## In the Court o f Appeals Second Appe llate District of Texas at Fort Worth

___________________________ No. 02

- 22

- 00 170

- CV

___________________________

1 A ppella nts indicat e that U nited Healthcare Insurance Compan y was erroneou sly sue d as “ United Healthcare, Inc., d/b/a United Heal thcar e Insurance C o mpany, ” b ut Appellants do not ask t hi s cour t to revise the style of the case . For consistency, we retain the existi ng style as it was used by the trial c ourt and by th is
cou rt in a previou s interl ocutory appeal

. C f. United Healthcare o f T ex ., Inc. v. Low

- T Physic ians Serv., P.L.L.C. , No. 02

- 20

- 00033

- CV, 202 1 WL 210846, at *1 (Tex. App.

— Fort Worth Jan. 21, 2021, no pet .) (me m. op .)

. 

### U NITED 

### H EALTHCARE OF 

### T EXAS 

### , I NC 

### ., O PTUM 

### H EALTH 

### C ARE 

### S OLUTIONS 

### LLC D 

### / B 

### / A 

### O PTUM 

### H EA LTHCARE 

### S OLUTIONS 

### , I NC 

### ., U NIT ED 

### H EALTHCA RE 

### , I NC 

### ., D 

### / B 

### / A 

### U NITE D 

### H EALTHCARE 

### I NSURANCE 

### C OMPANY 

### , 1 

### U NITED 

### H EALTHCARE 

### C OMMUNITY 

### P LAN OF 

### T EX AS 

### , L. L.C., E VERCARE OF 

### T EXAS 

### , L.L.C., U NITED 

### H EALTHCARE 

### B ENEFITS OF 

### T EXAS 

### , I NC 

### ., U NITED 

### H EALTHCARE 

### S ERVICES 

### , I NC 

### ., AND 

### U NI TED 

### H EALTH 

### G ROUP 

### , I NC



### . , Appella nt s
V



### . L O W



### - T P HYSICIANS 

### S ERVI CE 

### , P.L.L.C., L OW



### - T P HYSICIANS 

### P ROFESSIONAL 

### A SSOCIATION 

### , AND 

### L OW



### - T P HYSI CIANS 

### G ROUP 

### , P.L.L.C. , Appellees2 On Appeal from the 342nd District Court Tarrant County, Texas Tria l Cour t No. 342

- 303717

- 18
Before Sudderth, C.J.; Wallach and Walker, JJ. Opinion by Chief Justice Sudderth3 OPINION
A fter Appella n t United H e a lthcar e of T exas, Inc. ( w orking with its affiliated
entities ) 2 d etermine d that it had overpaid Appellee Low

- T Physicians S ervice , P.L.L .C. ( and its affiliated entities ) 3 for health

- insurance claims , United requested a refund of more than $2 mill ion , and Lo w
- T attem pted to sett le the claim by mailing Unite d a check for approximately $24, 000

. Low

- T also mailed a letter detaili ng its s ettlement proposal to many of the United addresses listed in the parties ’ claim

- related correspondence

. When Unite d ’ s check

- p rocessing contractor autom atically cashed
Low

- T ’ s check , Low

- T argued that it was an accord and satisf action of United ’ s $ 2
mill io n clai m . T he trial court agreed w ith Low

- T, and it issued a declaratory judg ment confirming th at t he check was an accord and satis fact ion under Se ction 3.311 of
Texas ’ s codifi ed vers ion of the Uniform Commercial Code ( UCC)

. See Tex. Bus. &
Com. C ode An n. § 3.311

. I n one br oad issue , Un ited claims that (1 ) the great weight and preponde rance of the evi d ence establish es the applic abili ty o f two statut ory exce p tions to accord and

2 We ref er t o A ppellant s

— Unite d Heal thcare of Texas, Inc., Optum Health Ca re Solutions, LLC d/b/a Optum Healt hca re Solutions, Inc., Uni ted Healthcare, Inc. , d /b/a United Healthcare Insurance Company , Unit ed H ealthc are Community Plan of Texas, L.L.C., Ev e rcare of Texas, L.L.C., United He althca re Benefits of Texas, Inc., United Hea lth c are Servic es, Inc., and UnitedH ea lth Group, Inc.

— collect ively as
“ United

. ”

3 W e ref er to A ppellees

— Low

- T Physicians Service, P.L.L.C. , Low

- T Physicians Professional Associati on , a nd Low

- T Physicians Group, P .L.L.C

. — collectivel y as
“ Low

- T. ”4 satisfaction and (2) the evidence is so we ak that it would be manifestly unj us t to apply
the due diligence statute that override s th e statutory a ccord an d satisfaction exceptions

. Because the e vidence sup p o rt s appl ication of the due dil igence override
pro vision , and because t h is override render s the accord and satisfaction ex ceptio ns

un availa ble , we will affirm

. I
. Accord and Satisfaction Under the T exas UCC
Section 3.311 of the Texas UC C codi fies the co mmon law doctrine of accord

a nd satisfaction

. 4 Se e Flores v. Hansen , No. 2

- 09

- 465

- CV, 2010 WL 3618737 , at *3 n.5 (Tex. App.

— Fort Worth Sept. 16, 2010, no p et.) (mem. op.) ; Milton M. Co oke Co . v. First Bank & Tr. , 290 S.W.3d 297, 304

– 05 (Tex. App.

— Houston [1st Dist .] 2009, no pet.)

