Davis v. West (pdf) (Tex.App.- Houston [1st Dist.] Dec. 31, 2009)(Hanks)(derived judicial immunity)
(turnover relief, void vs voidable order, existence of fiduciary duty, sufficiency of notice of summary judgment
hearing)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks    
Before Justices Keyes, Alcala and Hanks   
01-08-01006-CV  Veronica Davis v. James A. West, Henry V. Radoff,
Houston Reporting Services & Prosperity Bank, Inc..   
Appeal from 149th District Court of Brazoria County
Trial Court Judge: Hon. Robert E. May   

O P I N I O N

Appellant, Veronica Davis, complains that the trial court improperly granted summary judgment dismissing her
claims against Henry V. Radoff and Prosperity Bank ("the Bank"). We affirm.

Background

In 2004, Houston Reporting Service, ("Houston Reporting") filed a suit on a sworn account against Davis, an
attorney who used Houston Reporting's services during a past deposition. The suit was filed in Justice Court in
Harris County. In its suit, Houston Reporting sought payment of $1083.98 plus attorney's fees, interest and
costs. A default judgment was entered against Davis. After the default judgment became final, Houston
Reporting began efforts to collect the amount owed. The justice court entered a written order, signed on June
27, 2006, appointing Radoff as receiver and including a turnover order commanding that Radoff take
possession of "all . . . monies on deposit in financial institutions, financial accounts (bank accounts), certificate
of depositions, money market accounts, accounts held by any third party. . . . " Pursuant to the court's order,
Radoff was required to post a bond in the sum of $100.00. The turnover order did not state the total amount
of the judgment serving as the basis for the receivership, nor did it include any statement as to the costs, fees
or interest awarded in that underlying judgment. The underlying default judgment was not attached to the
turnover order and it does not appear in the record of this appeal.

On July 24, 2006, Radoff sent Davis a letter informing her that he had been named receiver and asking that
she turn over any nonexempt property to satisfy the judgment against her. On July 25, 2006, the Bank
received a faxed letter from Radoff, stating that he had been appointed receiver and empowered to seize
funds belonging to Davis. Radoff demanded that all accounts in Davis's name be frozen and he stated that the
amount due was $3,400. A copy of the turnover order appointing Radoff as receiver was attached to this faxed
letter. On July 26, Radoff sent a second letter to the Bank stating that the amount to be turned over was
$4,144.91. The Bank released the sum of $4,144.91 to Radoff. This sum was used to satisfy the judgment
owed to Houston Reporting and the receivership was then closed. That same day, the Bank sent Davis a letter
informing her that it had received the order from Radoff and that her account had been frozen.

On October 9, 2006, Davis filed this action in district court in Brazoria County against Houston Reporting, its
attorney, Radoff and the Bank. Davis asserted a challenge to the receivership, a claim for abuse of process
against Radoff, and claims for breach of contract and breach of fiduciary duty against the Bank. Davis also
alleged that the Bank had released personal information to Radoff without her permission.

On August 24, 2007, Radoff filed a motion for summary judgment. On February 1, 2008, the trial court granted
summary judgment in Radoff's favor on the grounds that he was entitled to derived judicial immunity and
dismissed Davis' claims regarding the insufficiency of his bond. The trial court denied Radoff's no-evidence
motion.

On July 21, 2008, the Bank sought summary judgment, arguing that Davis had no evidence to support her
claims and that, as a matter of law, it was insulated from any liability by statute. The Bank's motion also argued
that Davis could not present any evidence that its failure to demand a certified copy of the turnover order,
rather than a faxed copy, was the proximate cause of any of Davis's damages.

Davis filed a response to the Bank's motion and her own cross-motion for summary judgment against the Bank
on August 8, 2008. Davis's response to the Bank's motion alleged that the Bank's motion should not be
granted due to the fact that the Bank's notice of the hearing failed to give adequate notice and because an
adequate time for discovery had not yet elapsed. In her cross-motion, Davis asked that the court grant her
summary judgment on her breach of contract claim against the Bank.

On August 12, 2008, the trial court granted the Bank's motion for traditional and no-evidence summary
judgment. The trial court denied Davis's motion for summary judgment on October 6, 2008. On November 11,
2008, the trial court entered an order severing Davis's claims against Radoff and the Bank from her claims
against Houston Reporting and its attorney. This appeal by Davis followed.

