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Majeski v. Frost Bank

Court of Appeals of Texas, Fourth District, San Antonio

December 27, 2019

Allan W. MAJESKI, Appellant
v.
FROST BANK, Appellee

          From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2018CI00427 Honorable Karen H. Pozza, Judge Presiding

          Sitting: Patricia O. Alvarez, Justice Irene Rios, Justice Beth Watkins, Justice.

          MEMORANDUM OPINION

          Beth Watkins, Justice.

         Appellee Frost Bank sued appellant Allan W. Majeski for breach of contract, alleging he created an overdraft balance in his checking account that he failed to repay. The trial court granted summary judgment in Frost's favor, and Majeski appealed. We affirm the trial court's judgment.

         Background

         Majeski opened a checking account at Frost on September 8, 2016. On October 14, 2016, he signed a revised deposit account agreement under which he agreed:

• to be "jointly and severally liable to [Frost] for debit balances in the Account, including without limitation overdrafts and Account charges, and jointly and severally promise[d] to pay, upon demand, any and all debit balances, all fees and charges, and [Frost's] reasonable attorneys' fees and costs. . ."; and
• "immediately upon notice from [Frost], to deposit funds sufficient to cover any overdraft plus service charges."

         At the beginning of the January 2017 statement period, Majeski's checking account contained a positive balance. That statement reflects several charges that caused his account to have a negative balance. Majeski communicated to Frost Bank that he neither made nor authorized those charges, and Frost issued a provisional credit in the amount of those charges.

         In February of 2017, Frost reversed that provisional credit, leaving the account with a balance of $-3, 310.65. Frost assessed the March service charge/fee of $5.00 before charging off the amount of $3, 315.65. In January of 2018, Frost sued Majeski for that amount.

         After Majeski answered, Frost moved for summary judgment. Majeski filed a response supported by his own affidavit. In that affidavit, Majeski averred that the unauthorized charges actually occurred-and that Frost initially issued a provisional credit for the amount of those charges-in October of 2016. According to Majeski, although Frost reversed the provisional credit in December of 2016, it returned that amount to his account after he presented additional information showing that he neither made nor authorized the charges. After a hearing, the trial court granted summary judgment in Frost's favor, and Majeski appealed.

         Summary Judgment Analysis

         In his first two issues on appeal, Majeski contends the trial court erred in not only concluding that Frost was entitled to judgment as a matter of law, but also in failing to find that Majeski's evidence raised a fact issue. We consider these arguments together.

         Standard ...


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