NO CV IN THE COURT OF APPEALS FIFTH JUDICIAL DISTRICT OF TEXAS DALLAS, TEXAS

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1 ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 11 October 11 P12:36 Lisa Matz CLERK NO CV IN THE COURT OF APPEALS FIFTH JUDICIAL DISTRICT OF TEXAS DALLAS, TEXAS ROSSER B. MELTON, JR., TRUSTEE OF NEW TRUST FOR FRANCES C. MELTON v. LEGACYTEXAS BANK, Appellant, Appellee. Appeal from the 296 th Judicial District Court Collin County, Texas Trial Court Case No Hon. John Roach, Jr., presiding BRIEF OF APPELLEE LEGACYTEXAS BANK Jennifer L. Owen State Bar No Stacy R. Welch State Bar No HIGIER ALLEN & LAUTIN, PC 5057 Keller Springs Road, Suite 600 Addison, TX (972) (972) (Fax) ATTORNEYS FOR APPELLEE

2 IDENTITY OF PARTIES AND COUNSEL The parties to the trial court s judgment from which Appellant appeals are Rosser B. Melton, Jr., Trustee of New Trust for Frances C. Melton ( Melton ), Plaintiff in Cause No , styled Rosser B. Melton, Jr., Trustee of New Trust for Frances C. Melton v. LegacyTexas Bank, in the 296 th Judicial District Court, Collin County, Texas (the District Court Action ). Melton appeared in the District Court Action, and presently appears as Appellant, pro se. His address is as follows: 1611 Kendolph, Denton, Texas LegacyTexas Bank was the Defendant in the District Court Action and is the Appellee in the present proceeding. It is represented by Jennifer L. Owen and Stacy R. Welch, Higier Allen & Lautin, P.C., 5057 Keller Springs Road, Suite 600, Addison, Texas Brief of Appellee LegacyTexas Bank - Page i W:\4104\2486\Appellee Brief.doc

3 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL... i TABLE OF CONTENTS... ii INDEX OF AUTHORITIES... iv GLOSSARY OF TERMS... v STATEMENT OF THE CASE... v STATEMENT REGARDING ORAL ARGUMENT... vi ISSUES PRESENTED... vi Reply Issue No. 1: It is not this Court s role to create a new cause of action creating a duty upon banks to cash checks for non-customer payees, as Melton requests... vi Reply Issue No. 2: The District Court correctly determined that there was no genuine issue of material fact on Melton s claims against Legacy and that Legacy was entitled to summary judgment as a matter of law... vi Reply Issue No. 3: The District Court correctly determined that neither Rosser Melton nor the New Trust for Frances C. Melton was a customer of Legacy so as to give rise to a claim for wrongful dishonor or other derivative claims... vi Reply Issue No. 4: The District Court correctly determined that the Texas At Par statute does not provide Melton with a basis for recovery against Legacy... vi STATEMENT OF FACTS... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT AND AUTHORITIES... 3 A. No authority exists supporting a civil cause of action by a non-customer against a bank for refusal to cash checks. (Reply Issues 1 and 2)... 3 B. Neither Melton nor the Trust was a Legacy customer, therefore, a wrongful dishonor cause of action does not apply. (Reply Issues 2 and 3)... 4 Brief of Appellee LegacyTexas Bank - Page ii W:\4104\2486\Appellee Brief.doc

4 C. The Texas At Par Statute does not create an exception to the Code s requirement that a wrongful dishonor claimant be a customer of the defendant bank. (Reply Issues 2 and 4)... 5 CONCLUSION AND PRAYER... 6 Brief of Appellee LegacyTexas Bank - Page iii W:\4104\2486\Appellee Brief.doc