Analysis

On appeal, Davis complains that the trial court erred by rendering summary judgment on her claims against
Radoff and the Bank. As to Radoff, Davis contends the trial court erred by rendering summary judgment in
Radoff's favor because Radoff does not enjoy derived judicial immunity nor did Radoff have any "authority to
act at all in this case" because the order under which he acted was invalid. As to the Bank, Davis argues the
trial court erred by granting the Bank's motion for summary judgment because (1) the Bank released funds
from her account to Radoff without demanding a certified copy of the turnover order, (2) the order appointing
Radoff was invalid, and (3) the Bank was not served with the order at its registered address. Davis also
complains that she did not receive proper notice of the hearing on the Bank's motion for summary judgment
under Rule 21a of the Texas Rules of Civil Procedure.

Standard of Review

Radoff and the Bank moved for summary judgment on both traditional and no-evidence grounds, and Davis
sought a traditional summary judgment on her breach of contract claim. Thus, we apply the familiar standard
of review appropriate for each type of summary judgment, taking as true all evidence favorable to the
nonmovant, and indulging every reasonable inference and resolving any doubts in the nonmovant's favor.
See, e.g., Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004) (traditional summary
judgment); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (no-evidence summary judgment).

When both parties to a suit move for summary judgment, each party bears the burden of establishing that it is
entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex.
2000). When the trial court grants one party summary judgment and denies the other, we review both parties'
summary judgment evidence, determine all questions presented, and render the judgment the trial judge
should have rendered. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). When the
trial court does not specify the basis on which it granted summary judgment, the judgment will be affirmed on
any meritorious ground expressly presented in the motion and which is preserved for appellate review. State
Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).

1. Did the trial court err in granting Radoff's Motion for Summary Judgment?

1. Radoff's Derived Judicial Immunity

In her first issue, Davis contends that the trial court erred in granting Radoff's motion for summary judgment
because he does not enjoy derived judicial immunity and the Texas Civil Practice and Remedies Code
specifically allows suits against receivers. (1)

A person entitled to derived judicial immunity receives the same absolute immunity from liability for acts
performed within the scope of his jurisdiction as a judge. Dallas County v. Halsey, 87 S.W.3d 552, 554 (Tex.
2002). Judicial immunity can attach to certain non-judges because the policy reasons for judicial
immunity--protection of individual judges and of the public's interest in an independent judiciary--are also
implicated when judges delegate their authority, appoint another to perform services for the court, or allow
another to otherwise serve as an officer of the court. Id. In those circumstances, the immunity attaching to the
judge follows the delegation, appointment, or court employment. Id. The person acting in such a capacity thus
also enjoys absolute immunity, which is known as derived judicial immunity. Id.

Texas uses a "functional approach" to determine whether someone is entitled to derived judicial immunity. Id.
at 556-57. The "functional approach looks to whether the person seeking immunity is intimately associated
with the judicial process" and whether "that person exercises discretionary judgment comparable to that of the
judge." Id. at 554 (citing Delcourt v. Silverman, 919 S.W.2d 777, 782 (Tex. App.--Houston [14th Dist.] 1996,
writ denied)). The functional approach focuses on the nature of the function performed, not the identity of the
actor, and considers whether the court officer's conduct is like that of the delegating or appointing judge. Id. at
555.

Radoff contends that, as a court-appointed receiver acting within the scope of his authority, he is entitled to
derived judicial immunity. We agree. "Like a court-appointed bankruptcy trustee acting within his authority as
trustee, a court-appointed receiver acts as an arm of the court and is immune from liability for actions
grounded in his conduct as receiver." Rehabworks, LLC v. Flanagan, No. 03-07-00552-CV, 2009 WL 483207
(Tex. App.--Austin 2009, pet. denied) (mem. op) (citing Clements v. Barnes, 834 S.W.2d 45, 46 (Tex. 1992)
(court-appointed bankruptcy trustees acting within scope of authority entitled to derived judicial immunity);
Alpert v. Gerstner, 232 S.W.3d 117, 130-31 (Tex. App.--Houston [1st Dist.] 2006, pet. denied)
(court-appointed receiver entitled to derived judicial immunity for all acts authorized by court, but not for
breach of fiduciary duties); Spigener v. Wallis, 80 S.W.3d 174, 183 (Tex. App.--Waco 2002, no pet.)
(characterizing court-appointed receiver as agent of court)).

