NUMBER 13-10-00282-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

KENNETH MICHAEL KOONCE, Appellant,

v.

FIRST VICTORIA NATIONAL BANK, Appellee.

 

On appeal from the 36th District Court 

of San Patricio County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza 

Memorandum Opinion by Justice Rodriguez

This appeal arises out of a probate dispute over funds held by appellee First 

Victoria National Bank in a supposed payable-on-death account. Upon the death of the 

account holder, First Victoria distributed those funds to appellant Kenneth Michael 

Koonce, the named beneficiary, but the probate court later ruled that the funds were 

estate assets and judgment was entered against appellant for the amount of the 
2

distributed funds. Appellant sued First Victoria for breach of contract, negligence, 

violations of the Texas Deceptive Trade Practices Act (DTPA), and breach of its duty of 

"indemnity" and to protect. The trial court granted summary judgment in favor of First 

Victoria on all claims. By five issues on appeal, appellant challenges each ground on 

which First Victoria moved for summary judgment. We affirm, in part, and reverse and 

remand, in part.

I. Background

The following facts are undisputed. Robert Barton Koonce, appellant's father, 

opened a certificate of deposit (CD) account at the Taft, Texas branch of First Victoria in 

the amount of $75,000. Approximately two years after opening the account, Robert 

instructed First Victoria to change the CD to a payable-on-death (POD) account and to 

designate appellant as the beneficiary. To make the change, First Victoria had Robert 

sign a "File Maintenance Form" that included this sole notation: "Add Beneficiary: 

Kenneth B. Koonce."1Two years later, Robert died. Appellant took Robert's death 

certificate to First Victoria, and First Victoria distributed the funds of the 

CD—$75,259.35—to appellant. Appellant's sister later sued him and First Victoria, 

claiming that the funds distributed to appellant were an asset of Robert's estate. First 

Victoria settled with appellant's sister and was dismissed from the suit. The court 

granted summary judgment in favor of the sister, determining that the CD funds were an 

estate asset, and entered judgment against appellant in the amount of $75,259.35 plus 

attorney's fees.

 

1

The parties dispute whether the File Maintenance Form effectuated the requested POD 

designation.
3

Appellant sued First Victoria in connection with that judgment, and it is that lawsuit 

that underlies this appeal. In his petition, appellant alleged that First Victoria: (1) 

breached its contract with Robert, and with appellant as third-party beneficiary, by failing 

to change the CD to a POD account; (2) was negligent in failing to change the account 

designation as directed by Robert; (3) violated the DTPA by breaching its warranty that 

the account designation would be changed as directed by Robert; and (4) breached its 

duty of "indemnity" and to protect Robert and appellant when it entered into mediation 

with appellant's sister in the earlier litigation and settled without ensuring that appellant 

was protected. Appellant asked for damages in the amount of the judgment obtained by 

his sister in the earlier lawsuit, damages for mental anguish and injury to his reputation, 

and for attorneys' fees. 

First Victoria filed a hybrid traditional and no-evidence motion for summary 

judgment. See TEX. R. CIV. P. 166a(c), (i). In its traditional motion, First Victoria argued 

that there are no fact issues, as follows: Robert's CD was changed to a POD account 

because the form signed by Robert complied with the probate code's requirements as a 

matter of law2; if the form was insufficient to create a POD account, no agreement 

involving appellant was ever entered into by First Victoria and appellant therefore has no 

standing to bring a third-party beneficiary contract claim; First Victoria owed no 

common-law negligence duty to appellant in connection with its transaction with Robert; 

First Victoria owed no duty to appellant to protect him in the earlier litigation with his sister; 

and as a matter of law, appellant is not a consumer as defined by the DTPA. In its 

 

2 We construe this first ground as a challenge to the breach element of appellant's breach of 

contract action. In other words, First Victoria appears to have argued by this ground that its actions 

established the POD account requested by Robert and, therefore, it did not breach its agreement with 

Robert to make the requested change.
4

no-evidence motion, First Victoria argued that appellant

[C]annot come forward with any evidence to support the existence of a duty 

owed to [appellant] by contract or otherwise, or that [appellant] was a 

consumer as defined by the Texas [DTPA], or that [First Victoria] violated 

the Texas [DTPA], or that [First Victoria] had any duty (or breached a duty)

to defend or protect the interests of [appellant] in the prior litigation. 