. Generally, a claim that is subject to a bona f id e dispute i s extinguishe d by a n

a ccord and satisfaction if th e person against whom the claim is asserted tender s a ch eck 5 t o the claimant , the tender ed check is in fu ll satisfacti on of the c laim , the check ( or accompanying correspondence ) bears a conspic uous stateme n t to that effect, the
tender is in good faith, and t he claimant c ashe s th e check

. See Tex. Bus. & C o m. C o de Ann

. § 3.311(a) , (b)

. E ven when these elements are establi shed, tho ug h, ther e

are t wo statutory e xceptions

— set forth in Subsection (c ) of S e ction 3.311

— that allow

4 Tex as ’ s v ersion of the U CC is codified in Title 1 of the Texas Busin ess an d Commerc e Code

. S ee T e x. Bus. & Com . Code A nn. tit. 1

.
5 This statute a pplies to negotia ble i nstruments. S e e F l ores , 2010 WL 361873 7, at *3 ; see also Tex. Bus. & Com. Code A nn. § 3.104(b) ( defining “ [i] nstrume nt ” as “ a negotiab le in strument ” )

.5 claim ants t o avoid inadvertent acceptance of a n accord a nd satisfa ction instrument

. 6
Id. § 3.311 (c) , cmt s . 5 –6. But we need not detail those two ex ceptions b ecause a claimant cannot rely on either of them if Subsection (d ) applies , i.e., “ within a

reason able time before collection of the instrument was i nitiated, the

c laimant

. . . knew that t he instrume nt was tendered in full satisfaction of the cla im

. ”
I

d. § 3.3 11 (d)

. As relevant here, f or an organization, “k nowledge

. . . is
effective

. . . from the time it woul d h ave been brought to the

. . . attention [of the
indivi dual conduct ing th e transaction] if the organization had e xercised due diligence .”
Id. § 1 .202 (f) ; see id. § 3.311 cmt. 7 . Th is due diligence override forms th e dispo sitive
is sue in United ’s appeal

. I I. Background
T he due diligence is sue turns on whet her and when t he Uni ted representative s handling Low -T’ s claim should have known t hat Low

- T w as tendering its settlement
check in full satisfaction of that claim. See id. §§ 1. 20 2 (f), 3.3 11(d). But t his question
is muddied by the nu merous mailing address es that United use d throughout the parties ’ correspondence

.

6 General ly, t he Subsection (c) excep tions al low a claimant t o avoid an accord and satisfaction if it either ( 1) cons picuously design at es a per son, o ffice, or place to receive debt

- rela ted co mmunicatio ns and settlement ins truments and demon stra t es that th e designated re cipient did not receive the s ettlement or (2) p romptly refund s the inadvertently acce pted settle ment to the person against whom t he claim is asserted

. Tex. Bus. & Com. Code Ann. § 3.311 ( c) , cmt s . 5 –6.6 A. Claim & Correspo ndence
In D ecember 2 017, Michael B erger

— an associate general counsel for United

—

s ent a l etter fro m his Minnesota office to Low

- T notifying Low

- T that an audited sample of its Un ited healt hcare claims r eveal ed 7 that United had overpaid Low

- T by approximatel y $2,359 ,9 02.33. The notice indicated that Low

- T should “ca ll the investig ator, Joni Stone at [her p hone number] to let her kn ow if you’d like to expand
the audit.” I f L ow

- T want ed to appea l the overpayment determination, it was
di rected to do so by subm i tting its written position and documentation to “ Unit ed Payment Inte gri ty [,] Att n: Recovery In vestigations ” using a mailing address in Forest Park, G eorgia.
L ater t hat month, Low

- T’s general counsel , 8 David Moraine , r esponde d by
send ing a letter to Ston e at the For est Park address and to Berger at his Minnesota
addres s . The letter ex pressed “ a desire to settle ” a nd eff ectively initiated United ’ s appeals process

. In January, Sto ne wrote back on Un ited lett erhead

— specifically,
letterhead for “ United Paymen t In tegr i t y[,] Attn: Recovery Inve stigations ”

— that

7 Un ited “ c ontended i t had identified coding ‘ e rrors ’ t otaling less than $1 0,000.00 during [a] thre e

- year period from ‘ [a] sample of 11 UnitedHealth care Employer and Individual reco rds co mprising 482 claim lines paid [,] ’

. . . . then [it]

‘ extrapolated ’ an amo unt due across a ‘ paid claims universe ’ to come up with the $2.4 millio n amount demanded. ” Uni ted Healthcare , 20 21 WL 210846, at *4

.
8 Mora ine ’ s correspondence l iste d his title as “ [g] enera l [c]o uns el ” on some communications a nd a s “ [c] hief [l] egal [o] ffic e r ” on others. A t tria l, Morai n e test ified that he was the “ chief lega l officer. ” He con firmed that , al though he has used d ifferent titl e s during his time working for Low

- T, his job duti es hav e not c hanged.7 contained an Atlanta P .O. Box address

. She acknowledged receipt of Moraine ’ s letter

— the letter that had be en mailed to her at the Forest Park address

— a n d she
directed Low

- T t o s end its appeal documentatio n to the F ores t Park address. After reviewing Low

- T’s appeal do cumenta ti on, in F ebru ary 20 18, Stone sent
what she later described as “ Unite d ’ s final fi ndings

. . . after appeal. ” 9 As before,
Stone ’ s letter was on United ’ s “ Payment Integrity ” letter head b earing the company ’ s Atlanta P.O. Box ad dress

. Stone indicated that United ’ s rev iew o f Low

- T ’ s documentation had reduced the overpayment amount to $2,031,562

. 95, a nd she asked
Lo w
- T to “issue a refund che ck payable to UnitedHealthcare and [to] mail the ch eck, along wit h a co py of t his letter and the enclo sed claim list” to a lockbo x a ddres s in
Ha peville, Georgia.
Stone then began exchang i n g e ma ils wi th Mo rain e regardin g United ’ s claim

. Unlike her letters, Stone ’ s e m ail signature b lock l isted t he M innes o ta addres s t hat had
been us ed in Berge r ’ s correspondence

. The following month , in March 20 18,
Mo raine followed up on the email e xchanges wit h a formal lett er addressed t o Stone
in “ United Payment Integrity [,] A t tn: Recovery Investigat ions ” at the Forest Par k
address

. He assert ed numerous legal ch allenges t o United ’ s overpayment determi nation

. Berger

— rather than S t o ne

— r esponded to the se lega l chall enges , and
he did so on letterhe ad that contained United ’ s M inne sota address

