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Frost National Bank v. Heafner

12/2/1999

000 deposit into her Bank United account enabled Lavely to steal several thousand dollars from her by writing unauthorized checks for his benefit on the Bank United account or by Heafner's paying what she thought to be her business expenses that later proved to be expenses incurred for Lavely's benefit.


Losses resulting from a deposit of money into another bank account that would not have been possible if the payee bank had not paid the forged checks are reasonably within the contemplation of payee banks.


Consequential damages


Frost argues there is no evidence to support the jury's award of consequential damages. The jury was asked what amount would compensate Heafner for loss of the benefit of the bargain, and awarded her $10,000. Frost does not assert Heafner was not entitled to loss of benefit of the bargain.


The jury was also asked to determine "the reasonable and necessary expenses actually incurred by [Heafner] as a result of the conduct in question . . ." and awarded her $3,500. The account deposit agreement expressly provides that Frost was not liable for consequential damages; therefore, Heafner was not entitled to an award of $3,500 in consequential damages.


We sustain issue one as to the award of $3,500 in consequential damages, and we overrule issue one in all other respects.


Recovery under the DTPA


In issue two, Frost asserts the jury's finding that it engaged in false, misleading, or deceptive acts or practices that were the producing cause of Heafner's injuries was improper because Heafner's DTPA claim is nothing more than a mere breach of contract claim. Frost does not assert that the evidence is legally or factually insufficient to support a finding that it violated the DTPA. Frost relies on Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 14 (Tex. 1996), for the proposition that Heafner may not repackage her breach of contract claim into a violation of the DTPA claim. It is a violation of DTPA section 17.46(b)(12) for a party to represent that an agreement confers or involves rights, remedies, or obligations it does not have or involve. Tex. Bus. & Com. Code §17.46(b)(12); see also Adler Paper Stock, Inc. v. Houston Refuse Disposal, Inc., 930 S.W.2d 761, 764 (Tex. App.-Houston [1st Dist.] 1996, writ denied). The underlying purpose of the DTPA is to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty. Tex. Bus. & Com. Code §17.44; see also Adler, 930 S.W.2d at 764.


Heafner contends she is not precluded from bringing a DTPA claim because Frost did more than merely breach the deposit account agreement. Under her breach of contract claim, Heafner alleged Frost breached the deposit account agreement when it paid the two forged checks and by not following its error-resolution procedures. Under her DTPA claim, Heafner alleged Frost misrepresented the safety and security of deposited funds, safeguards to prevent unauthorized withdrawals, and the attributes of the services it offered. These assertions amount to nothing more than a complaint that Frost did not comply with the terms of the deposit account agreement and, if true, Frost's actions contrary to these representations result only in a breach of contract claim.


Heafner also alleged that, after Frost paid the two forged checks, Frost claimed it had the right not to return her money because, according to Frost, she benefitted from the funds when the forged checks were deposited into her Bank United account. She also contended Frost misrepresented her rights to share in the results of Frost's investigation into the forgeries. These assertions amount to nothi

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