Hence, [appellant] cannot prove the elements necessary to sustain any of 

these causes of action against [First Victoria].[3]

Appellant responded to each of First Victoria's traditional grounds for summary 

judgment, arguing that: under the probate code and case law, the File Maintenance 

Form did not create a POD account as instructed by Robert; First Victoria is estopped 

from avoiding its contractual obligations to appellant as third-party beneficiary; First 

Victoria had a common-law duty to perform with care, skill, reasonable expedience, and 

faithfulness that arose out of the contract to create the requested POD account with 

appellant as the beneficiary4; appellant is a creditor beneficiary of the account created by 

Robert and is therefore a consumer as defined by the DTPA; and because appellant is a 

creditor beneficiary, First Victoria had a duty to defend or protect his interests in the earlier 

litigation. Appellant also attached the following evidence to his response: the original 

signature card through which Robert initially set up the CD as a single-party account 

 

3

Because a no-evidence motion for summary judgment must specifically identify the elements of 

the claim for which there is no evidence, see Meru v. Huerta, 136 S.W.3d 383, 386 (Tex. App.—Corpus 

Christi 2004, no pet.), we construe First Victoria's no-evidence motion as follows: there is no evidence (1) 

of any negligence duty owed by First Victoria to appellant; (2) that appellant is a consumer within the DTPA 

definition; and (3) that First Victoria had a duty to defend or protect appellant in the earlier litigation with his 

sister. 

First Victoria's reference to a contractual "duty" does not challenge any relevant element of the 

contract cause of action pled by appellant. And First Victoria does not make any further challenge to 

appellant's DTPA claim by its broad statement that there is no evidence that it "violated the Texas [DTPA]." 

As such, neither of the foregoing were proper bases for summary judgment under the no-evidence 

rationale. See id. at 386-87 (holding that conclusory motions or general no-evidence challenges to an 

opponent's case are not appropriate under rule 166a(i)).

4

Appellant also responded that he "has an independent cause of action for negligence" against 

First Victoria arising from the circumstances under which the funds were released to appellant. Having 

reviewed appellant's petition, however, we do not find any pleadings in that regard.
5

without a POD designation; the File Maintenance Form; and appellant's responses to 

First Victoria's interrogatories.

After a hearing, the trial court granted First Victoria's motion for summary judgment 

on all of appellant's claims. In its order, the trial court did not specify the bases on which 

it granted summary judgment. This appeal followed.

II. Standard of Review

We review a trial court's summary judgment de novo. Travelers Ins. Co. v. 

Joachim, 315 S.W.3d 860, 862 (Tex. 2010). If a trial court grants summary judgment 

without specifying the grounds for granting the motion, we must uphold the trial court's 

judgment if any of the theories presented are meritorious. Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 217 (Tex. 2004); FM Props. Operating Co. v. City of Austin, 

22 S.W.3d 868, 872-73 (Tex. 2000). The motion must state the specific grounds relied 

upon for summary judgment. See TEX. R. CIV. P. 166a(c), (i); Timpte Indus., Inc. v. Gish, 

286 S.W.3d 306, 310 (Tex. 2009). When reviewing a summary judgment motion, we 

must take as true all evidence favorable to the nonmovant and indulge every reasonable 

inference and resolve any doubts in the nonmovant's favor. Valence Operating Co. v. 

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

A party seeking summary judgment may combine in a single motion a request for 

summary judgment under the no-evidence standard with a request under the traditional 

summary judgment standard. Binur v. Jacobo, 135 S.W.3d 646, 650 (Tex. 2004). 

