as well i think we have seasoned counsel here you're aware of the lighting system when the yellow light comes on you have two more minutes when the red light comes on cut it and rebuttal is for only we always appreciate record cites in just a warning some of us have i pads with the whole record up here so please make sure they're accurate record sites and with that we will go ahead and proceed to call the first case  constitute express written contracts that govern the very subject matter of the dispute and even though apple statutes the limitations of the presumption of payment should by those claims so you agree that you can only win on a question of law because the factual finding about whether he cashed in the certificate of deposit was found against your client i think your honor we did bring up issues related to the facts we the principle issues before the court really are questions of  law and that's what we need to focus on i think today so the first issue that i think the cork in these resolve this case on relates to whether there are in fact exists a cause of action for money had or were sieved under these circumstances it's the subject now the dispute relates to what is it that the plaintiff in this case is seeking to recover here its principal and the crude interest over the thirty some odd years that it is to ask you this is sort of a background question but i mean i live in texas i have bank accounts in texas and every time that i don't do something on my bank account for like ten days i get this letter your account is inactive agarwal we're going to a student to the state in five minutes and whatever i just feel constantly harassed by banks writing me about i'm not active enough in their particular account and how could this possibly happen in no state where i actually went looked up the statute minutes inactive after one year abandoned after three so i'm obviously exaggerating a little in the letters but nonetheless i just don't understand how this could happen in a state where there are costly pounding on you come in write a check or it's virtually impossible to lose and it helped or to have to make off  mckale so that's why this the facts of this case are so compelling so i think you're right i've seen those statements now you get in by e mail where there's a zero balance or whatever's going on you haven't done anything you need to update information that's just a common occurrence nowadays well under the series of of course we put together the evidence for the trial court as to what he do you know how can you come up thirty some odd years later and say you're a citizen deposit and i have the paper receipts here and somehow you owe me money and prove that you didn't do it which is what this case is all about so the bank in this circumstance with through the exercise of going well you know what will first of all take a look at the open accounts their research that there is nothing there they went back and took a look fortunately there existed some evidence on this is unusual especially in the today's day of mergers and accusations that you actually had employees of the first person to a bank who had been there for decades you had the bank president who was there you had a couple employees who are still there who actually have recollections of this individuals you had the fact that we put on the evidence that described auditor's there are just so many checks and balances that exist for texas financial institutions and it's basically impossible to just lose an account but don't you also have to file with the state about aband accounts and an active accounts a sofa or so is there are there are there state records that would have some of this there would be so if if in fact there was an open accounts that was inactive for a long time and those that there is no indication of was not we also introduce evidence that and how this system works well even with this bank was that we'd introduce evidence that there had been another account where a family of an individual who had thirty some odd year old c d s came in and said look we need to redeem these c d s and they looked them up and sure enough they're there so just because the certificates of deposit issued years before doesn't mean that they don't remain on the records and so if there is no activity there's no communication then those with a sheet to the state and how did you lose on the facts of all these facts are in your favor i don't know joe is there and don't we have to give some deference to that that the judge i mean so you have all of this long isn't an express written contract then here are the elements of the cause of action for money handler seat so i think that there are very distinguishable you can't there's nothing in texas law that says that you can't deal with the have an express written contract that govern subject matter of the dispute that you can't elect to ignore all of the contract law and what oral pearl evidence is not admissable all i can stuff as a relates to your written contract and saying look it's unfair that she had my money even though we have an express written contract there's nothing in texas lot of says that you can eat elect between suing on the express written contract or saying we're going to call this a to different issues i think the other so i think that the fortune productions case says that here's a general rule in texas that the have an express written contract that's what you see one you know after be a written contract that's what the that's what  r yes your honor because you have an oral agreement or a promise like for example if you have a circumstance in which someone says i might give you are you asked for someone to give you some money down and we're then going to enter in a written contract that doesn't happen in that circumstance you may have a cause of action for money him or c but so long as you have a written agreement whether it's for purchase of a car or whatever it may be texas is pretty clear of the