TEXAS AMERICAN BANK/FARMERS BRANCH, Appellant v. ABRAMS CENTRE NATIONAL BANK, Appellee

AFFIRMED September 25, 1989.
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-88-01317-CV
............................
TEXAS AMERICAN BANK/FARMERS BRANCH, Appellant
V.
ABRAMS CENTRE NATIONAL BANK, Appellee
.................................................................
On Appeal from the 162nd District Court
Dallas County, Texas
Trial Court Cause No. 87-14392-I
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O P I N I O N
Before Justices Whitham, Lagarde and Kinkeade
Opinion By Justice Lagarde
                Texas American Bank/Farmers Branch (TAB) appeals from the trial court's take-nothing summary judgment entered in favor of Abrams Centre National Bank (Abrams). In a sole point of error, TAB asserts that the trial court erred, as a matter of law, in granting Abrams's motion for summary judgment and denying TAB's motion for summary judgment. We disagree and affirm the trial court's judgment.
        The record in this case shows that four checks, drawn on Abrams, were given to TAB for payment on a letter of credit. After being processed by TAB, the checks were presented to MTech, Abrams's off-site data processing center, some time before 4:00 p.m. on Friday, August 15, 1986. The checks were processed through MTech and physically delivered to Abrams at 8:00 a.m. on Monday, August 18, 1986. An officer for Abrams, William E. Lowe, received the checks that morning, and, because there were insufficient funds in the drawer's account to pay the checks, Lowe telephoned the drawer. The drawer told Lowe that he would deposit funds to cover the checks by the end of the Monday banking day. The drawer never showed up, and Abrams made no effort to return the checks until 10:00 a.m. on August 19, 1986. With these facts in mind, we address TAB's point of error.
        TAB claims that in this case the provisions of the Texas Business and Commerce Code (hereinafter Texas U.C.C.) that govern this type of transaction have been varied by contract. Abrams, on the other hand, claims that the express provisions of the Texas U.C.C. control. TAB concedes that if the Texas U.C.C. controls, it cannot prevail. Therefore, preliminarily, we will set out the applicable provisions of the Texas U.C.C. and, thereafter, we will examine TAB's theory of how the "contract" varies the terms of the Texas U.C.C.
TEXAS U.C.C.
        The Texas U.C.C. provides certain deadlines for the processing of checks. One such deadline requires a payor bank to return a check within a specified time limit; in pertinent part, it reads:
                (a) Where an authorized settlement or a demand item (other than a documentary draft) received by a payor bank otherwise than for immediate payment over the counter has been made before midnight of the banking day of receipt the payor bank may revoke the settlement and recover any payment if before it has made final payment (Subsection (a) of Section 4.213) and before its midnight deadline it
 
                (1) returns the item; or
 
                (2) sends written notice of dishonor or         nonpayment if the item     is held for         protest or is otherwise unavailable for         return.
TEX. BUS. & COM. CODE ANN. § 4.301(a) (Tex. U.C.C.) (Vernon 1968) (emphasis added). The Texas U.C.C. further provides a definition for "midnight deadline" which states: "'Midnight deadline' with respect to a bank is midnight on its next banking day following the banking day on which it receives the relevant item or notice or from which the time for taking action commences to run, whichever is later." TEX. BUS. & COM. CODE ANN. § 4.104(a)(8) (Tex. U.C.C.) (Vernon 1968) (emphasis added); see First State Bank of McKinney v. American Bank of Sherman, 732 S.W.2d 404, 405 (Tex. App.--Dallas 1987, no writ).
        The code defines banking day as "that part of any day on which a bank is open to the public for carrying on substantially all of its banking functions." TEX. BUS. & COM. CODE ANN. § 4.104(a)(3) (Tex. U.C.C.) (Vernon 1968). Applying the above definitions to section 4.301(a), that section provides that a payor bank must return or send notice of dishonor or nonpayment on the next banking day (i.e., that part of any day on which a bank is open to the public for carrying on substantially all of its banking functions) following the banking day on which it receives the relevant item. See TEX. BUS. & COM. CODE ANN. §§ 4.104(a)(3), 4.104(a)(8), and 4.301(a) (Tex. U.C.C.) (Vernon 1968). A bank "receives" an item when it is delivered on a banking day to the bank's off-site data processing center. FN:1 See Pulaski Bank & Trust v. Texas Am. Bank/Fort Worth, 759 S.W.2d 723, 730 (Tex. App.--Dallas 1988, writ denied). If the item is not returned by midnight of the banking day following the banking day on which the bank receives the item, then the bank is strictly liable for payment of the item. See Hamby Co. v. Seminole State Bank, 652 S.W.2d 939, 941 (Tex. 1983); TEX. BUS. & COM. CODE ANN. § 4.302 (Tex. U.C.C.) (Vernon 1968). This case specifically deals with when the midnight deadline for the return of the items actually began.
        Abrams asserts, and TAB concedes, that, under the express provisions of the Texas U.C.C., the midnight deadline only begins to run when an item is received on "that part of any day on which a bank is open to the public for carrying on substantially all of its banking functions." In this case, the item would have to have been received by MTech (Abrams's off-site data processing center) by 3:00 p.m. Friday to be considered "received" during the Friday banking day.         
        TAB concedes that it cannot show that the checks were received prior to 3:00 p.m. Friday. Consequently, if the Texas U.C.C. applies, Abrams would have acted properly in treating the checks as received on Monday, instead of as received on Friday. By treating the checks as received on Monday, Abrams would not have been required to return the checks until midnight on Tuesday; therefore, its return by 10:00 a.m. on Tuesday, August 19, would have been timely. Thus, as TAB concedes, if the terms of the Texas U.C.C. apply, Abrams is not strictly liable for payment of the checks.
 