"Once an individual is cloaked with derived judicial immunity because of a particular function being performed
for a court, every action taken with regard to that function--whether good or bad, honest or dishonest,
well-intentioned or not--is immune from suit. Once applied to the function, the cloak of immunity covers all acts,
both good and bad." Id. (citing Ramirez v. Burnside & Rishebarger, L.L.C., No. 04-04-00160-CV, 2005 WL
1812595 (Tex. App.--San Antonio Aug. 3, 2005, no pet.) (mem. op.)).

Here, the turnover order was issued by a Harris County justice court. It recited that "whereupon the Court's
review of the papers herein on file, [the Court] became of the opinion that [Houston Reporting] holds and is
entitled to collect upon a true, final, valid and subsisting judgment against Defendant-in-Judgment, VERONICA
L. DAVIS . . . ." The Court accordingly ordered that

HENRY RADOFF, . . . be and is hereby appointed Receiver to serve after posting bond in the sum of $100
and taking the oath of office , in this case pursuant to the Texas Turnover Statute, with all the power and
authority to take possession of all non-exempt property of Respondent VERONICA L. DAVIS, that is in the
actual or constructive possession or control of Respondent VERONICA L. DAVIS, including but not limited to
all property incidental to or associated with the daily operation of Respondent VERONICA L. DAVIS . . .
including but not limited to all cash, . . . drafts and checks, monies on deposit in financial institutions, financial
accounts (bank accounts), certificates of deposit, money market accounts, accounts held by any third party, . .
. that is in the actual or constructive possession of Respondent VERONICA L. DAVIS; and to pay the proceeds
to the Receiver to the extent required to satisfy said judgment, but not to exceed the full amount awarded
under the judgment (or balance due if the judgment has been partially satisfied) which amount includes
principal, attorney's fees and prejudgment interest, together with postjudgment interest and costs and the
amount of attorney's fees awarded herein; . . .

On appeal, Davis complains that Radoff took actions violating the turnover order. Specifically, Davis alleges
that the order does not allow Radoff to seize property from the Bank but that he instead only may receive
property from Davis, that he must act in tandem with the constable or sheriff, and that he was required to hold
a hearing to determine the amount of money Davis needed to live on and to provide for her dependents.
Davis also appears to allege that Radoff seized exempt assets and that he improperly seized her assets
without providing a certified copy of the turnover order to the Bank.

However, as set out above, the turnover order in this case is extremely broad. The order granted Radoff the
explicit power to perform the acts that form the basis of Davis's complaints--to locate and take control of any
cash she had deposited in bank accounts and to use that money to satisfy the underlying default judgment
against her. Davis's petition does not allege any acts by Radoff except those performed in his capacity as
receiver, and those acts are within the bounds of the turnover order.

Davis's argument regarding Texas Civil Practice and Remedies Code section 64.052 is also unsuccessful.
Section 64.052 allows suits against receivers "in their official capacity" to be brought in a court of competent
jurisdiction without permission of the appointing court. Tex. Civ. Prac. & Rem. Code Ann. § 64.052 (Vernon
2008). It is, in essence, a venue provision that has "the effect of making receivers subject to the general
venue statute and thereby served the convenience of the public by abolishing the common-law rule that only
the court appointing the receivers should have jurisdiction and venue on suits brought against the receiver."
Carson v. Hilley, 484 S.W.2d 457, 460 (Tex. App.--Fort Worth 1972, no writ). Section 64.052 does not enlarge
or restrict the causes of action that may be asserted against a receiver, nor does it abrogate a receiver's
derived judicial immunity for acts taken within the scope of his receivership. See, e.g., Rehabworks, LLC v.
Flanagan, No. 03-07-00552-CV, 2009 WL 483207 (Tex. App.--Austin 2009, pet. denied) ("We have already
concluded that derived judicial immunity shields a court-appointed receiver from suit in this case, where the
receiver acts as an arm of the court and the suit is based on actions taken within the scope of the receiver's
authority.").

Accordingly, we conclude that the trial court properly granted summary judgment on Radoff's motion for
summary judgment as a matter of law on his defense of derived judicial immunity.

We overrule Davis's first issue.

