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Frost National Bank v. Heafner

12/2/1999

he did not think it was necessary for Heafner to know all the adjustment procedures a bank must go through when a check has been forged.


Veserra said the two checks were initially sent to Bank United to verify they had been deposited into an account actually owned by Heafner. She said when she determined the money went into Heafner's Bank United account, her investigation ended because she concluded Heafner benefitted from the deposit.


We do not find that the facts upon which Heafner relies, Frost's silence regarding its internal investigation and its adjustments with Bank United and the Federal Reserve coupled with its refusal to pay Heafner $10,000, have probative force sufficient to constitute a basis of legal inference of fraud. These facts are equally consistent with the theory that Frost's actions were motivated simply by its desire to shift any loss to Bank United and that Frost believed Heafner did not lose any money because both forged checks were deposited into her Bank United account. Because the inferences drawn from the evidence equally support a different theory, the evidence is legally insufficient to support the finding of intent in Heafner's theory of fraud.


We sustain issue three.


Punitive Damages


In issue five, Frost asserts the jury's award of $400,000 in punitive damages should be either reduced or deleted because (1) punitive damages are improper without actual damages, independent tort damages, or malice; and (2) the punitive damages are excessive under common law standards and the Due Process clause of the United States and Texas Constitutions.


A breach of contract alone will not support punitive damages; an independent tort must be established. Twin City Fire Ins. Co. v. Davis, 904 S.W.2d 663, 665 (Tex. 1995). Because we sustain points of error two and three, Heafner is not entitled to a punitive damage award.


We sustain issue five.


Stacking Damages


In issue four, Frost asserts that awarding Heafner both attorney's fees and punitive damages improperly stacked contract damages on top of tort damages.


Heafner was entitled to an award of attorney's fees under her breach of contract claim. See Tex. Civ. Prac. & Rem. Code §38.001. Because we sustain issue five, we need not address whether the award of both attorney's fees and punitive damages was improper.


We overrule issue four.


We affirm the trial court's judgment in part as to Heafner's breach of contract claim and the award of damages for loss of benefit of the bargain and attorney's fees. We reverse the trial court's judgment in part as to Heafner's causes of action for fraud and violations of the DTPA and her entitlement to consequential damages and punitive damages, and we render judgment that Heafner take nothing against Frost on her causes of action for fraud and violations of the DTPA. We remand the cause to the trial court for the sole purpose of calculating prejudgment interest on the award of damages for loss of benefit of the bargain.


Michol O'Connor Justice


Publish. Tex. R. App. P. 47.






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