fortune productions case that the cause of action is cause of action i never i mean this is the first time i've seen some i mean i've done texas law money and received for decades and this is the first time i've seen it in this context that i remember i'm sure in thousands of cases on the state court maybe there but it just to me is a separate concept from contract from breach of contract it is judge this it's meant for were if if you went out and bought something it began it's for me in it for ten dollars i'm supposed to pay you ten dollars i went online and entered one hundred by accident ninety dollars would be money had received you should pay me that ninety dollars money had received as you know i was trying to pay you back tan and i inadvertently paid you one hundred in the ninety's is the end just in richmond i mean that that's kind of how it's always come out this seems like a weird context that's great this first life so why did they not zero on the c d s themselves though i mean you that would certainly be to me that be the first name because if you see for breach of contract that if they had brought it i believe that the claim still be barred by limitations but we wouldn't have this issue as to money had received is simply not an available cause of action we're suing on the expressway contract does let me ask you about limitations does the limitations point depend on whether to characterize the c d s as a general or a special deposit it does not and one of the reason your honor is that that's really that general special deposit as a as a rim an argument from the discussions that we had with the court as it relates to the wrongful to saugor so the money the the c d s or are written darkness that should be a breach of contract because of action but the general rule for money had proceed anyway is the cause of action a cruise when the overpayment is made for example it's not dependent upon the characterization of some sort of a ca statute limitations runs from the date of maturity for example or it will it lets it so do let me just ask you general question if a john a general deposit wind is the cause of action for general rule for general deposit if you're tracking that like a savings account would be  a man is made and then when the the band is refused doesn't that occur in a special deposit special deposit would be different to be when at the end basically the same thing as for when the general rule of money when suing of the damages saw it related to calculation of interest not under a general deposit like this passed with savings but they calculated interest based upon the terms of the c d s in other words and six month noon two thousand and two years is too long i'm sorry you think thirty years is too i think is just a tad too long right you know when you go i go we need extraordinary circumstances if there is if there isn't a statue of limitations defense don't we need extraordinary limitations governs and there are some within limitations why should we even get to latch is that's the quote limitation part of the issue of limitations of latches is that limitations you have a specific date to work with right so in other words there is a there is an event that occurs from which you can calculate mutations latches is a more broader concept in which we have to say that it's you waited too long that there had been a change in position but the other party because he knew that you should do a sort of white's earlier and here of course we had  appeal the bank raised about five points of air most of these are technical legal arguments but separate from these is the bank's overarching argument that the trial court's decision unfairly imposes a duty on banks to keep their records indefinitely  now the bank interprets this case to mean that the plaintiff can never bring a claim for money had been received and for debts that are the subject of express agreement and we believe this interpretation is can is incorrect because first under texas case law cause of action for many had received only has two element belongs to the yeah but i mean i'm so i'm giving you my very simplistic version of money had received in our realize there's much more to it but it's just not for this situation and let me come at it this way can you point us to a case that's even close to this situation where money had received why well the fortune case i think does go to this notion because  so why doesn't the cd address this situation i've got this document i show up and i say i want my money and they go no and then they got to prove it i already showed up and got the money that why is that not very much in keeping with the terms of the cd does the contract see these terms specifically stay all you have to do is present and endorse ok that sounds like a pretty good case for you there defects than maybe a crummy would have to that but why does that convert a written document into a money had received case because the plaintiff in this case no longer house to buy just by the contractual terms he's got to do something else beyond that contract  prove somehow that's their problem i mean they've got this defense that they've got to come up with that you say is nowhere in the document nothing to do you just show up and sell all my money and they're trying to go of up and so then they would be the ones really with the money had received claim if in fact the c v is or is redeemable if you got the document and this thing about we paid you before doesn't work they'd be the one with the money had received if in fact they paid you before i don't see why that changes your cause of action that their defense may or may not be a good one why does that change your cause of action as we're required to now go beyond what is required by the contract why are you required to you are so you're not they're not going to pay this  yes that's not part of the contract that's just the failure to perform but this is based on their extra contractual policy of allowing people to cash