B. The Validity of the Turnover Order

In her second issue, Davis challenges the validity of the turnover order and argues that the trial court
improperly granted summary judgment for Radoff because the order under which he acted was invalid. Davis
contends the order was invalid because Houston Reporting failed to make the proper showing under Texas
Civil Practice and Remedies Code section 31.002(a) when requesting the turnover order and because the
turnover order does not specify the dollar amount of the underlying judgment.

The Texas turnover statute is a procedural device to assist judgment creditors in post-judgment collection. A
judgment creditor is entitled to receive aid from a court in order to reach property to obtain satisfaction on a
judgment "if the judgment debtor owns property . . . that: (1) cannot readily be attached or levied on by
ordinary legal process; and (2) is not exempt from attachment, execution, or seizure for the satisfaction of
liabilities." Tex. Civ. Prac. & Rem. Code Ann. § 31.002 (a) (Vernon 2008). The statute empowers courts to
order a judgment debtor to turn over nonexempt property that is in the debtor's possession or subject to the
debtor's control, including present or future rights to property. Id. § 31.002 (b)(1). It also allows a court to
appoint a receiver "with the authority to take possession of the nonexempt property, sell it and pay the
proceeds to the judgment creditor to the extent to satisfy the judgment." Id. § 31.002(b)(3). The trial court is
not required to identify in the order the specific property subject to turnover. Id. § 31.002(h). In addition, the
trial court may enforce the turnover order by contempt proceedings. Id. § 31.002(c).

We have previously construed the turnover statute as requiring an evidentiary showing to support the entry of
the court's order:

Before a trial court may grant relief under section 31.002(b), the conditions of section of 31.002(a) must exist,
namely, (1) the entity that is to receive aid must be a judgment creditor; (2) the court that would grant aid must
be one of appropriate jurisdiction; (3) the aid to be given must be in order to reach property to obtain
satisfaction on the judgment; and (4) the judgment debtor must own property (including present or future
rights to property) that: (a) cannot be readily attached or levied on by ordinary legal process and (b) is not
exempt from attachment, execution, or seizure for the satisfaction of liabilities. Tanner v. McCarthy, 274
S.W.3d 311, 322 (Tex. App.--Houston [1st Dist.] 2008, no pet.). In essence, Davis complains on appeal that
the turnover order was issued without the necessary evidentiary underpinnings, and that the scope of Radoff's
powers exceeds that allowed by the statute. We construe this as a collateral attack on the turnover order.

"A collateral attack on a judgment is an effort to avoid its binding force in a proceeding, instituted not for the
purpose of correcting, modifying, or vacating it, but in order to obtain specific relief against which the judgment
stands as a bar." Boudreaux Civic Ass'n v. Cox, 882 S.W.2d 543, 549 (Tex. App.--Houston [1st Dist.] 1994, no
writ) (quoting Texaco, Inc. v. LeFevre, 610 S.W.2d 173, 176 (Tex. Civ. App.--Houston [1st Dist.] 1980, no writ)).

As a general rule, turnover orders are final, appealable orders. Burns v. Miller, Hiersche, Martens & Hayward,
P.C., 909 S.W.2d 505, 506 (Tex. 1995). As such, turnover orders must be attacked on direct appeal. See,
e.g., In re Wiese, 1 S.W.3d 246, 249 (Tex. App.--Corpus Christi 1999, orig. proceeding). In Wiese, the
judgment debtor failed to comply with a turnover order and was held in contempt. Id. at 247. She petitioned for
a writ of habeas corpus, arguing in part that the underlying turnover order was void because it made no
provision for the deduction of underlying reasonable and necessary business expenses. Id. The Corpus
Christi Court of Appeals declined to reach that argument because the debtor had failed to challenge the
turnover order by direct appeal. Id. at 249. The Court noted that the turnover order in that case failed to
include any evidentiary findings relating to the amount of the property to be seized and whether the debtor
owned enough property to satisfy the judgment, and also failed to make provisions for the debtor's reasonable
and necessary business expenses. Id. at 250. Nevertheless, the Court held that "the fact that the turnover
order is contrary to a statute or contains errors only makes the judgment 'voidable' and does not give a party
the right to circumvent ordinary appellate or other direct procedures to correct it." Id. at 250-51.

