Venetian Blind & Floor Covering, Ltd. v. Wells Fargo Bank, N.A.

Filing 91

MEMORANDUM OPINION AND ORDER denying 46 Motion for Partial Summary Judgment. (Signed by Magistrate Judge Stephen Wm Smith) Parties notified. (jmarchand)

UNITED STATES DISTRICT COURT S O U T H E R N DISTRICT OF TEXAS H O U S T O N DIVISION V ENETIAN BLIND & FLOOR COVERING, LTD.,§ D /B /A GULF COAST FLOOR COVERING § P l a i n t i ff , § § vs. § § W ELLS FARGO BANK, N.A., § D e fe n d a n t. §

C IVIL ACTION H-08-2451

M E M O R A N D U M OPINION AND ORDER T h is banking dispute is before the court on defendant's motion for partial summary ju d g m e n t based on limitations (Dkt. 46). Defendant's motion is denied. P lain tiff has sued defendant for wrongful payment of numerous checks that its e m p lo ye e (Marcia Sinclair) wrongly deposited into her personal bank accounts. Plaintiff has f ile d a binding stipulation that it is not seeking to recover on any claim for conversion that ac cru ed prior to June 28, 2005 (Dkt. 52). Plaintiff's stipulation renders defendant's motion moot. Defendant expressly moved f o r a ruling "that all claims, causes of action, and theories of liability that predate June 27, 2 0 0 5 be held to violate the statute of limitations." 1 Having gotten what it asked for, d e f e n d a n t raised a new theory in reply, seeking dismissal of plaintiff's conversion claims in th e ir entirety.2
1

Motion (Dkt. 46), at 2. Defendant contends that the relief sought in its reply is what it was seeking all along. That position is belied by the title of defendant's motion: "motion for partial summary judgment on limitations." (emphasis added).

2

T h is court is not obligated to consider a new ground for relief raised in defendant's re p ly. Gillaspy v. Dallas Indep. School Dist., 278 F. App'x. 307, *7 (5th Cir. 2008) (citing P e te e t v. Dow Chem. Co., 868 F.2d 1428, 1437 (5th Cir. 1989)). Nonetheless, the court has d o n e so and concludes it is without merit. Defendant's position ­ that all of plaintiff's claims accrued prior to June 27, 2005 and a re time-barred 3 ­ is based on the premise that all of plaintiff's check conversion claims a c cru e d when Wells Fargo negligently failed to adequately vet Sinclair when her account was o p e n e d in 2004.4 This is a misstatement of the law. "As a rule, . . . a cause of action accrues w h e n a wrongful act causes some legal injury, even if the fact of injury is not discovered u n til later, and even if all resulting damages have not yet occurred." Murphy v. Campbell, 9 6 4 S.W.2d 265, 270 (Tex. 1997). A cause of action for conversion based on wrongful p a ym e n t of a check accrues when the check is paid. Clearfield Trust Co. v. United States, 3 1 8 U.S. 363, 368 (1943); Rodrigue v. Olin Employees Credit Union, 406 F.3d 434, 447 (7th C ir. 2005); Yazdchi v. Washington Mutual, No. 14-04-00639-CV, 2005 WL 2276886 (Tex.

3

The parties do not dispute that a claim for conversion must be commenced within three years after the cause of action accrues. TEX. BUS. & COM. CODE § 3.118(g). This argument is premised on the opinion of plaintiff's expert, Micheline Ellas, that Wells Fargo should have closed Sinclair's account in 2004. Defendant's reply, exhibit A (Dkt. 591). 2

4

A p p . ­ Houston [14th Dist.] 2005, n.p.h.). Defendant's position places undue emphasis on o n e allegedly wrongful act by defendant,5 and ignores the date of plaintiff's legal injury. B ec au se the parties' stipulation (Dkt. 52) resolves the one issue raised in defendant's m o tio n for partial summary judgment (Dkt. 46), defendant's motion is denied. Signed at Houston, Texas on January 4, 2010.

5

Indeed, the negligence in 2004 about which plaintiff's expert testified is not the only allegedly wrongful act by the bank. 3