McCreary v. Bay Area Bank & Trust

• Decision Date: 26 July 2001
• Docket Number: No. 14-00-00156-CV.,14-00-00156-CV.
• Citation: 68 S.W.3d 727
• Parties: Richard McCREARY and Randy Siebert, on Behalf of Themselves and Others Similarly Situated, Appellants, v. BAY AREA BANK & TRUST, Appellee.
• Court: Texas Court of Appeals

68 S.W.3d 727

Richard McCREARY and Randy Siebert, on Behalf of Themselves and Others Similarly Situated, Appellants, v. BAY AREA BANK & TRUST, Appellee.

No. 14-00-00156-CV.

Court of Appeals of Texas, Houston (14th Dist.).

July 26, 2001.

Daniel J. Petorski, Fleming Hovenkamp & Grayson, P.C., Houston, for appellants.

John McEldowney, Greer, Herz & Adams, L.L.P., Galveston, Charles Eugene Baumann, Locke, Liddell & Sapp, LLP, Houston, Frederick J. Bradford, McLeod, Alexander, Powel & Apffel, P.C., Galveston, Ronald D. Krist, Krist Law Firm, P.C., Herbert T. Schwartz, Williams Bailey Law Firm, L.L.P., Mallory Wade Turner, Houston, for appellee.

Panel consists of Justices ANDERSON, HUDSON, and SEYMORE.

OPINION

HUDSON, Justice.

Appellants are customers of Bay Area Bank & Trust (now operating as Horizon Capital Bank). When the bank allegedly breached its deposit agreement with appellants, a class action suit was brought against the bank under a variety of contract and tort claims. Because the only contested issue is the interpretation of the deposit agreement, the bank sought summary judgment. The trial court granted the bank's motion for summary judgment. We affirm.

The summary judgment proof indicates that in 1983 the bank began to run the following advertisement:

10% RETURN

Guaranteed for Life On Individual Retirement Accounts

Bay Area Bank & Trust is the only bank in the Bay Area that ...

✓ guarantees rates for 18 months

✓ guarantees a minimum return of 10% for life

In 1985, after viewing the advertisement, Richard McCreary and Randy Siebert each opened an individual retirement account. The deposit contract provided that funds deposited in an IRA would be invested "in interest-bearing savings accounts." This interest-bearing account was further described in a typewritten addendum as an "18 month time open savings account."¹ Thus, the funds placed into an IRA would, in turn, be deposited in a savings account with a fixed interest rate for 18 months. At maturity, the funds would be reinvested routinely into a new savings account with a new interest rate fixed for yet another 18 months. The addendum provided, however that "the minimum rate of interest paid will never be less than 10%."²

In 1987, due to changing economic conditions, the maximum money market interest rate fell below 10 percent. The bank, however, continued to pay at least 10 percent interest on its IRA savings accounts. Thus, the bank began losing money on the program. In 1991, the bank amended the terms of the savings accounts to provide for (1) simple, rather than compound, interest, (2) a service fee, (3) and a twelve month, rather than an eighteen month, maturity period. Despite these amendments, the bank concluded in the mid-1990's that it could not afford to continue paying 10 percent interest. Accordingly, the bank gave written notice to appellants that upon maturity of their current savings accounts, the rate of interest on new savings accounts in their IRA's would fall below 10 percent.

In 1997, appellants sued the bank for breach of contract, fraud, fraudulent concealment, negligence, and gross negligence. Relying on representations made at the time the accounts were opened, as well as the express terms of the deposit contracts, appellants alleged that the bank either misrepresented the interest rate or breached the terms of the deposit agreement. The bank responded to appellants' suit with a motion for summary judgment in which it argued that appellants' claims fail as a matter of law because it was authorized by Section 34.302 of the Texas Finance Code to unilaterally reduce the rate of interest on all accounts having no maturity date.

Appellant presents two issues: (1) Does the addendum to the deposit contract guarantee a minimum rate of interest of 10 percent for the life of the contract?; and (2) Does the deposit contract have a fixed maturity date?

Contract Provisions Regarding Interest

When interpreting the provisions of a written contract, we must consider the document as a whole, and read each part in light of all other parts. City of Bunker Hill Village v. Memorial Villages Water Authority, 809 S.W.2d 309 (Tex.App.-Houston [14th Dist.] 1991, no writ). If the contract is worded in such a manner that it can be given a definite or certain legal meaning, it is not ambiguous. Friendswood Development Co. v. McDade + Co., 926 S.W.2d 280, 282 (Tex.1996). However, if the meaning of the contract is uncertain and doubtful or is reasonably susceptible to more than one meaning, it is ambiguous. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). Whether a contract is ambiguous is a question of law for the court to decide. Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex.App.-Waco 1997, pet. denied). Moreover, a court may conclude that a contract is ambiguous even in the absence of such a pleading by either party. Sage St. Assocs. v. Northdale Constr. Co., 863 S.W.2d 438, 445 (Tex. 1993).