Similarly, even if the turnover order in this case failed to include the amount of the underlying judgment to be
satisfied, required Davis to turnover exempt property or contained other requirements in contravention of the
turnover statute, the order would be voidable--not void--and it must therefore have been the subject of a
direct attack. Id. at 250. Davis cannot use these alleged deficiencies to defeat Radoff's derived judicial
immunity or to hold Radoff or the Bank liable for actions taken in reliance upon the turnover order when she
failed to timely prosecute a direct appeal of the turnover order or seek injunctive or mandamus relief
prohibiting the execution of the turnover order. We overrule Davis's second issue.

II. Did the trial court err by granting the Bank's motion for summary judgment?

Davis also contends that the trial court erred by granting the Bank's motion for summary judgment. The Bank
moved for both a no-evidence and traditional summary judgment, and the order granting summary judgment in
the Bank's favor does not specify the grounds upon which judgment was granted. Accordingly, we may affirm
on any grounds that could have supported the trial court's judgment. State Farm Fire & Cas. Co. v. S.S., 858
S.W.2d 374, 380 (Tex. 1993).

In her third and fourth issues, Davis argues that the trial court improperly granted summary judgment in the
Bank's favor because the turnover order is "invalid on its face." We have addressed these points above, and
have found them to be an impermissible collateral attack on the turnover order. We overrule that portion of
Davis's third and fourth issues addressing the validity of the underlying order.

A. The Bank's Failure to Insist Upon a Certified Copy of the Turnover Order

The remaining portion of Davis's third issue argues that the trial court erred in granting summary judgment in
the Bank's favor because the Bank never received a certified copy of the turnover order and it may not
therefore rely upon the normal statutory protections for institutions who act in accordance with court orders.

A financial institution that complies with an order to turn over assets to a receiver is not liable for such
compliance to a judgment debtor. Tex. Civ. Prac. & Rem. Code Ann. § 31.010 (Vernon 2008). Additionally,
when a claim is made against a customer of a financial institution, "[t]he customer bears the burden of
preventing or limiting a financial institution's compliance with or response to [such] claim . . . ." Tex. Fin. Code
Ann. § 59.008(c) (Vernon 2008) (listing available remedies such as restraining orders, injunctions, and
protective orders to prevent or suspend financial institution's response to claim against customer). "Section
59.008 unequivocally places the burden on a customer of a financial institution to prevent a financial institution
from complying with or responding to notices of freeze, receivership, restraining orders, and injunctions
asserting or establishing claims against customer accounts." Yazdchi v. Bank One, Texas, N.A., 177 S.W.3d
399, 406 (Tex. App.--Houston [1st Dist.] 2005, pet. denied).

Davis argues on appeal that the Bank is not entitled to rely upon these statutory protections because the
Bank failed to insist that it be served at its registered address for service with a certified copy of the turnover
order. In addition, Davis argues that the Bank was not required to comply with Radoff's request because he
never served a certified copy of the turnover order upon it and that the Bank's compliance with his request
was therefore a breach of contract and a breach of a fiduciary duty to Davis. The Bank's no-evidence motion
for summary judgment below, however, specifically challenged the causation element of Davis's claims. Thus,
the Bank's no-evidence motion required Davis to present evidence that the Bank's failure to insist that Radoff
provide it with a certified copy of the turnover order at its registered address was the proximate cause of any
damages or injury to Davis. Whether or not the Bank was entitled to rely on the statutory protections is an
issue that we need not reach here, because Davis did not present any evidence to show that the Bank's
actions were the cause of any damages or injury to her. See, e.g., Tex. R. Civ. P. 166a(i); Landers v. State
Farm Lloyds, 257 S.W.3d 740, 746 (Tex. App.--Houston [1st Dist.] 2008, no pet.) (no-evidence motion filed
under 166a(i), challenging specific element of plaintiff's case, shifts burden to nonmovant to raise genuine
issue of material fact by presenting at least scintilla of evidence as to challenged element); Abraxas Petroleum
Corp. v. Hornburg, 20 S.W.3d 741, 758 (Tex. App.--El Paso 2000, no pet.) (damages to plaintiff resulting from
breach is element of breach of contract action); Martin v. Estates of Russell Creek Homeowners Ass'n, Inc.,
251 S.W.3d 899, 904 (Tex. App.--Dallas 2008, no pet.) (damages "necessary" element of breach of fiduciary
duty claim and nonmovant must present at least scintilla of evidence raising genuine issue of material fact
when responding to no-evidence motion for summary judgment motion).