. I n his response ,

9 S t one later hedged by stating that the fin dings were “ not neces sarily final

. ” But she ac knowledged that s he had de sc ribe d them as “ final findings

. ”8 Berger told Low

- T t o “ con tact Joni S tone at [phone num ber ] to discuss

set tlement

. . . or me if you ha ve any questions about the co ntent of th i s letter. ”
More e mail ex changes ensu ed betw e en Stone and Moraine , with St one ’ s

s ignature blo ck consistently listing U nited ’ s Min neso ta add ress . However, at one point in the corresponde nce , St one indicate d tha t she wa s havi ng troubl e opening
Mo rai n e ’s e ncry pted e mail , and she stat e d that he “ may provide [his ] communication
via le tter to the F o rest Park, Georgia addres s u nless [ the ] communica tion doesn ’ t

co ntain PH I , in wh i ch case [he ] c[ ould] send [he r] an unen c r ypted email. ” In Ju ne 2018, the parties had a telec onfere nce to discuss settlement o ptions,

a nd both Berge r and Stone participated

. Later, at Low

- T ’ s requ est, S tone mailed
Moraine ha rd

- c opy documentation for the “ unive rse of [audited] claims

. ” The
docu mentation was ac companied by a cover l etter on United ’ s “ Payment In tegrity ”
letterhea d be aring the compa ny ’ s A t lanta P .O. Box address , and at the end of the
let ter, Sto n e ’ s si gnature bl ock listed her a s part of the “ United Payment Integrity ”
divisi on . At n o p oint in the parties ’ correspondence did United expressly s tate S tone ’ s physical location or expressly identify Stone ’ s preferred mailin g address.
B. Set tlement Off er & Che ck F in ally , in a le tter mailed August 31 , 2018, Moraine of fe red to s e ttle the di spute for $ 24,665.21

. Given United ’ s numerous mai l ing addresses , Low

- T mailed seven copies of its settlement proposal

. I t sent the settlement letter via certified mai l to9 St one at the For est Pa rk address, and it s ent th e letter via first

- class mail to ( 1 ) Berger

at the Minne so ta address, (2) United ’ s At lan ta P.O. Box address , and ( 3 ) th ree oth er United addresse s

— S a n Antonio, Richa r dson, and S a lt Lake City

— l isted in Low

- T ’ s
pr ovider agr eements
. E ac h settlement letter was accompanied by a c op y of the
settl eme nt ch eck

. The check itsel f , mean while, was mailed (with the seventh copy of
the settlem ent lette r) t o Unit ed ’ s H apevill e lo ckbox . The check b ore the notation ,

“ [f]ull and fina l p ay ment [cla im number] ” a nd was issued by “ Lo w
- T Share d Servic es, LLC ”

— a n on par ty.
C. Delivery & Due Diligence Low

- T later produced a receipt from the Uni ted St ates Postal Service (USPS) showing that t he settlemen t letters had been m ailed on Augus t 31 and t hat , at the time
of m ailing, the USPS gave an “ Expe cted Delivery D a[te ] ” of Tu esday, S eptember 4

. United admitted that it had received at lea st two of the copies of Low

- T ’ s settlement
letter

— the copy mailed to Salt Lake City and the copy mail ed to Fo rest Park

— on September 5. And USPS tracking information c onfirmed the deliv ery of Low

- T ’ s certified letter to Forest Park on S e pt e mber 5

. 10
S ix days later , o n Septem ber 11 , the Hapeville lock bo x received Low

- T ’ s check

. Berger explain ed at tr ial that the lockb ox was overseen by We lls F arg o a nd was used

10 Two d ays later, S tone

— s eemingly un aw are of the settlement offer

— emai led Mor aine to s chedule a ti me to discuss r esolution of the case. Mor a ine did not respon d.10 by U n ited t o st reamline pay ment processing

. Th e loc k b ox pers onnel follow ed their
standard procedure by (1) depos it ing Low

- T ’ s check and (2) scanning the check a nd accompanying settlemen t letter into Un ited ’ s doc ument

- tracking sy stem
. T he n , the
foll owing morning, the y notifi ed the rele vant U nited r eprese nt ative s of the check and
letter

. W hen St one r eceived this notific ation , she emailed Mo rain e and rejected the
settlement

. D. Refu n d Unit ed promptly is sued a ref und chec k , b ut rather than paying the money to
Lo w
- T, Un ited made the r efund check pa yable to the entity that had issued the

se ttlemen t check : Low

- T S hared Services

. 11 At tr ial, Mo raine testified that Low

- T
Sha red Services wa s the “ paymaster ” fo r Low

- T ’ s offices ; he equated the paymaster entity ’ s c he ck w ith a c ashier ’ s check

. 12
E. Lawsuit & Tria l Low

- T then file d suit against United seeking (among othe r things) a d eclarato ry judgment that the settle ment check was an accord an d sati s f action of Un ited ’ s cla im.
United countercla imed for (among other things) d ec lara tory j u dgmen t and breach of

11 Becaus e United iss ued the refund ch eck to th e non party th at had issued the settlement check rather than t o the person against whom the claim was ass erted , Low

T argu ed that United did not qualify for the Subsectio n (c)( 2) exception to a ccord and
s atisfacti on. See T ex. B us. & Com . Cod e Ann. § 3.311(c)(2). The S u bsec tion (d) due diligence override render s the Subsec tion (c) exception s unavailable, though, so w e need not address th is issue to resolve the ap peal. Id. § 3. 311(d); T ex. R. A pp. P. 47.1

.

12 Low

- T directed Low

- T Sh are d Service s to reject United ’ s re fund c heck

.11 contract
. L o w
- T responded with accord and satisfaction again, n o w as a n affirmative
defense. The accord and sa t isfaction issue was t ried to the bench

. Cf. U nited
Heal thcare , 202 1 WL 210846, at * 9

– 10 (rejecti ng argument t h at accord and sati sfaction
i ssue was subject to ar bitration). Only three witnesses testified : Mo ra ine, S t one, and Berge r . Stone and Berger
claimed th at they did no t know a bo ut th e settlem ent o ffer u nti l after the check had
been de p o sited

. They explained that t he Ha pevi lle lockbox personnel automatically

c as hed checks and tha t although t h e l o c k b o x had procedures t o n otify t he relevan t
Unite d represe ntative of a c hec k , the n otification occu rred th e f ollowi n g m orning

. Accordingly , Sto ne in dica ted th at she was not aware o f the s ettlemen t letter or
check unt il she received the notification f rom the lockb ox personnel on September
12