5 INDEX OF AUTHORITIES CASES: Bernard Johnson, Inc. v. Continental Constructors, Inc., 630 S.W.2d 365 (Tex. App. Austin 1982, writ ref'd n.r.e.)... 3 Emscor Mfg. v. Alliance Ins. Group, 879 S.W.2d 894 (Tex. App. Houston [14th Dist.] 1994, writ denied)... 3 Ernst & Young, LLP v. Pacific Mutual Life Ins. Co., 51 S.W.3d 573 (Tex. 2001)... 5 House v. Kountze, 43 S.W. 561 (Tex. Civ. App. 1897, writ ref d)... 3, 4, 7 Simmons Airlines v. Lagrotte, 50 S.W.3d 748 (Tex. App. Dallas 2001, pet. denied)... 3 Texas Dept. of Transp. v. Needham, 82 S.W.3d 314 (Tex. 2002)... 5 Wells Fargo Bank of Texas, NA v. James, 321 F.3d 488, 489 (5 th Cir. 2003)... 6 STATUTES: TEX. BUS. & COMM. CODE ANN (Vernon 2002)... 4 TEX. BUS. & COM. CODE ANN (Vernon Supp. 2010)... 4, 5 TEX. BUS. & COM. CODE ANN (Vernon Supp. 2010)... 6 TEX. BUS. & COM. CODE ANN (Vernon Supp. 2010)... 4, 5, 6 CONSTITUTIONS: TEX. CONST. art. XVI, 16(c)... 6 Brief of Appellee LegacyTexas Bank - Page iv W:\4104\2486\Appellee Brief.doc

6 GLOSSARY OF TERMS Citation in this Brief will be as noted below to the record on file in this appeal, said record being incorporated herein by reference: Clerk s Record Appellant s Appendix C.R. Appellant s Apdx. Additionally, the various parties are referenced herein as follows: Appellant Rosser B. Melton, Jr., Trustee of New Trust for Frances C. Melton Appellee LegacyTexas Bank Melton Legacy STATEMENT OF THE CASE Melton s Statement of the Case contains statements which are unsupported by the record on appeal and for which there is no evidentiary basis. Therefore, Legacy offers this statement of facts. This case is essentially a wrongful dishonor action arising out of Melton s attempt to cash checks made payable to New Trust for Frances C. Melton at a Legacy branch. C.R Legacy allegedly declined to cash the checks at issue, after which Melton proceeded to file suit against Legacy. Id. Legacy moved for summary judgment against Melton on all of his asserted claims, in large part because Melton was not a customer of Legacy pursuant to the applicable statute. The District Court granted Legacy s motion, and entered final judgment against Melton on July 11, C.R Brief of Appellee LegacyTexas Bank - Page v W:\4104\2486\Appellee Brief.doc

7 STATEMENT REGARDING ORAL ARGUMENT Legacy does not request oral argument as it believes this matter may be determined on the briefs. The issues in this matter have already been considered and decided by the District Court in a manner consistent with Legacy s position in this cause and in accordance with relevant law. Should this Court determine the issues in this case warrant oral argument and grant Melton s request for oral argument, counsel for Legacy requests the opportunity to present argument as well. ISSUES PRESENTED Reply Issue No. 1: Reply Issue No. 2: Reply Issue No. 3: Reply Issue No. 4: It is not this Court s role to create a new cause of action creating a duty upon banks to cash checks for non-customer payees, as Melton requests. The District Court correctly determined that there was no genuine issue of material fact and that Legacy was entitled to summary judgment on Melton s claims as a matter of law. The District Court correctly determined that neither Rosser Melton nor the New Trust for Frances C. Melton was a customer of Legacy so as to give rise to a claim for wrongful dishonor or other derivative claims. The District Court correctly determined that the Texas At Par statute does not provide Melton with a basis for recovery against Legacy. Brief of Appellee LegacyTexas Bank - Page vi W:\4104\2486\Appellee Brief.doc