1. No Evidence of Breach of Contract and Breach of Fiduciary Duty

Davis also argues that the trial court erred by granting summary judgment in the Bank's favor on her breach of
contract and breach of fiduciary duty claims. First, Davis argues that the Bank breached its fiduciary and
contractual duties to her by failing to notify her of Radoff's actions prior to releasing her funds to Radoff. Davis
alleges that, had she been timely notified of Radoff's demand upon the Bank, she would have been able to
take action to prevent Radoff's depletion of her account. Further, she alleges that the Bank breached its
duties to her by actually turning over funds in her account to Radoff. However, Davis never presented any
authority to show that the Bank had a duty--fiduciary or contractual--to promptly notify her of Radoff's
demands, nor did she show that the Bank failed to notify her. (2)

Whether a confidential or fiduciary relationship exists is normally a question of fact to be decided by a jury.
Crim Truck & Tractor v. Navistar Int'l, 823 S.W.2d 591, 594 (Tex. 1992), superseded by statute, Tex. Rev. Civ.
Stat. art. 4413(36), § 6.06(e), as recognized in Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d
212, 225-26 (Tex. 2002); see also Taylor v. GWR Operating Co., 820 S.W.2d 908, 911 (Tex. App.--Houston
[1st Dist.] 1991, writ denied). When the issue is one of no evidence or conclusive evidence, the issue is a
question of law. Crim Truck & Tractor, 823 S.W.2d at 594 (no evidence).

The relationship between a bank and its customers does not usually create a special or fiduciary relationship.
Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 675 (Tex. App.--Houston [1st Dist.] 1996, no writ);
Manufacturers Hanover Trust Co. v. Kingston Investors Corp., 819 S.W.2d 607, 610 (Tex. App.--Houston [1st
Dist.] 1991, no writ). "Specifically, the relationship between a bank and its customers does not usually create a
special or fiduciary relationship. However, when a special relationship between a borrower and lender has
been found, it has rested on extraneous facts and conduct, such as excessive lender control over, or
influence in, the borrower's business activities." Farah, 927 S.W.2d at 675. In responding to the Bank's
no-evidence motion for summary judgment, Davis did not present any such "extraneous facts and conduct"
justifying the imposition of a fiduciary relationship with the Bank.

Similarly, Davis never cited any contractual provision in her deposit agreement with the Bank that prohibited
the Bank's payment of funds from her account pursuant to a turnover order issued by a court or which
required the Bank to notify her sooner than the next day after receiving the turnover order. Nothing in the
provisions of the depositor agreement that Davis cites prevented the Bank from complying with the turnover
order or requires that the Bank notify her immediately of a turnover order. In fact, the language she cites
specifically acknowledges that the Bank may have obligations arising from "state and federal law" that are not
outlined in the depositor agreement.

Davis relies upon FNFS, Ltd. v. Sec. State Bank & Trust, 63 S.W.3d 546 (Tex. App.--Austin 2001, pet.
denied), to argue that the Bank had an implied duty to pay only those sums she ordered from her account,
and no others. However, FNFS does not stand for the proposition Davis urges. Instead, FNFS dealt with the
question of "negotiation" of payable instruments and used the cited language to delineate a bank's obligations
to pay negotiable instruments as instructed. Id. at 550 ("The purpose of an endorsement is to identify the user
of the check so that the endorsement can be compared with the directions of the maker, that is, to ensure the
endorser is the same individual or entity as the payee . . . . This necessarily follows from the understanding
that, '[w]hen a customer deposits funds with a bank, the bank impliedly agrees to disburse those funds only in
accordance with the depositor's instructions.'") (citing La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.
W.2d 558, 563 (Tex. 1984); Tex. Bus. & Com. Code Ann. §§ 3.404(a), 4.401(a)). Accordingly, we hold that the
trial court did not err by rendering summary judgment on the Bank's behalf on Davis's claims and overrule the
remaining portion of Davis's third and fourth issues.

III. Did the trial court err by failing to grant Davis's motion for summary judgment?

In her fifth issue, Davis argues that the trial court erred by not granting her motion for summary judgment
against the Bank. Davis's argument on this issue is nearly incomprehensible, but she appears to reurge the
grounds discussed elsewhere--that the Bank breached a contractual or fiduciary duty to her and that the
turnover order was invalid. As discussed above, Davis was not entitled to summary judgment on these
grounds as a matter of law. We overrule Davis's fifth issue.