When a party has filed both a traditional and no-evidence summary judgment motion and 

the order does not specify which motion was granted, we typically review first the 

propriety of the summary judgment under the no-evidence standard. See TEX. R. CIV. P. 
6

166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the 

no-evidence summary judgment was properly granted, we need not reach the arguments 

under the traditional motion for summary judgment. See Mack Trucks, Inc. v. Tamez, 

206 S.W.3d 572, 600 (Tex. 2006).

A. No-Evidence Summary Judgment

In a no-evidence motion for summary judgment, the movant must assert that there 

is no evidence of one or more essential elements of a claim on which the adverse party 

will bear the burden of proof at trial. TEX. R. CIV. P. 166a(i); Scripps Tex. Newspapers, 

L.P. v. Belalcazar, 99 S.W.3d 829, 840 (Tex. App.—Corpus Christi 2003, pet. denied). 

Under rule 166a(i), "[t]he court must [then] grant the [no-evidence] motion unless the 

respondent produces summary judgment evidence raising a genuine issue of material 

fact." TEX. R. CIV. P. 166a(i); see Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex. 

App.—Austin 1998, no pet.). The movant has no burden to attach any evidence to a 

no-evidence motion for summary judgment. TEX. R. CIV. P. 166a(i); Ortega, 97 S.W.3d 

at 772. The nonmovant bears the entire burden of producing evidence to defeat a 

no-evidence motion for summary judgment. TEX. R. CIV. P. 166a(i). When the 

nonmovant fails to do so, the "court must grant the motion." Id.

In reviewing a no-evidence motion, the appellate court applies the same 

legal-sufficiency standard as it does when reviewing a directed verdict. Belalcazar, 99 

S.W.3d at 840. "'Like a directed verdict, then, the task of the appellate court is to 

determine whether the [nonmovant] has produced any evidence of probative force to 

raise fact issues on the material questions presented.'" Id. (quoting Jackson, 979 

S.W.2d at 70). To raise a genuine issue of material fact, the nonmovant must bring forth 
7

more than a scintilla of probative evidence on the challenged element. See Jackson, 979 

S.W.2d at 70; see also Ortega, 97 S.W.3d at 772. "Less than a scintilla of evidence 

exists when the evidence is 'so weak as to do no more than create a mere surmise or 

suspicion’ of a fact." Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San 

Antonio 1998, pet. denied) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 

1983)). "Conversely, more than a scintilla exists when the evidence 'rises to a level that 

would enable reasonable and fair-minded people to differ in their conclusions.'" Ortega, 

97 S.W.3d at 772 (quoting Transp. Inc. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)).

B. Traditional Summary Judgment

In a traditional summary judgment motion, the movant has the burden to show that 

no genuine issue of material fact exists and that the trial court should grant judgment as a 

matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. 

Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant moving for traditional 

summary judgment must conclusively negate at least one essential element of each of 

the plaintiff's causes of action or conclusively establish each element of an affirmative 

defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). The 

summary judgment movant has conclusively established a matter if reasonable people 

could not differ as to the conclusion to be drawn from the evidence. See City of Keller v. 

Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

III. Breach of Contract

By two issues, appellant argues that the trial court erred in granting summary 
8

judgment on his breach of contract claim on the two grounds advanced by First Victoria.5 

In his first issue, appellant argues that there is a fact issue as to whether the File 

Maintenance Form was sufficient to effectuate Robert's instructions to make his CD a 

POD account, which in turn, creates a fact issue on the breach element challenged by 

First Victoria. In his second issue, appellant argues that a fact issue exists on whether 

First Victoria owed him a contractual duty as the intended beneficiary of Robert's account.

A. The File Maintenance Form

The essential elements for a breach of contract claim are the following: (1) 

existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) 

a breach by the defendant; and (4) damages sustained by the plaintiff as a result of the 

breach. Sauceda v. GMAC Mortgage Corp., 268 S.W.3d 135, 140 (Tex. App.—Corpus 

Christi 2008, no pet.). First Victoria does not dispute that it had an agreement with 

Robert to change the designation on his CD from a single-party account without a POD 

designation to a single-party account with a POD designation with appellant listed as 

beneficiary. Rather, in its motion for summary judgment, First Victoria attempted to 

negate the breach element by arguing that the File Maintenance Form was adequate as a 

matter of law to change Robert's CD to a POD account. 