. S he officed in Mi n ne sota

— the same office address as Berger

— a n d not in For est Park

. Stone insisted that the Forest Par k address w as only appro priate for ap peal

related documents , not settlement letter s o r gene ral correspondence

. Berger testified that the Forest Par k a dd re ss was a regional mail office

re sponsible f or “ intaki ng mail ” rela ted to specific job functions, inc luding overpayment appeals

. He confirm ed that , before the se ttl ement, the Forest Park mail
center had ro uted M or aine ’ s letters to Sto ne. But like S t one, he insisted that this was

not the proper add ress to us e to correspond with her

. As for Berger ’ s copy of the set tlemen t l etter , Berger testified that he h ad
recei ved his own copy of the lette r but not until after the settlement check had been12 cashed. When Low

- T impeached Berger w ith his deposition —i n which he had
testified that he did not re call recei vin g h is own copy of the settl ement letter a nd that if he had received it, he “pro bably ” would not have kept it “since [he] saw that Ms.
S tone w as also addressed on the letter ”— Berge r explained that , aft er the dep osition,
he had disc overed a copy of the settlement letter in his f i les. He stated that he did not
know the date on which he had received the l etter , b ut he knew that it must have been
after the lockbox notification on September 12 because “ if [ he] had re ceiv ed the letter prior to September 12, [he] would have acted o n it .”
No ne of th e witnesses d escribe d the procedures for routing i nformation from
the Fo rest Park mail office to the appro priate recipient

. No r did th e y explain what had hap pened t o the othe r three settlement letters that Low- T had m ailed to Uni ted at its Atlanta P.O. Box address and its Richardson and San Antonio address es . F. Judgment & Findings The trial court ent ered judgment for Low -T. 13 I n i ts acc om panying ( and

commen dably tho r ough ) findin gs of fact and conc lusions of la w, 14 it found that

13 Although the accord and satisfaction judgment was interlocutory w hen it w as entered, the partie s subsequently nonsuited their remaining claims, making the judgment final and appeal ab le.

14 Unit ed e mphasi zes that the trial court adopted “ verbatim, the finding s and conclusions tendered by Lo w- T. ” Bu t “ the Texas Supreme court has not adopted differing standards of review for findings of fact adopted verb atim f rom a prevailing party ’ s prop osed findings of fact versu s findings of fac t not adopted verbatim or modified by the tri al court .” Norstrud v. Cicur , No. 02

- 14

- 00364

- CV, 2015 WL 4 878716, at *4 (Tex. App.

— Fort Worth Aug. 13, 2015, no pet.) (mem. op.)

.13 United had not prove d that it qualified for eithe r of the two Subsection (c) exception s to accord and sat isfaction , 15 but that even if United had so proved , th e Subsectio n (d)
du e dilig ence override applied because “ D ef endant s did not implement or, if they had
th em, did not foll o w, such routines or procedures for the settle ment letter and copy
of the settlement check addressed to Stone that was r eceived at the Forest Park
addres s on Sept ember 5, 2018 ” ; and “ D efendants rec eived Plain tiffs ’ letter on

15 Spec i fically, the trial court fou nd that : A reaso nable time before th e Plaint iffs ’ tender , Defend ants sent a conspicuous state ment
. . . designat [ing] Joan Stone as a ‘ person ’ resp o nsible for negotiat ing a s ettlement wi th Plaintiffs, and designat [ing] the Fo res t Park addres s as the ‘ off ice ’ and ‘ place ’ f or Plaintiffs to sen d
commun ications to Stone an d Defendants concerning the O verpayment Demand

. [ U nited ] likewi se clearly d esignat ed the Hapeville address as
an ‘ off ice ’ or ‘ plac e ’ to receive instruments tende red as full satisfaction of the dispu ted debt

.

. . . Plaintiffs del ivered the settlement of fer and a copy o f the
c heck to the p ersons, offices, and places designated by Defendants

. . . and Defendants receiv ed th ose documents

. . . .

. . . .

. . . Because D efendants had previou s ly sent Plaintif fs a statem ent [ desig nati ng a recipient ] in compl iance with [Subsection (c ) ( 1)] , Defendants h ad no right under [Subsection (c) (2)] to a void the ac co rd
a nd satisfaction by tenderin g repa ymen t
. . . .

. . . Defendants ’ attempt to tender rep ayment u nder [S ubsection (c) (2) ] was also ineffective because the attempted re pay ment was not tendered to ‘ the person against whom the claim was ass er ted ’ b ut rather, to ‘ Low

- T Sh ared Services, L. L.C., ’ agai nst whom no Defendant has asserted a claim for re payment
. [Internal citations omitted .]14 September 5, 2018, ” and they “ e i ther knew on S eptember 5, 2018 [,] that Plaintiffs were tendering

. . . the settlement check in full satisfaction of the [ c laim] , or had
Defendants exercised due d i ligence, that fact w o uld have be en brought to th e attention of Berger or Stone, the individua l s co nducting the transaction, before
Defendants

. . . negotiated the settlement check , ” which occurred “ six days
la ter
. . . on September 1 1, 2018

. ”
I I I
. Discu ssion
U nited do es no t dispute that Low

- T e s tablished the basic elements of st atutory

a ccord and satisfaction under the Texas UCC

. 16 See Tex. Bus. & Com. Co de § 3.311(a), (b ). United argue s, though , t ha t the trial court erre d by ( 1 ) fai ling to apply
at lea st one of the tw o st at utory exception s to accord and satisfaction despite the great

w eight and prepo nderance of the eviden c e supporting th e ex ceptions and ( 2 ) applying

16 United ’ s brief repeated ly hints at challenges to th e trial court ’ s interpretation of S e ction 3. 3 11 , b ut it does not raise or brief those hints as se parate issues

. For example , United alle ges that there is a “ meeti ng of th e minds ” requirement for
comm on law accord and satisfacti on, but it concedes that “ [t]he Texas UCC controls the issues addressed at tri al, ” an d it does n ot assert that the “ meeting of the minds ” req uirem ent should have been applied as an element of statuto ry accord and satisfaction un der the T exas UCC

. E lsewher e in its brief, United a rgues that , if Low

T Shared S ervices did not qualify as “ the person against whom a claim was asserted ” for purposes o f re ceiving United ’ s settlement refund, then the s ettlemen t check i ssued by Low

- T Share d Services could not have sa tisfied the elements of accord and satisfaction in the first place