IV. Texas Rule of Civil Procedure 21a

In her sixth issue, Davis argues that the trial court erred by granting summary judgment for the Bank because
she did not receive sufficient notice of the hearing on the Bank's motions and because she lacked "adequate
time" to conduct discovery.

The certificate of service on the Bank's motion for summary judgment states that the document was forwarded
to Davis "via Facsimile and/or Certified Mail, Return Receipt Requested and/or First Class Mail" on July 17,
2008. The summary judgment motion in the record reflects that the motion was filed on July 21, 2008. Davis's
response to the Bank's motion for summary judgment alleged that an inadequate time for discovery had
elapsed and that she had not been afforded proper notice of the hearing on the Bank's motion. Davis did not,
however, move for a continuance nor did she file an affidavit as to any of the facts supporting her objection.
The summary judgment hearing took place on August 12, 2008. There is no evidence in the record to
establish when Davis first received notice of the August 12, 2008 hearing date. At the summary judgment
hearing, Davis again objected to inadequate notice and inadequate time for discovery but she failed to
present any motion to continue or file any affidavits regarding her objection.

In the summary judgment context, Texas Rules of Civil Procedure 166a(c) requires "[e]xcept on leave of court,
with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least
twenty-one days before the time specified for hearing." Tex. R. Civ. P. 166a(c). The rules for filing and serving
pleadings apply to summary judgment motions, including Rule 21a, which extends the minimum notice by three
days when the motion is served by mail. See Lewis v. Blake, 876 S.W.2d 314, 315-16 (Tex. 1994).

A certificate of service is prima facie evidence of the fact of service, but nothing in the rule "preclude[s] any
party from offering proof that the notice or instrument was not received, or, if service by mail, that it was not
received within three days . . . ." Tex. R. Civ. P. 21a.

Davis complains that the trial court erred in holding the hearing on the motion for summary judgment because
the hearing took place 22 days after the filing of the motion and "a hearing may not be held fewer than 24
days between the time the motion is mailed and the day of the hearing." Davis's argument confuses the filing
of a motion with the trial court, serving a copy of the motion upon a nonmovant, and notice that the motion is
set for hearing or submission.

The Bank's motion for summary judgment was served by mail upon Davis 26 days before the hearing on the
motion was held. The motion was then filed with the trial court 22 days before the hearing. We do not read the
rules as requiring that Davis be afforded 24 days' notice of the filing date of the motion for summary judgment.
We overrule Davis's issue relating to service of the motion.

Davis also argues on appeal that Rule 166a(i) states that a no-evidence motion for summary judgment may be
filed "after an adequate time for discovery." Tex. R. Civ. P. 166a(i). Davis contends that she did not have an
adequate time for discovery in light of health problems she encountered while the case was on file. However,
Davis waived any objection to an inadequate time for discovery by failing to file an affidavit explaining the need
for further discovery or a verified motion for continuance. Tenneco, Inc. v. Enterprise Prods., 925 S.W.2d 640,
647 (Tex. 1996) (failure to file affidavits or verified motion for continuance waives objection as to lack of time
for adequate discovery); Blanche v. First Nationwide Mortgage Corp., 74 S.W.3d 444, 450-51 (Tex.
App.--Dallas 2002, no pet.) (same).

We overrule Davis's sixth issue.

Conclusion

Because the trial court did not err by entering summary judgment in favor of Radoff and the Bank, we overrule
Davis's issues on appeal and affirm the judgment of the trial court.

George C. Hanks, Jr.

Justice

Panel consists of Justices Keyes, Alcala and Hanks.

1. Davis does not challenge the trial court's grant of summary judgment on the issue of whether Radoff's bond was sufficient.
Accordingly, she has waived this issue on appeal. Tex. R. App. Proc. 38.1(i) (brief must contain clear and concise argument,
with appropriate citations to authorities and the record); Smith v. Tilton, 3 S.W.3d 77, 89 (Tex. App.--Dallas 1999, no pet.) (failure
to raise and brief issue relating to error in summary judgment waives issue on appeal).

2. In fact, the evidence in the record reveals that the Bank timely notified Davis--the day after receiving Radoff's first letter--of its
receipt of Radoff's demands and its compliance with the turnover order, whether or not it had an affirmative duty to do so.