Here, the contract contains two provisions regarding the interest to be paid. First, the contract generally provides:

Under Individual Retirement Accounts, the funds deposited with the Custodian are deposited in interest-bearing savings accounts and, when permitted, time deposits. The interest rates that may be paid, and the period, if any, over which that rate is guaranteed are controlled by regulations issued by Federal and/or State authorities.

Second, an addendum to the contract provides that "the minimum rate of interest paid will never be less than 10%."

Appellants contend the addendum unequivocally guarantees a return of not less than 10 percent interest on all funds deposited in an IRA. The bank, on the other hand, asserts that under the terms of the contract, an IRA earns no interest; rather, interest is paid only on the "interest-bearing savings accounts and ... time deposits" within the IRA's. Thus, the bank claims it promised to pay at least 10 percent interest only for the life of the interest-bearing vehicles, i.e., the 18 month savings accounts. When the first savings accounts expired at the end of their 18 month maturity periods, the bank contends it was released from its obligation to pay at least 10 percent interest. The bank argues this is the only reasonable construction of the addendum in light of certain contract provisions granting it authority to amend the terms of the IRA at any time.³

We are obliged, if possible, to give effect to all the terms of a contract so none will be rendered meaningless. Kelley-Coppedge, Inc. v. Highlands Ins. Co., 980 S.W.2d 462, 464 (Tex.1998). To construe the addendum as merely a promise to pay interest on an interest-bearing savings account until the date of its maturity would render it redundant. Construed in this fashion, the addendum would be a superfluous agreement to abide by an agreement. Such a construction is contrary to the plain words of the addendum, namely, that "the minimum rate of interest paid will never be less than 10%." (Emphasis added).

In construing a contract, we must determine and give effect to the intent of the parties. Sun Oil Co. (Delaware) v. Madeley, 626 S.W.2d 726, 727-28 (Tex.1981). When determining the intention of the parties, we will consider all the pertinent provisions of the contract and harmonize, if possible, those provisions which appear to conflict by using the applicable rules of construction. Ogden v. Dickinson State Bank, 662 S.W.2d 330, 332 (Tex.1983). One general rule of construction is that when there is a conflict between two provisions, the specific provision controls over the general provision. Ostrowski v. Ivanhoe Property Owners Improvement Ass'n, Inc., 38 S.W.3d 248, 254 (Tex.App.-Texarkana 2001, pet. denied). Moreover, to the extent that typewritten provisions of a contract conflict with printed provisions, the typewritten provisions must be given effect over the printed provisions. Meisler v. Republic of Texas Sav. Ass'n, 758 S.W.2d 878, 884 (Tex.App.-Houston [14th Dist.] 1988, no writ); also McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341, 344 (1957); Easy Living, Inc. v. Cash, 617 S.W.2d 781, 785 (Tex.Civ.App.-Fort Worth 1981, no writ). The rationale for the rule is that typewritten provisions are the immediate language and terms selected by the parties themselves as setting forth their intentions, whereas the printed form is intended for general use without reference to particular objects and aims. Leslie Lowry & Co. v. KTRM, Inc., 239 S.W.2d 898, 900 (Tex.Civ. App.-Beaumont 1951, no writ). Here, the printed portion of the contract authorizes the bank to unilaterally change any provision of the deposit contract with proper notice. The typewritten provision provides, however, that the interest rate will never fall below 10 percent. Thus, the typewritten provision is more specific than the printed provision.

Applying these rules of construction, we find there is no "conflict" between the typewritten addendum and the printed contract. The addendum is an exception to the general contract provisions and reserves one term of the agreement which cannot be amended by the bank, i.e, the interest rate may not be reduced below 10 percent. Hence, the deposit agreement is not ambiguous.

Accordingly, the contract provides that the bank may unilaterally amend any term of the deposit contract except its promise to pay at least 10 percent interest. Thus, we find the bank agreed to pay no less than 10 percent interest on all savings accounts in the IRA's for as long as appellants maintained their IRA's with the bank.

Maturity Date

Notwithstanding the express terms of the contract, the bank contends it is statutorily authorized to unilaterally alter the interest rate on all accounts having no maturity date. See TEX. FIN.CODE ANN. § 34.302 (Vernon 1998).⁴ Appellants do not dispute the effect of the statute, but claim it is not applicable here because an IRA has a discernible "maturity date" in that the Internal Revenue...