TAB'S VARIANCE THEORY
        
         However, arguing that the Dallas Clearing House Rules constitute a "contract," TAB asserts that, in this instance, the terms of the Texas U.C.C. have been varied by that contract. Specifically, TAB maintains that rule 7(a) of the clearing house rules varies section 4.104(a)(8) of the Texas U.C.C. In relevant part, rule 7(a) reads:
        All members agree to have return items delivered to the DCHA office by 12:00 midnight of the first business day following presentment.
(Emphasis added.) TAB claims that the express language of rule 7(a) should be construed to mean "the first business day following the business day FN:2 of presentment." In essence, TAB is asking this court to rewrite rule 7(a) to add the words "the business day of" between the word "following" and the word "presentment."
        TAB's interpretation of rule 7(a) and its definition of "business day" would vary the portion of Texas U.C.C. section 4.104(a)(8) which states:
        'Midnight deadline' with respect to a bank is midnight on the next banking day following the banking day on which it receives the relevant item . . . .
(Emphasis added.) TAB's motivation for requesting this court to replace "banking day" with "business day" relates directly to TAB's definition of "business day," which, according to TAB, means anytime on Monday through Friday until 12:00 midnight. TAB's definition of "business day" differs from the 3:00 p.m. end of the Friday "banking day" by nine hours. If we were to vary the terms of the Texas U.C.C. by substituting "business day" for "banking day" in section 4.104(a)(8), as TAB requests, the checks would have been presented in time to start the running of the midnight deadline on Friday, because the checks were delivered to Abrams's off-site data processing center prior to 12:00 midnight on Friday. Consequently, TAB asserts that under the "midnight deadline" provision of the Texas U.C.C., as varied by Dallas Clearing House Rule 7(a), Abrams would have been required to return the checks to TAB by midnight Monday, or suffer the consequence of being strictly liable for payment of the checks. Because Abrams did not return the checks by midnight on Monday, TAB argues that Abrams must pay TAB for the dishonored checks.
CONCLUSION
         In effect, TAB is asking this Court to conclude, as a matter of law, that the words "the business day of" should be read into clearing house rule 7(a), thereby varying the portion of section 4.104(a)(8) of the Texas U.C.C. that states "the banking day on." This court will only construe an agreement as a matter of law if the agreement is so worded that it can be given a certain or definite legal meaning or interpretation. See Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); Compagna v. Lisotto, 730 S.W.2d 382, 384 (Tex. App.--Dallas 1987, no writ); MBank Dallas N.A. v. Sunbelt Mfg., Inc., 710 S.W.2d 633, 636 (Tex. App.--Dallas 1986, writ ref'd n.r.e.). We cannot construe the clearing house rule as definitely and certainly varying the terms of the Texas U.C.C.; nor will we infer that the phrase "the business day of" should be read into the clearing house rules to vary the express provision in section 4.104(a)(8) of the Texas U.C.C. stating "the banking day on."
        At most, the clearing house rule is ambiguous and, thus, capable of raising a question of fact. FN:3 However, TAB waived any claim of ambiguity by failing to plead the issue in the trial court; consequently, the issue of ambiguity cannot be considered as a ground for reversing the trial court's summary judgment and remanding the case to the trial court for a new trial. See Bernard v. L.S.S. Corp., 532 S.W.2d 409, 411 (Tex. Civ. App.--Austin 1976, writ ref'd n.r.e.); see, e.g., Sale v. Contran Corp., 486 S.W.2d 161, 165 (Tex. Civ. App.--Dallas 1972, writ ref'd n.r.e.). For these reasons, we must affirm the trial court's judgment.
 
                                                                                                                                            SUE LAGARDE
                                                          JUSTICE
 
Judge Warren Whitham dissenting.
 
PUBLISH
TEX. R. APP. P. 90
88-01317FP05
 
        
 
FN:1 In this case, the checks were delivered to MTech, Abrams's off-site data processing center, before 4:00 p.m. on Friday, August 15, 1986.
FN:2 Business day, according to TAB, means anytime prior to l2:00 midnight Monday through Friday. TAB admits that the Data Processing Service Agreement between MTech and Abrams defines a "business day" as between 8:00 a.m. and 8:00 p.m. TAB implies, however, that the Data Processing Service Agreement definition does not apply in this context, and we agree.
FN:3 If TAB had pled ambiguity and the trial court had found t hat an ambiguity existed, the granting of Abrams's motion for summary judgment would have been improper because the interpretation of the instrument would have been a factual question for resolution by the trier of fact. See Reilly v. Rangers Management Inc., 727 S.W.2d 527, 528-29 (Tex. 1987); Coker v. Coker, 650 S.W.2d 391, 394 (Tex. 1983). Larry Hill, executive director of the North Texas Clearing House, stated, in an affidavit, that business day also applied to presentment. However, this constitutes parol evidence, and absent a pleading of ambiguity, cannot be properly considered. See Willow Bend Nat'l Bank v. Commonwealth Mortgage Corp., 722 S.W.2d 12, 14 (Tex. App.--Dallas 1986, writ ref'd n.r.e.); Maxwell v. Lake, 674 S.W.2d 795, 801(Tex. App.--Dallas 1984, , no writ).
File Date[09-25-89]
File Name[881317F]