Section 439 of the probate code "provides the exclusive means for 

creating . . . P.O.D. (payable on death) accounts . . . ." Stauffer v. Henderson, 801 

S.W.2d 858, 862-63 (Tex. 1990) (citing TEX. PROB. CODE ANN. § 439(b) (West 2003)). 

If the account is a P.O.D. account and there is a written agreement signed 

by the original payee or payees, on the death of the original payee or on the 

death of the survivor of two or more original payees, any sums remaining on 

 

5 Having reviewed the motions filed in the trial court, we conclude that First Victoria moved only for 

traditional summary judgment on the breach of contract claim. See supra note 3.
9

deposit belong to the P.O.D. payee or payees if surviving, or to the survivor 

of them if one or more P.O.D. payees die before the original payee. 

TEX. PROB. CODE ANN. § 439(b). Section 440 of the probate code governs the effect of 

the written agreement:

The provisions of Section 439 of this code as to rights of survivorship are 

determined by the form of the account at the death of a party. 

Notwithstanding any other provision of the law, this form may be altered by 

written order given by a party to the financial institution to change the form 

of the account or to stop or vary payment under the terms of the account. 

The order or request must be signed by a party, received by the financial 

institution during the party's lifetime, and not countermanded by other 

written order of the same party during his lifetime.

Id. § 440 (West 2003). To conclusively disprove the challenged breach element and, 

thus, show its entitlement to summary judgment, First Victoria endeavored to prove as a 

matter of law that it complied with the foregoing provisions of the probate code.

Appellant contends that, under the probate code, the File Maintenance Form was 

insufficient to effectuate the POD designation requested by Robert.6 And we agree. 

The probate code requires a "specific, definite written agreement before such property [is] 

allowed to pass outside a testamentary instrument." Kitchen v. Sawyer, 814 S.W.2d 

798, 801 (Tex. App.—Dallas 1991, writ denied) (citation omitted); see also Rogers v. 

Shelton, 832 S.W.2d 709, 711 (Tex. App.—Eastland 1992, writ denied) (holding that 

 

6 We note that, in his breach of contract action, appellant is not limited to the account documents in 

proving his claim. See A.G. Edwards & Sons, Inc. v. Beyer, 235 S.W.3d 704, 708 (Tex. 2007). In cases 

where the issue is ownership of the funds on deposit, the plaintiff may not use extrinsic evidence to show 

whether the account is a valid right-of-survivorship or otherwise POD account. See Stauffer v. Henderson, 

801 S.W.2d 858, 863 (Tex. 1990). However, in cases where, as here, the issue is whether the financial 

institution breached its agreement with a decedent in failing to set up the requested account, the plaintiff 

may utilize extrinsic evidence to prove its claim. See A.G. Edwards, 235 S.W.3d at 708.

Nonetheless, in this opinion, our analysis is circumscribed by the grounds advanced by First 

Victoria in its motion for summary judgment and the evidence before the trial court in the proceedings on 

that motion. See TEX. R. CIV. P. 166a(c); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). 

Because First Victoria asserts only that its File Maintenance Form was sufficient under the probate code to 

effectuate Robert's instructions and the only evidence before the trial court was the account documents, we 

limit our analysis to whether the account documents disprove the breach element as a matter of law.
10

mere addition of name to a signature card "was not a 'written order' given by a party to the 

bank to change the 'form of the account' or to 'vary payment' under the terms of the 

account" and thus did not comply with probate code section 440). No such specificity is

present here. The terms "payable on death" or "POD" appear nowhere on the form. 

The signature card signed by Robert to originally open the account uses the term 

"beneficiary" in connection with single-party POD accounts, multiple-party accounts with 

right of survivorship and POD designation, and trust accounts. Thus, the term "Add 

Beneficiary" on the File Maintenance Form could have referred to the creation of a trust, a 

multiple-party account with right of survivorship, or a single-party POD account. In other 

words, the File Maintenance Form was simply too vague and ambiguous to comply with 

the written agreement requirement of the probate code. 