in their c d s by filling out these forms that hold the bank harmless now we have to establish that we filled out one of those forms in order to clear out your case is very simple i got this document it says you owe me many the case becomes complicated when they start going well you did this you did that whatever whatever and if they lose on that they're the ones with the money had received claimed and they prove well look we paid you on this cd years ago and now you've come back and were covered on it because you still had the document i still don't see why that changes your fundamental cause of action the fact that they come in mean they can come in and say whatever they want i don't see why that changes your basic premise i got this document you're supposed to pay you didn't pay as judge davis said that's the bank in order to recover let me ask a different way counsel the fortune case which i'm looking at seems to me to be critical to this case so the fortune cases generally speaking when a valid express contract covers the subject matter of the parties dispute there can be no recovery under contract theory with certain exceptions not relevant here is it your position that there is some exception to that rule that applies in this case and if so could you could you articulate for me what the issue because i see here that overpayment is an exception that's been recognized by texas courts i get that because that's outside the contract rightly paid too much give me some back what exception plies here essentially found an exception because they were the contract is no longer based on what the language of the cd says we have to recover by going by doing extra we have to show that we didn't it to obtain what you would have been able let me ask you let me ask it another way is the relief that your client is claiming what you're owed under the cd yesterday plus plus interest i assume right ok so what you wrote under the see that's what you're no i don't once again because we had to go above and beyond no because that you didn't have to they have to prove cause they're the ones saying we pay because you're basically saying i should get remember what the final number is but let's say ten thousand i should get ten thousand dollars and they go where he gave me ten thousand dollars that's their answer they already complied with the contract i'm saying you breached it you saying no i did it yes no yes no that's like any br contract i was supposed to clean your house and you didn't yes i did know you did and you know whatever and then somebody has to decide did i clean it or did i not did i pay did i not all of those types of things i don't see why we're good because to me money had received as being raise arguing it as if it's this like special thing that just allows people to get money whenever they feel like it and to me it's a very narrow category to cover these kind of things like i started out with i was supposed to pay him back ten dollars for his trip to mcdonald's and instead i inadvertently entered a hundred that's the quintessential money had received it's not something like this situation and i realize i have a motto challenge all sumption so just because i think i know what texas law is after thirty years i'm open to learning more so i'm waiting for you to tell me something that makes that view of the case law wrong just what i've said before the fact that you have a lot of modification in the plain language that requires us to that requires us to do more than with a cd required in first place in order to receive payment we just have to endorse it and submit it now that's now that's not eno he even if we accept this notion that you would necessarily know that they have dishonored your cd you know you're not getting your client knows he's not getting interest for decades on the scene data supposed to be deposited in his account that doesn't have any money in it so why doesn't that constitute an extraordinary circumstance for matches purpose well i mean in this case i don't think the statute of limitations run because that was the trial court's finding  because the statute of limitations for a general accounting and i believe their testimony was also that you have to make a demand in order to obtain a cd if you don't make a demand it's just sitting there there's no possible action and it's all you don't have a cause that go back in mark i mean maybe i'm wrong or you're seeking damages they go back to the whatever you call the inception date of the cd the eighty three or eighty four is that right yes so that seems to me to be a concession  of principle was the main thing and parties stipulated to the interest rate that would have been available during all this time and there was no request to in any way separate that out or  was but going back to the detrimental good faith change of position by the bank you know the bank has argued that the delay resulted in its records being destroyed brian's going to say that's kind of a big deal i mean it's surprising they have the records they do but in this era converting written to a computer not everything gets done very well and you certainly wouldn't think eat the records from the eighty's would be something you need to really focus on maybe this is a lesson to micro fish everything or whatever the current because of a lot of that is but i mean what about that they would have kept if they'd known that mr heriot might come back they'd keep this file and then we would know for sure well i mean it's going back to them the essentially the modification of the c d s if they are going to say we want you to hold signed this document that holds us hondas then that's the only record they need to keep to defend themselves going back thirty five years i think in this case they said it was a small drawer you know that occupied one small drawer of a cabinet you know whether or not they want to destroy documents after five seven years that's up to them if they want to abide by those regulations but