8 STATEMENT OF FACTS Melton s Statement of Facts omits facts pertinent to the issues presented in this appeal. Therefore, Legacy offers this statement of facts. In the District Court Action, Plaintiff alleged that in September 2008, he presented three checks to Legacy which were made payable to the New Trust for Frances C. Melton (the Trust ), asking that they be cashed. C.R He further alleged he was informed by representatives of Legacy that it would not cash the checks. Id. Notably, neither Rosser Melton, Jr. nor the New Trust for Frances C. Melton held an account at Legacy. Appellant s Apdx. at Affidavit of Amber Chalmers at 2. Melton filed his Second Amended Original Petition against Legacy on the theory of wrongful dishonor. C.R While he also appeared to assert claims for civil conspiracy and malice, Melton does not address these points on appeal. Id.; see generally Appellant s Brief. Melton moved for summary judgment against Legacy, and Legacy filed a cross-motion for summary judgment against Melton on the basis that the summary judgment evidence and Melton s pleadings established he was not entitled to recover against Legacy as a matter of law. C.R. 5; Appellant s Apdx. at Defendant s Response to Plaintiff s First Motion for Summary Judgment and Cross-Motion for Summary Judgment. Melton s grounds for opposing Legacy s cross-motion for summary judgment were the same as those arguments he asserts in this appeal; namely, that Legacy was obligated to cash the checks at issue even though he was not a Legacy customer. See generally Appellant s Brief. The District Court rejected Melton s arguments, however, Brief of Appellee LegacyTexas Bank - Page 1 W:\4104\2486\Appellee Brief.doc

9 when it awarded Legacy summary judgment and subsequently entered Final Judgment against Melton in the Bank s favor. C.R SUMMARY OF THE ARGUMENT On July 11, 2011, the District Court signed its Final Judgment against Melton on his claims against Legacy in connection with Legacy s alleged failure to cash the checks at issue. C.R The District Court based its judgment on its finding that Melton had no right of action against the Bank for wrongful dishonor or any of Melton s other asserted theories. See id.; see also Appellant s Apdx. at Defendant s Response to Plaintiff s First Motion for Summary Judgment and Cross-Motion for Summary Judgment. Simply put, Legacy had no legal obligation to cash the checks at issue because neither Melton nor the Trust was a Legacy customer as such term is defined under applicable law. Melton continues to argue that Legacy was obligated to give him cash in exchange for the checks. See generally Appellant s Brief. In doing so, however, he is unable to cite any particular authority which creates any definitive obligation upon a bank to cash checks for non-customers. Id. Instead, Melton cites inapplicable provisions of the Texas Business and Commerce Code (i.e., the at par statute) and relies on nebulous arguments which include his theories that Legacy is not a bank and that he is the victim of banking discrimination. Id. The District Court properly granted Legacy final summary judgment against Melton. Melton not only failed to establish each element of his claim for wrongful dishonor, conspiracy, and malicious dishonor, but the pleadings and summary judgment evidence conclusively disproved the elements of his asserted claims. Brief of Appellee LegacyTexas Bank - Page 2 W:\4104\2486\Appellee Brief.doc

10 Appellant s Apdx. at Defendant s Response to Plaintiff s First Motion for Summary Judgment and Cross-Motion for Summary Judgment. Melton has not demonstrated on this appeal any compelling reason why this Court should reverse the determinations of the District Court. ARGUMENT AND AUTHORITIES A. No authority exists supporting a civil cause of action by a non-customer against a bank for refusal to cash checks. (Reply Issues 1 and 2) Melton devotes much of his Brief to the argument that the District Court s judgment violates his right under the Texas Constitution to sue for any injury done to him. Appellant s Brief at pp Therefore, Melton appears to be advocating a new cause of action available to payees to sue banks for a refusal to cash checks, regardless of whether the payee is a customer of the bank. It is not for an intermediate appellate court such as this one to create a new cause of action, however. See, e.g., Simmons Airlines v. Lagrotte, 50 S.W.3d 748 (Tex. App. Dallas 2001, pet. denied); Emscor Mfg. v. Alliance Ins. Group, 879 S.W.2d 894, 910 (Tex. App. Houston [14th Dist.] 1994, writ denied); Bernard Johnson, Inc. v. Continental Constructors, Inc., 630 S.W.2d 365, 375 (Tex. App. Austin 1982, writ ref'd n.r.e.). In his Brief, Melton cites House v. Kountze, 43 S.W. 561 (Tex. Civ. App. 1897, writ ref d), focusing on the dissenting view that perhaps a check does constitute an assignment of the drawer s funds such that a payee could sue a bank for an unaccepted check. Appellant s Brief at p. 3. Significantly, though, the House Court held that a bank is under no legal obligation to the holder of an unaccepted check, and that an unaccepted Brief of Appellee LegacyTexas Bank - Page 3 W:\4104\2486\Appellee Brief.doc