As such, we conclude that First Victoria failed to negate the breach element as a 

matter of law. A fact issue exists on this element, and the trial court erred in granting 

summary judgment on appellant's breach of contract claim on this basis. See TEX. R.

CIV. P. 166a(c). Appellant's first issue is sustained.

B. Appellant's Standing to Bring a Contract Claim

By his second issue, appellant challenges First Victoria's ground that it owed no 

contractual duty to appellant as a third-party beneficiary. In its motion for summary 

judgment, First Victoria asserts that before a "third-party beneficiary has standing to sue 

to enforce a contract," "there must be an enforceable agreement." Thus, by this ground, 

First Victoria appears to challenge the existence of an agreement between itself and 

Robert to alter the form of the account. In support of its challenge, First Victoria then 

asserts that if the File Maintenance Form was insufficient to create a POD account, no 
11

agreement involving appellant was ever entered into by First Victoria and Robert. In 

other words, according to First Victoria, the reason no agreement existed was because 

the "File Maintenance Form was [not] effective to create" the POD account. The premise 

of First Victoria's ground is fundamentally flawed.

First Victoria provides no argument or evidence as to the formation of the 

agreement between itself and Robert and does not otherwise question the basis of the 

agreement. Instead, First Victoria's reasoning seems to be that its failure to perform its 

part of the bargain—i.e., creating the POD account with appellant as 

beneficiary—retroactively erases the initial agreement. We find no basis in fact or law for 

this reasoning. The existence of the agreement preceded any actions by First Victoria in 

furtherance of the agreement. Whether those actions constituted a breach by First 

Victoria, as discussed in the first appellate issue, has no bearing on the existence of the 

agreement.

We conclude that First Victoria failed to prove as a matter of law that it owed no 

contractual duty to appellant, and the trial court erred in granting summary judgment on 

this basis. Appellant's second issue is sustained.

IV. Negligence, "Indemnity," and DTPA

By his remaining issues, appellant challenges the trial court's summary judgment 

on his negligence, "indemnity," and DTPA claims. First Victoria filed a no-evidence 

motion for summary judgment on each of these causes of action. This shifted the burden 

to appellant to produce evidence raising a genuine issue of material fact on each of the 

challenged grounds—we will analyze next whether he met that burden. 

A. Negligence
12

By his third issue, appellant argues that the trial court erred in granting summary 

judgment on his negligence cause of action. In its no-evidence motion on this claim, 

First Victoria asserted that there is no evidence that it owed any common-law negligence 

duty to appellant. And having reviewed the summary judgment response filed by 

appellant in the trial court, we find that appellant failed to meet his burden to raise a fact 

issue on this ground.

"[I]f the defendant's conduct . . . would give rise to liability only because it breaches 

the parties' agreement, the plaintiff's claim ordinarily sounds only in contract." Sw. Bell 

Tel. Co. v. DeLanney, 809 S.W.2d 493, 494 (Tex. 1991). More specifically, "in the 

absence of a duty to act apart from the promise made," mere nonfeasance under a 

contract creates liability only for breach of contract. Id. at 495 n.2 (citations omitted). It 

is appellant's own contention, both in his summary judgment response and now on 

appeal, that First Victoria owed him a duty arising out of its agreement with Robert to 

change his CD to a POD account with appellant as beneficiary. Appellant has identified 

no duty separate from the contract and has produced no evidence of any such duty. 

Because appellant failed to meet his burden of producing evidence in response to this 

ground, the trial court did not err in granting First Victoria's motion for summary judgment 

on this no-evidence basis. See TEX. R. CIV. P. 166a(i); Jackson, Inc., 979 S.W.2d at 70.

B. "Indemnity" Cause of Action

By his fourth issue, appellant argues that the trial court erred in granting summary 

judgment on his claim that First Victoria failed to "indemnify" and protect his and Robert's 

interests in the probate suit filed by appellant's sister. In its no-evidence motion on this 

claim, First Victoria asserted that there is no evidence that it had a duty to defend or 
13

protect appellant in the earlier litigation with his sister. We have reviewed the summary 

judgment response filed by appellant in the trial court, and the evidence produced by 

appellant related to the duty to indemnify and protect that he alleged in his petition was no 

more than a scintilla. See Jackson, 979 S.W.2d at 70; see also Ortega, 97 S.W.3d at 

772.