. But aga in, United does not assert that the elements of accord and sati sfaction w ere not s ati sfied ; in deed, it a rgues that Low

- T Sh ared Service s was eli gible to both issue the settlement c heck and receive the refund check on behalf of L ow

- T.15 the S ubsection (d) d ue dilig enc e o verride despite weak, factually insuffici ent evidence

. The latter issue is d ispositive.
A
. Standard of Revie w When reviewing the factual sufficien cy of a trial court ’ s factfind ings , 17 we must

cons ider all the pertinent re cord e vidence to determine if the c hallenged fa ct finding is so contrary to the great we ight and preponderance of the evidence

— or, put di ffer entl y, if the credible evidence supporting the fact finding is so weak

— that the
fact fi nding must be set aside and a n ew t ri al ordered. Dow Chem. Co. v . Francis , 46 S.W.3d 237, 242 (Tex. 2001); Po ol v. Fo rd Motor Co. , 715 S.W. 2d 629 , 635 (Tex. 1986) (o p. on reh ’g)

. The factfinder is the sole judge of the wit nesses’ credibility and the weight to be given to their testimo ny ; w e can not subs titute its judgment with o ur own . Golden Eagle Archery, Inc. v. Ja ck son , 1 16 S.W.3d 757, 7 61 (Tex. 2003)

. A trial court ’s c oncl usion s of la w , though, are reviewe d de novo

. Hegar v. Am.
Multi

- Cinema, Inc. , 605 S.W.3d 35, 40 (Tex. 2020 ) ; Supe r Ventures, Inc. v. Chaudhry , 501
S.W.3d 121, 127 (Tex. Ap p.

— Fort Worth 2 016, n o pet.)

. This includes matters of
statutory constru ction

. Hegar , 605 S.W.3d at 40

. So , t o the extent that United challenges the trial court ’ s interpretation of the due dilige nce override or another

17 A n appel lant may challenge a trial court ’ s fact findings for evidentiary sufficiency j ust as it may ch a lleng e a ju ry ’ s answers for evid entiary sufficienc y. Catalina v. Bl a sdel , 881 S.W.2d 295, 29 7 (T e x. 1994)

.16 provision of the Texas UCC , 18 the trial c ourt’s i nterpret a tion is not b inding on us, but
we wi ll not reverse t he judgment based on an incorrect conclusion of law as long as
the controlli ng f actfind i ngs support the judgment o n a corr ect legal theory. Super Ventures, Inc. , 501 S.W.3d at 127; Wise Elec. Co op., Inc

. v. Am. Hat Co. , 476 S .W .3d 671, 679 (Tex. App.

— Fort Worth 2015, no pet.)

. A uniform act such as the UCC “ should be construed to promote uniformity with other jurisdi ct ions .” 1/2 Price Checks Cas hed v. United Auto. Ins. Co. , 344 S.W.3d 378, 391 (Tex. 201 1) ; see Tex. Gov ’ t Code Ann. § 311.028 (“ A uniform ac t included in
a code shall be construed to effect its general purpose to make uniform the law of
those states that e nact i t. ”) . “ [I ] n determining and applying the Texas version of the
Uniform Co mmercial Code, we may consider and apply pertinent decisions from other jurisdiction s.” Toshiba Mach. Co., Am. v. SPM Flow Control, Inc. , 180 S.W.3d 761,
773 n.2 (Tex. App. —F or t Wort h 2005, pet. granted) (op. on reh ’g)

. B
. S ubsection (d ) Due Diligence Ov erride Ev en a ssuming

— as Un it ed claims

— that the great weight and preponderance
of the evidenc e demonstra ted United ’ s entitlement to one of the two statutory

18 W ith two except io ns— two nondispositive issu es we need not address

— the substanc e of United ’ s a rguments take s issue with th e tr ia l court ’ s factfind ings rather than with its interpre tations of the UCC

. And to the exten t that the trial cou rt’ s factfindings are incorrectly design ated as conclusions of l aw or vice versa , the trial court state d that “ th e incorr ect de signation shall be disregard ed and the specified finding and/or conclusi on of l a w shal l be deemed to have bee n correctly designated herein. ” We there fo re c onstrue Un ited ’ s argument s as factual sufficiency challenges

.17 exceptions to accord and sa tisfaction , the evidence is still factu al ly sufficient to
support entry o f a judgm en t for Low- T based on the trial court ’s Su bsection (d) finding s . As previously noted , S ubsec tion (d) render s the two statutory exceptions

unav ailabl e “ if the person a ga inst whom th e claim is asserted proves that w ithin a
reasonable time before c ol lection o f the instrum e nt was initia ted, the claimant, or an
age nt of the claimant having direct resp onsi bility with respect to the disputed obligation , knew that the instrume nt was tendere d in full satisfaction of the cla im .”
Tex. Bus. & Com. Code Ann. § 3.311( d)

. Although t h e Texa s UCC defines

“ [k] nowledge” a s “ actual knowledge, ” see id. § 1.202(b), i t further clarifies that , for a n organization , “k nowledge . . . i s effective for a particular t ransaction fro m the time i t is brought to the attention of the ind i vi dual c onducting tha t transaction and, in any

even t, from the time it would have been brought to the in dividual ’ s attention if the organiz ation had exercised due dilig ence ,” i d. § 1.202 (f); see id. § 3.103(d) (no ting that
the general definition s in Chapte r 1 app ly to Chapter 3), § 3.311 cmt. 7 (citing
definition of knowledge pr eviously codif ied at Se ction 1. 201 and currently codified at
Section 1.202 ). The Firs t C i rcu i t has analogized this due diligence standard to t he negligence standard

— the o rg anization h as knowledge i f its point of cont act knew or
shou ld have kno wn. Cf. Jelmoli Holding, Inc. v. Raymond James Fi n. Servs. , Inc. , 4 70 F.3d 14, 20 (1st Cir. 2006) ( quotin g due d iligence standard in Massachusetts UCC a nd noting that it “ makes clear t hat it is w hat [the claimant ’s representative ] kn ew that18 c en trally matters and that other information e lsewhere in the co m pany files is im puted

to [the claimant ’s representative ] only if it was negligent of the company not t o bring
it to his a ttention ”).
H ere, Low- T all b u t concedes th a t the United represen tative s involved in Low