11 check will not support an action by the holder against the drawee bank. House, 43 S.W. at Melton has not cited any authority to the contrary or otherwise in support of his assertion that he has an actionable claim against Legacy. Moreover, the Texas Legislature has since made it clear that a check does not operate as an assignment of funds to the payee. TEX. BUS. & COMM. CODE ANN (Vernon 2002). Therefore, there is no legal basis for Melton s claim that Legacy was obligated to cash the checks at issue. B. Neither Melton nor the Trust was a Legacy customer, therefore, a wrongful dishonor cause of action does not apply. (Reply Issue 2) In the District Court Action, Melton asserted that Legacy wrongfully dishonored, conspired to wrongfully dishonor, and maliciously wrongfully dishonored, the checks at issue. C.R Neither he nor the Trust falls within the statute which creates a cause of action for wrongful dishonor, however. Texas Business and Commerce Code (the Code ) Section establishes that a payor bank is liable to its customer for damages proximately caused by the wrongful dishonor of a properly payable item. TEX. BUS. & COM. CODE ANN (a), (b) (Vernon Supp. 2010). A claim against a bank for wrongful dishonor is available only to the bank s customer (b). The term customer is defined in the Code as follows: A person having an account with a bank or for whom a bank has agreed to collect items, including a bank that maintains an account at another bank. TEX. BUS. & COM. CODE ANN (a)(5) (Vernon Supp. 2010). Thus, a person who does not have an account with a bank, or for whom the bank has not agreed to collect items, cannot recover against that bank for wrongful dishonor. See id. Brief of Appellee LegacyTexas Bank - Page 4 W:\4104\2486\Appellee Brief.doc

12 In his Brief, Melton acknowledges that he did not have an account at Legacy at any relevant time. Appellant s Brief at p. 3. The summary judgment evidence also conclusively established that neither Melton nor the Trust held an account at Legacy. Appellant s Apdx. at Affidavit of Amber Chalmers at 2. The summary judgment evidence further established that Legacy had not agreed to collect items for or on behalf of Melton or the Trust. Id. Thus, Melton and the Trust were not customers of Legacy pursuant to the Code. See 4.104(a)(5). As a result, neither has any claim against Legacy for alleged wrongful dishonor in connection with the checks at issue. See 4.402(b). The District Court s award of summary judgment in Legacy s favor on this basis was proper. Additionally, because Legacy was entitled to summary judgment on Melton s underlying tort theory as a matter of law, the District Court s award of summary judgment in Legacy s favor on Melton s conspiracy and malicious dishonor claims was proper as well. See Ernst & Young, LLP v. Pacific Mutual Life Ins. Co., 51 S.W.3d 573, 583 (Tex. 2001). C. The Texas At Par Statute does not create an exception to the Code s requirement that a wrongful dishonor claimant be a customer of the defendant bank. (Reply Issues 2 and 4) Melton argues that the Texas at par statute provides an alternate definition of customer which this Court should use in determining whether he has an actionable wrongful dishonor claim against Legacy. Appellant s Brief at pp It would be improper for this Court to utilize any definition of customer other than that expressly defined in the Code, however. See, e.g., Texas Dept. of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002) (court must use definition provided in statute). Brief of Appellee LegacyTexas Bank - Page 5 W:\4104\2486\Appellee Brief.doc

