erica's m otion for sum m ary judgm ent indicates that the
Deposit Agreem ent was incorporated into the W alter CD, copies of the W alter CD that are in the appellate
record are illegible.

        Moreover, Bank of Am erica argues only that the Deposit Agreem ent states that quarterly statem ents
are provided for savings accounts. It provides no record citation to a quarterly statem ent provided to
Eisenhauer, and we find no such docum ent in the record. And the 1099 tax form referenced by Bank of
Am erica, apparently in support of its argum ent that a statem ent was provided, identifies only 2004 interest
incom e from the W alter CD.

                                                       17
       Texas Rule of Civil Procedure 54 provides that after a defendant has specifically

denied the performance of the condition precedent, the plaintiff is required to prove the

performance of only those conditions that the defendant has specifically denied. TEX . R.

CIV. P. 54. The effect of rule 54 is to shift the burden of pleading to the defendant, not the

burden of proof; the burden of both pleading and proof of performance of all conditions

precedent to recovery remains with the plaintiff. Trevino v. Allstate Ins. Co., 651 S.W.2d

8, 11 (Tex. App.–Dallas 1983, writ ref'd n.r.e.). As the Houston Court and the Dallas Court

have explained:

       A condition precedent to the right to maintain an action must be performed
       and "the fact of performance or excuse of nonperformance must be alleged
       and proved in order to warrant a recovery." Southwestern Associated
       Telephone Co. v. City of Dalhart, 254 S.W.2d 819, 825 (Tex. Civ.
       App.–Amarillo 1952, writ ref'd n.r.e.). When a plaintiff avers generally that
       all conditions precedent have been performed, he is required to prove the
       performance of only those conditions precedent specifically denied by the
       defendant. The effect of this rule is to shift the burden of pleading to the
       defendant, but not the burden of proof, when the plaintiff has made a general
       allegation that all conditions precedent have been performed.

Lidawi, 112 S.W.3d at 729 n.1 (quoting Trevino, 651 S.W.2d at 11). Therefore, when a

defendant's liability on a contract depends on the performance or happening of a condition

precedent, the plaintiff, not the defendant, must allege and prove that the condition has

happened or has been performed or that there was a waiver of the condition precedent.

See Parkview Gen. Hosp., Inc. v. Eppes, 447 S.W.2d 487, 490 (Tex. Civ. App.–Corpus

Christi 1969, writ ref'd n.r.e.); see also Hurst v. Rush, 514 S.W.2d 472, 475 (Tex. Civ.

App.–Beaumont 1974, no writ). In the absence of the occurrence or performance of such

a condition precedent, there can be no breach of contract. Hurst, 514 S.W.2d at 475;

Eppes, 447 S.W.2d at 490-91.


                                             18
        Thus, we are not persuaded by Bank of America's affirmative-defense argument.

Even assuming that this notification provision requiring written notice of a problem reflected

in a written statement received by a customer is a condition precedent under the facts of

this case, Bank of America's traditional motion for summary judgment arguing that it

established the affirmative defense of failure of a condition precedent was not

appropriate.11

        3. Conclusion

        Based on the above analysis, we conclude that the trial court did not err in denying

Bank of America's traditional motion for summary judgment as to the estoppel affirmative

defense and the defense of failure to meet a condition precedent. We overrule Bank of

America's third issue.

                                               IV. DISPOSITION

        We reverse the trial court's order denying Bank of America's no-evidence motion for

summary judgment on Eisenhauer's negligence, gross negligence, and breach of fiduciary



        11
            Bank of Am erica contends by a sub-issue that the trial court abused its discretion when it struck
Bank of Am erica's sum m ary judgm ent exhibits B and C, both titled "Deposit Agreem ent and Disclosures"
(Deposit Agreem ent) and dated October 1, 2002 and Septem ber 1, 2003, respectively. Bank of Am erica
describes the Deposit Agreem ent as the underlying written contract upon which Eisenhauer's claim s depend.
Nonetheless, even were we to conclude that the trial court abused its discretion when it struck the exhibits,
see Creative Thinking Sources, Inc. v. Creative Thinking, Inc., 74 S.W .3d 504, 514 (Tex. App.–Corpus Christi
2002, no pet.) (providing that the adm ission or exclusion of sum m ary judgm ent evidence is reviewed for abuse
of discretion), the error was harm less because the sam e Deposit Agreem ents were attached as exhibits B
and C to Bank of Am erica's response to Eisenhauer's m otion for sum m ary judgm ent. See T EX . R. A PP . P.
44.1(a)(1). Further, as Bank of Am erica acknowledges, Eisenhauer did not object to these exhibits, and there
is no order striking them . Thus, the Deposit Agreem ent was part of the sum m ary judgm ent evidentiary record
in the trial court and is now part of the appellate record. W e overrule this sub-issue.

         Bank of Am erica also notes that the Deposit Agreem ent provides that, should liability be found, Bank
of Am erica's m axim um liability is the am ount of the "unauthorized withdrawal" and that it is "not liable to [the
depositor] for special or consequential losses or dam ages of any kind, including . . . attorneys' fees incurred
by you." However, this argum ent was not m ade to the trial court and, thus, is not before us in this appeal.
See McConnell, 858 S.W .2d at 341.

                                                        19
duty claims and render judgment in favor of Bank of America on said claims. We reverse

the trial court's order denying Bank of America's no-evidence motion for summary

judgment on claims filed by Eisenhauer individually and render judgment in favor of Bank

of American on said claims. In all other respects, we affirm the trial court's order denying

Bank of America's traditional and no-evidence motion for summary judgment.

         Furthermore, we reverse the trial court's order granting summary judgment in favor

of Eisenhauer, as independent executor of the estate of Lorene Belcher Walters, and its

judgment awarding damages for breach of contract and remand for proceedings consistent

with this opinion. Because we reverse and remand the underlying claim for breach of

contract, we also reverse and remand the trial court's award of attorney's fees and court

costs.


                                                        NELDA V. RODRIGUEZ
                                                        Justice

Delivered and filed the
15th day of July, 2010.




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