T ’s case

— Stone and Ber ger —h ad no subjective awareness of the s ettleme nt proposal
be fore the check was c ashe d. The que stion is whether they sho uld hav e kn o wn, i.e.,

w hether the settlement o ffer “ would ha ve [already] been brought to [their] attention if the organization had exer c is ed due diligence. ” 19 Tex. Bus. & Com. C ode An n. § 1.202 (f ).
The Texas UCC p rovides t hat a n organization “ exercises d ue diligenc e if it
maintains reasonable routines f or communi cating s ignificant information to the person conducting t he transaction and ther e is reasonable compliance with the

r outine s.” Id. However, du e dili gence does no t “ require an individual acting f or the
orga nization to communicate information unless t he co mmunicat ion is part of the
individual ’ s regular duties or the individual has rea son to know of the transaction and
th at the tr a nsaction would be m ater ially af fected b y the information

. ” Id. Base d on
these statutory descriptions of due dilig ence , Uni ted a rgues th at there was factually

19 United ’s brief re peate dly emphasizes that “actual know ledge ” is re quired under Subsection (d) , and it state s that “[ t] he text of Section 3.311(d ) refers to

‘ knowledge ’ and mentions nothi ng abo ut due diligence or r outines for communicating information .” But United conced es th at the plain language of the Texas UCC defines organizatio nal “ knowledge” with referenc e to the due diligence inquiry.19 insufficient evidence to impute knowledge to Ston e or Berger because there was no

test imony regarding (1) any routines for forwa rding communicati o ns received at
Unit ed ’s m ailin g addresse s ( other than the lockbox address ) t o t he appro priate United
represent ative s or ( 2) United ’ s compliance or noncomp lianc e with those routines

. 20
It is true that neither party prese nted evidence regarding the det ails of Uni ted ’ s procedures for rout ing information received at a non

- lo ckbox mailing address

. But
while the Texas UCC prov ides that an organization “ exercises due di ligence if it

ma i ntains reasonable routines . . . a nd ther e is reasonable compliance with the
routines ,” th e statute does not state that thi s is the only method of proving due diligen ce. I d. A lack of due diligence —o r more ac cura tely , a finding t h at the
orga nization ’s point o f contact would have known had the organi z ation exercised due diligence

— can be supported by ot her evidence. And it is in this case.
1. Berg er ’ s Letter T he tria l court found that Berger was one of the “i ndividual [s] c on ducting th [ e]

tran saction ” wi th “ di r ect responsibility with respec t to the di s puted obligation .” T ex. Bus. & Com. Code Ann. § § 1.202 ( f) , 3.311(d)

. In other words, wha t he kn ew or

20 Unit ed also a lleges that the trial court ’ s Subsection (d) fi nding s are “ legally unsupported ” because “ th e commentary to the T e xas UCC expressly states that tenderi ng a check to a lockbox does not impute knowledge to a claim ant .” C f. Te x. Bus . & Com. Code Ann. § 3.311 cm t. 7

. But the tr ial court ’ s fi nding s and conclusions do not ind icate that its Subsection (d) findings were based on the lockbo x personnel ’ s knowledge ; rather, the Subsection (d) findings were based o n th e kn owledge that Stone and B e rge r would h ave had if United had exerci sed due dilige nce.20 should have know n could be used to satisfy the due diligence standard. S ee i d. §§ 1.202(f), 3 .311 ( d).
And t he re was evidence that Be rger was mailed hi s own copy of the sett lement
le t ter at his co rre ct address in Minnesota , that the letter ha d an e stimated delivery date
of S e ptember 4 , th at two other settlement let ters mailed at the same time wer e successfu lly de l ivere d t o their destination s on September 5 , and that Berger ’ s letter
ul timately made its way into his files

. Berger te stified that he di scovered the letter in
his files and di d not know the date on which he had received i t
. Although he
surmis ed that “[i]t would have been a fter S e ptember 1 2th ,” t he trial court , as the factfinder, had the discretion to bel ieve or di s believe all or any of Be rger ’ s testimony.
Se e Golden Eagle A rch ery, In c. , 1 16 S.W.3d at 761 , 774 –75 (re iterating that “t h e j ury [

i.e., factfinder] is the sole judge of the credibility of witnesses and the weight to be given
to thei r testimony” and that “ the jury ‘ could believe a ll or any pa rt of the t estimony of
any witness and disregard al l or any part of the testimony of a ny witness ’ ” (quoting Pilkington v. Kornell , 822 S.W.2d 223, 230 (Tex. App.

— Dallas 1991, writ denied) ).
Exerc ising this discretion, the factfinder could have doubted Ber ger ’s tri al conjecture
and concluded

— based on (1) Berg er ’s deposition testimony that h e did not recall receiving the letter and would “ [p]roba bly not ” have kept it , (2) his ultimate discovery
of the settlement letter in his files , and (3) th e U SPS evidence

— that Berger , an

“ individual cond ucting th [e] transact ion ,” had received his copy of the settlem ent
l etteru p to six days before the c heck was c ashed

. Cf. Milton M. Cooke Co. , 290 S.W. 3d21 at 310

– 11 (a pplying UCC ’s due diligence definition in ac cord an d satisfaction c ase and holding that clai mant ban k had no knowled ge under Subsection (d) where trial court
found tha t t he deb to r “ delivered the Full Satisf action Checks to [the claimant bank ’s]
tellers ” a nd not to anyone “ with knowledge of the forge ry disp ute ” or the aut h ority t o accept a se ttlem ent check)

. S ix days ’ n otice provided an ample oppo rt unity for United to intervene before
Low-T’ s settlement check was received, mu ch less ca s hed

. Tex. Bus. & Com. Code
Ann. § 1.205 (a) (“ Whether a ti me for taking an action requ i red by [the UCC] is

reaso nable depends on the n atu re, purpose, and circumstanc es of the action. ”). Indeed, as Low

- T points out, the Seventh Circuit has held that even t hree days ’ notice
of a settlement instru ment qu alifie s as “ a rea sonable time ” under th e accord and
satisfaction s tatute in I llinois ’ s version of the UCC. IFC Cred it Corp. v. Bulk Petroleum Corp. , 403 F.3d 869, 873 (7th Cir. 2005) (holding case “ f[ e ll ] squarel y within ”
Sub section (d) when d esign ated po int of contact re ceived copy of letter an d check
three d a ys before check was cashed)

. The record thus supports the tr ial court ’ s finding th at s ix da ys was “a reasonable tim e before collection of the instrument

. ”
T ex . Bus. & Com. Code Ann. § 3.311(d)

. Putting these pi ec es together, the r e was factually sufficient evidence that ,

“ within a reas onable time before col lectio n of the instrum e nt ,” a copy of L ow -T’ s settlement letter and check

— making p lain “ that the instrume nt was tender e d in full
satisfaction of the claim ,” id.