if they are going to come in and say well we want you to hold us harmless because of this document i think it's incumbent upon them to keep it and as court pointed out you know going forward all of these things are probably going to be done electronically you know this case her twenty five years ago where everything was done by i think what's agitating the banks about this case is in the past the less of the future because it is easier to keep stuff into the future although you have this whole original signature complexity but putting all that aside you can at least keep a copy of something electronically much more easily now but whether you are necessarily have done or should have to do that for everything going back redeem i mean under your theory i can do that nobody's denied it the limitations start to run today and the banks got to run around proving that they paid my grandfather in one nine hundred thirty three and i can say you know my grandfather was always talking about this cd that he loved so much and he would never redeem it and now i have it here i am well that's a fact it's you that the court decided in favor of the plaintiff in this case you know that's the argument they're making is that this just becomes just unmanageable if you can just do that what i just said would be my great grandfather i mean i don't well but looking at it from the other perspective of the banks i mean if there's a dispute the customer can't rely on the language and c d s and he's going to have to keep his records and essentially saying i never received this money well that's why i started with the question about this chapter seventy three in active stephanie and that is i said i get these barrage of i have some accounts that i use a lot and some that are more in the nature of savings that i don't use a lot and i get this barrage of letters and i have to call in saying yes i still love my account i don't want you to give all that money to the state in order to keep it so it just seems weird to me i'm not saying this is your client's call this is weird to me that you can have something sit around for thirty years without all these letters and whatever well i mean there was no evidence that i mean there was evidence that some were senate but with regard s you know they first pointed and said hey we have no record of any monies that cheating to the state but they also said you know pointed to the safety deposit box which they're supposed to shoot to the estate after three years and you know the bank president testified well you know we were supposed to do that but we just we just didn't do it so you can't just point to these regulations and say we've got these regulations you know so you're saying if you want to protect yourself against the great grandfather scenario follow the regulations that require you to write these letters or whatever and find things in active find them abandon so and so on because then you're covered by that is that the argument i believe that was a large part of the tr court's issues with credibility regarding the bank's testimony because you know when one person would testify the one thing and another one would say well we didn't actually do that you know we're supposed to keep records for five to seven years well where the records for five just you know five to seven years before this case well this probably got shredded we don't know and so once again banks are not infallible just saying we have regulations in place that don't allow this to happen but that's just not what  happened you know with regard to a number of issues in this case i'll make sure we're clear on this issues that there is no exception that applies trial court never found that in the simply trial court said the issue that the parties are disputing as is the defense of payment not with subject matter in other words  calculation of what would be the principal due and then again going back to the point i made earlier that they were calculating interest from the date of inception following up the court's question earlier from the inception of the certificates  deposit nine hundred eighty three in one thousand nine hundred four we can dispute the way that they made the calculations but that's what they relied upon at trial and that for the court was you owe us principal plus interest from the thousand and eight that they're claiming the interest is all the way back to right that's what they're saying you agreed to that calculation that's what i was trying to get at but we all we agreed to those that were not agreeing that you're do that but we're just simply saying that if you're going to the reason of the lay this is a real problem and you've honed in on on some issues that are very troubling to the banking industry so when you have a person at all say we did introduce evidence of some of the information about what the is a so these sayings have been given to people time and time again i don't know what the numbers are but they're very large but we did introduce evidence that there is a significant percentage maybe twenty twenty five percent of the original paper c of this is a very significant concern for all financial institutions in texas because even if you looked it up on google and try to find out the look upon the web that there are there are forms of people ask what do i do with this i found this in the  or the saved was a box or someone says well every time i cash in my cd i put the cd back in the folder we have so these things are out there and this is a very simple significance earns what we can do those which is why we're  a snapshot taken at that time of the documents of the council are still open his account was still open though barely and reflect it and it was the only checking account that he had with the first brasilia bank and it was where all sentence and yet waits until twenty fifteen when just as the of these records have been there for many years were destroyed twenty thirteen so that the town of proceed to take over the old