13 Melton mischaracterizes the at par statute as requiring that a bank such as Legacy cash any check presented to it by any holder, whether a customer of the bank or not. Appellant s Brief at pp More accurately, though, such statute only prohibits banks from charging a fee for cashing a check drawn against one of its accounts. TEX. BUS. & COM. CODE ANN (Vernon Supp. 2010); Wells Fargo Bank of Texas, NA v. James, 321 F.3d 488, 489 (5 th Cir. 2003). It does not create a private cause of action under which Melton may assert a claim against Legacy. See 4.112, compare, Further, in Wells Fargo Bank of Texas, NA v. James, the Fifth Circuit held that the Code s at par provision irreconcilably conflicted with, and was preempted by, federal law. Wells Fargo, 321 F.3d at 495. The at par provision upon which Melton now relies was held to be void and unenforceable as a result. Id. at 490, 495. Though the Wells Fargo opinion was written in the context of a federal banking analysis, Texas-chartered state banks have the same rights and privileges granted to national banks. TEX. CONST. art. XVI, 16(c). Therefore, under the Wells Fargo holding, the Code s at par provision cannot be enforced against a state-chartered bank such as Legacy. See id.; see also Wells Fargo, 321 F.3d at 495. Even if the at par provision can be interpreted in the manner Melton argues, such provision is unenforceable and not determinative of this of this matter. See id. CONCLUSION AND PRAYER The district court properly entered final summary judgment against Melton. The statute which creates the claim Melton asserts contains plain and express language which excludes him from its protections by his own admissions. The only other authority Brief of Appellee LegacyTexas Bank - Page 6 W:\4104\2486\Appellee Brief.doc

14 Melton cites in his Brief as support for his claims is either inapplicable or misinterpreted by Melton. Again, Melton cites House, claiming that this 1897 holding should trump the Code. Appellant s Brief at p. 6. As noted above, however, House does not support Melton s position in this case. In fact, it directly contradicts Melton s argument by holding that an unaccepted check will not support an action by the holder against the drawee bank. House, 43 S.W. at The very reason Melton filed suit against Legacy was that it did not accept the checks at issue. Because Melton and the Trust were not customers of Legacy, it was not obligated to do so and is not liable to Melton. WHEREFORE, PREMISES CONSIDERED, Appellee LegacyTexas Bank respectfully requests that the Court affirm the orders and judgment of the District Court appealed by Appellant Rosser B. Melton, Jr., Trustee of New Trust for Frances C. Melton, and requests such further and additional relief as the Court deems appropriate. Respectfully submitted, HIGIER ALLEN & LAUTIN, P.C. By: /s/ Jennifer L. Owen Jennifer L. Owen State Bar No Stacy R. Welch State Bar No Keller Springs Road, Suite 600 Addison, Texas Telephone: (972) Telecopy: (972) ATTORNEYS FOR APPELLEE LEGACYTEXAS BANK Brief of Appellee LegacyTexas Bank - Page 7 W:\4104\2486\Appellee Brief.doc

15 CERTIFICATE OF SERVICE The undersigned certifies that on the 11 th day of October, 2011, a true and correct copy of the foregoing document was served via first-class U.S. certified mail, return receipt requested and via electronic mail and/or electronic service, on Appellant Rosser B. Melton, Jr., Trustee of New Trust for Frances C. Melton as follows: Rosser B. Melton, Jr Kendolph Drive Denton, Texas Ross8102@grandecom.net /s/jennifer L. Owen Jennifer L. Owen Brief of Appellee LegacyTexas Bank - Page 8 W:\4104\2486\Appellee Brief.doc

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