— was delivered to Berge r’ s Minnesota of fice and “ would22 have been bro ught to [his] attention if the organization had exercised due diligence. ”
Id. § 1.202 ( f) ; see id. § 3.31 1 cmt. 7.
U nited contends, though, that Berge r’s i mputed knowledge is ina ppo site
b ecause th e great weigh t and prepondera nce of the evidence showed th at Stone was

t he only “indiv idual conducting th[e] transactio n.” 21 But even if this were the case, Berger’s imputed awareness of the settlement still supports a findi ng that St on e should ha ve known of the settle m ent prior to the check ’ s c ashing

. A s the a s sociate general counsel involved in Low T ’ s claim , B erger “ ha [ d]

reason to know o f the [L ow

- T] transac t ion and that the transact ion would be materially af fec ted by the [settleme nt] informa tion .” I d. § 1.20 2(f)

. He sent Low

- T
the initial notification of United ’ s overp ayment determination, he re spon ded to Low

T’ s legal arguments in a M a y 2 018 lett er , he joined a settl ement

- focused conference

21 United argues that , because it allege dly desig n ated Stone as the p oint of cont act for claim

- related communications in co mplian ce with Subsection (c)( 1), Stone
was the only “indivi dual conducting th [e] transac t ion ” whose knowledge could sa tisfy Subsection ( d). See Tex. Bus. & Com. Code Ann. §§ 1.202(f) , 3.311( c), (d). But C omment 7 to Section 3.311 re jects this interpretation of the “ individual conducting the transaction” : [ T] he “ indivi dual conducti ng that tr ansaction” is an employee or ot her agent of the organization having direc t responsibility with respect to the dispute. For example, if the che ck and co mmunication are received by a collection agency actin g for the claimant to collec t the dispute d claim,
o btaining p ayment of the check wi ll result in an accord and s atisfaction
e ven if the claimant gave notice, pursuant to subsection (c)(1), that f ull satis faction checks be sent to some other office

. Id. § 3.311 cmt. 7 (emphasi s adde d).23 w

ith Low

- T, and he received or was copie d on much of the correspondence between
St one and Moraine

. As someone who knew of the transact ion and the material e ffe ct of the settlement letter, d ue dilige nce required him to communicate the settlement
letter to Stone

. Id. (“ Due diligence does not require an individual acting for th e

or ganizat ion to communicate inf ormation unless

. . . the indiv idual has rea son to know
of the transaction a nd that the trans action would be materially affected by the
information. ” (emphasis added) ). And the trial court coul d hav e conclu de d that, if
Ber ger had exe rcised due diligence a nd communicated the material settlement
info rmat ion to Ston e , then the matter wo uld have been brought to Stone ’s attention six days before the check was received, i.e., “ within a reasonable time b efo re collection of the i ns trum e nt was initia ted .” Id. § 3.311(d)

. Either wa y, Be rger ’ s settleme nt letter satisfied the due diligence provision i n Subsection (d)

. Id. §§ 1.202(f), 3.311(d).
2. Forest Park Letter But Berger ’ s settlement letter did not sta nd alone. There was al so evidence that
the Fo r es t Park of fice ’s “ regular duties ” included communic ating correspondence to
St one , and that had they do ne so, St one would have known of the settlement proposal
be fore Low -T’s check was cashed. See id. § 1.202 (f ). Berger descr ibed t he For est Pa rk addr e ss as a “ regional mail office[] ” responsible for “ int aking mai l” and “r out [ing] [ it

] to the appropriat e location .” And although United insists that the Forest Park address was only intended for appeal

-24 rela ted do c umentation and “ was not a proper address to use to c ommun icate with
Ston e,” the record supports a f inding that United directed Low -T to send correspondence to t he Forest Park address —b oth b efore and after its review of Low

T’s appeal documentati on had conc luded

— in a man ner that implicitly associate d th at addres s with S tone
. In United ’ s initial letter notifying Low -T of its overpayment determination , it
identified Stone a s the “ investigator ,” and j ust a few l ines lat er, th e lett er tol d Low

- T
that it could di sp ute the overpay ment c laim b y mailin g document ation to “ United Payment Integrity [,] A ttn: Recovery Investigations ” using the Forest Park address

. Logic dictates that “ Investigations ” likely involve “i nvesti gators ” such as the one
United had identified : Stone

. Then, s e veral of Stone ’ s follow

- up let ters to Lo w-T indica ted tha t she worked
in t he “ United Paymen t Integrity ” division

— seemingly the s ame division a s that
referenced in the Forest Park addres s. 22 And St one herself repeatedly tol d Low- T to
send m ail ing s to the Forest P ark address

. After doin g so in on e letter —i nstructing
Low- T to submi t “ appeal documentation

. . . to the [Forest Park] U nited Payment Integrity address ”— St on e sta ted , “ [w] e look fo rward to receipt of [you r] appeal
documen tation ,” implying by the royal “ we ” that she would be amo n g th ose who

22 We not e , however , that the re w ere two different addres ses attributed to

“ United Payment I ntegrity ” in United ’ s letters or on its letterhead : the Forest Park addres s and the Atlanta P.O. Bo x a ddr ess .25 woul d receive the documents sen t to the Forest Park address

. She later indicated that
she was , as she told Low

- T t hat “[ w]e reviewed the documentation submitted ” and
that th e overpayment amount ha d been adjusted

. Stone used the Forest Park add ress again in Ma y 2 018 , even though United had already concluded its review of Low -T’s appeal documentation . W h en Sto ne could

not open an e nc ry pted email from Moraine, sh e asked him to “p rov ide [his]

co mmunic ation via letter to the Forest Park address ,” i mpl ying tha t she could receive
communications at th at address as an alternative to email