To his response, appellant attached the File Maintenance Form naming him as 

beneficiary and interrogatory responses in which he claimed that the bank owed him a 

duty as a beneficiary. Based on that evidence, appellant appears to contend that 

because he was the intended beneficiary of the POD account requested by Robert, First 

Victoria was somehow duty-bound to protect him in the litigation with his sister. But 

appellant has identified no legal theory supporting this contention, and faced only with this 

bare contention, we cannot conclude the evidence produced by appellant did anything 

more than create a mere surmise or suspicion of fact. See Moore, 981 S.W.2d at 269. 

In light of this, the trial did not err in granting First Victoria's no-evidence summary 

judgment on this ground. See TEX. R. APP. P. 166a(i). 

C. DTPA

By his fifth issue, appellant challenges the summary judgment on his claim that 

First Victoria's failure to properly create the POD account violated the DTPA. First 

Victoria filed a no-evidence motion for summary judgment on this cause of action, as well,

asserting that there is no evidence that appellant is a consumer within the definition 

provided by the DTPA. Again, this shifted the burden to appellant to produce evidence 

raising a genuine issue of material fact on the ground. And again, we have reviewed the 

summary judgment response filed by appellant in the trial court, and the evidence 
14

produced by appellant related to his status as a DTPA consumer did not meet this burden. 

In his response and on appeal, appellant contends that because he was a "creditor 

beneficiary" of Robert's account, he was a consumer as defined by the DTPA. Assuming

for the sake of argument, but without deciding, that a creditor beneficiary is a DTPA 

consumer, appellant produced no evidence that he was a creditor beneficiary as he 

claims. 

[C]reditor beneficiaries may bring suit to enforce a contract; incidental 

beneficiaries may not. . . . A party is a creditor beneficiary if no intent to 

make a gift appears from the contract, but performance will satisfy an actual 

or asserted duty of the promisee to the beneficiary, such as an 

indebtedness, contractual obligation, or other legally enforceable 

commitment to the third party, and the promisee must intend that the 

beneficiary will have the right to enforce the contract. The intent to confer a 

direct benefit upon a third party must be clearly and fully spelled out or 

enforcement by the third party must be denied. Incidental benefits that 

may flow from a contract to a third party do not confer the right to enforce 

the contract.

Allan v. Nersesova, 307 S.W.3d 564, 571-72 (Tex. App.—Dallas 2010, no pet.) (citing S. 

Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 306 (Tex. 2007); Esquivel v. Murray Guard, 

Inc., 992 S.W.2d 536, 543 (Tex. App.—Houston [14th Dist.] 1999, pet. denied)) (internal 

quotations omitted). Appellant produced no evidence that Robert made him a

beneficiary of the CD account out of any legally enforceable duty owed by Robert to 

appellant, such as the satisfaction of a debt or contractual obligation. And because

appellant produced no evidence showing he was a creditor beneficiary—the only basis 

through which appellant claims DTPA consumer status—he failed to raise a fact issue on 

the challenged ground. See TEX. R. CIV. P. 166a(i); Jackson, 979 S.W.2d at 70.

D. Summary

Because we are affirming First Victoria's no-evidence summary judgment on the 
15

negligence, "indemnity," and DTPA causes of action, we need not address the traditional 

motion filed on these same grounds. See Mack Trucks, Inc., 206 S.W.3d at 600. 

Appellant's third, fourth, and fifth issues are overruled.

V. Conclusion

We affirm the trial court's summary judgment as to appellant's negligence, 

"indemnity," and DTPA claims. We reverse the trial court's summary judgment on the 

breach of contract cause of action and remand for proceedings consistent with this 

opinion.

NELDA V. RODRIGUEZ

Justice

Delivered and filed the 31st

day of August, 2011.