. Plus, b oth S t one and Berg er confirmed that , prior t o the settlem en t offer, the
letters Low- T had mailed to the F o rest P ark address were ultima tely received by
Stone

. Based on t his ev idence, t he t rial c our t could h ave conclu de d that the Fores t Park “ reg io nal m ail office[] ”—a mail office responsible for “ intaking ” mail , an office that had successfully routed Low -T’ s letters to Stone in the past , a nd a n address that
Stone had repea t edly told Low

- T to use f or claim

- rel ated correspondence

— had b een held out by United as a mailing address for Stone and could have been expected to
communicate correspondence to Stone as p art of its “reg ula r [job ] dutie s. ” Id. ; c f.
Bank of Salt Lake v. Corp. of Pre sident of Church of Jesus Christ of Latt er

- Day Saints , 534 P.2d 887, 8 90

– 91 (Ut ah 1975) (holding that church did not h ave n otice under due diligence
definition in Utah ’s codified UCC where cleri cal ch urch employe e received actual26 notice but ha d no duty to communicate informati on and no knowledge of the underlying t ransaction ). It is undisputed that the Fore st P ark regional mail office received Low T’ s settl ement letter on September 5

. It is undisputed that this letter wa s addre ssed to
Ston e specifically

. C f. Old Kent Bank

- Se. v. City of Detroit , 44 4 N.W.2d 162, 166 ( M ich. Ct. App. 1989) (a pplying Michiga n UCC ’s due diligence definition and rejecting city ’s
argument that it ha d no notice w here city claimed lette r was sent to wro ng offi ce bu t certified lette r was “directed to the T reasurer ’s Departmen t” and it was reasonable to

as sum e that “ the city ’ s agent would send it to the Treasurer ’ s Departme nt ” when it
arrived at the city office) ; F.D .I.C. v. Heaton , No. 2: 13

- CV

- 219 TS, 2014 WL 27 77601 , at *6 (D. Utah June 19, 2014) (mem. op. and order) (holding Ut ah UCC ’s version of
Subsection (d) inapplicable whe n debt or did no t address his settlem ent offer t o his point of contact but instead mailed his offer to a departme nt that gathered and

s ca nned debtors ’ fina ncial informati on ). And i t is undisputed that, whe n the
settlement c heck was cashe d six days later , the Forest Park office still had not
transmitted the settlement lette r to St one or no ti fie d h er of its ex istence

. What ever procedures we re or were not in place at For est Park, the evid enc e supports the trial

court ’ s finding that the Forest Park offic e— which , again, had been held out by United as having the responsi bility to communicate informa tion t o Stone

— inexplica bly f ai led

to communicat e t he settlemen t l etter within six days of the lett er ’s receipt

.27 Th is unexplained delay is even more striking in light of the p rocedures in p lace

to quickly convey information re ceived at a nother United addr ess : the Hapevill e loc kbox. Berger testified tha t the “ Wells Fa rgo staff will sweep the lockbox on a daily
basis ,” they “i mage any . . . checks and any documentation associated with t he check ,”
and then they “ enter [the image s] int o [United ’s ] document t racking systems .” Th e lockbox personnel were a ble to communicate the scanned check and documentat ion
to the relevant Uni ted representa tive “ the next day .” T he lockbo x procedures th us dem onstrate Un ite d’ s a bility to quickly communicate inf ormation within the

o rganization 23 and U nited ’s maintenance of a “do cu ment trackin g system [] .” If a
lock box dedicated to cashing checks

— not “ rout[ing] ” m ail

— could log ma ilings in to
Un ite d’s document tracking system and commun ic ate those mail ings to the
appro priate United representative the next day , then absent ev iden ce to the cont rary , a United mail ing center repeatedly referenced by Stone and dedicated to the task of
“i ntakin g” and “rout [ing] ” mail c ould have be en reasonably e xpected to communicat e certified mail ings wit hin six days of rece ivi n g th em . The Forest Par k mail center ’ s

un exp lained si x- day delay supports a n inference that St one “w ould h ave [had the
settlement letter ] bro ught t o [her] attenti on if the organization ha d exercised due diligence. ” Tex. Bus. & Com. Code Ann. § 1.202 ( f).

23 Indeed, it demonst rates United ’ s ability to qu ick ly communicate informati on even when that inform ation is c oming f rom a contr actor such as Wells Fargo

.28 I n sum, the trial cour t was not manifest ly unj ust in conclu ding that , had United

e xercis ed du e dili gence, Low -T’s tendering of its check in full s atisfaction of United ’s
claim would have been brought to the at tent ion of the individ ual ( or individu al s)

co nducting and directly re sponsible for the transaction multiple days before the check

was r eceived or cas hed

. See id. §§ 1.202(f), 3.311(d)

. We overrule U nited ’ s challenge
to the due diligence overr ide

. 24
And this iss ue is disposit ive ; b ecause the d ue di ligence override applies , the
Subsec tion ( c) exceptions are unavailable as a matter of law

. Id. § 3. 311 (c), (d), c mt. 7 (“ Subsection (c) is subject to subsection (d). ”).
IV. C onclusion
H aving overruled United ’ s di spositive issue, w e affirm the trial cour t’ s judgment. Tex. R. App. P. 43.2(a)

. /s/ Bonnie Sudderth
Bo nnie Sudd erth Chief Justice D elivered: January 5, 2023

24 United also argue s tha t the trial court ’ s judgment will h ave a “ chilling effect on large corporations that process thousands of ch eck s a day .” It is unclear if Unite d in tends to raise th is as a separate appellate iss ue . Reg ardless, our role is to interpret and apply the law

— not to rewrite it or to second

- guess the legislature ’s balance of competing pol icies

. See Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC , 591 S.W.3d 127 , 133 (Tex. 2019 ) ( “It is not the Court ’s t ask to ch oose between competing policies address ed by legislativ e drafting. We apply the mandates in the statute as written. ” (quoting In re Te x. Dep ’t of Fam. & Protective Servs. , 210 S.W.3d 609, 614 (Tex. 2006) (o p. on reh ’g) ( internal citations omitte d) )).