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Click here for the full text of this decision FACTS:Helen Hubler hired Wade Morrow to construct a barn for $47,500. Morrow requested the money in advance, which Hubler paid with a check. Both Hubler and Morrow maintained accounts at Bank of America. Karen Tse, a bank representative, subsequently contacted Hubler to inquire about the check because Morrow’s account had previously exhibited little activity. Hubler acknowledged writing the check. After continued conversation with Tse, Hubler grew concerned and requested a stop-payment. Tse accepted the request. That same day, another bank representative initially declined to stop-payment. After speaking with Tse, the representative agreed to honor the request. Hubler received a stop-payment notice, and the funds were returned to her account. A few days later, Hubler received a call informing her that the bank could not stop-payment and the funds would again be withdrawn from her account. The bank also sent a letter explaining that it was too late to stop payment, because Hubler’s request came after Morrow had already negotiated the check. Morrow then withdrew all the funds from his account. The court rendered judgment in Hubler’s favor. On appeal, the bank contended: 1. There was no evidence or factually insufficient evidence that it breached the parties’ deposit agreement; 2. There was no evidence or factually insufficient evidence of contractual modification; 3. Hubler’s tort claims were barred because they sound in contract only; 4. There was no evidence or factually insufficient evidence of causation; 5. There was no evidence or factually insufficient evidence that Hubler’s reliance was justifiable; and 6. Hubler failed to mitigate her damages. In one cross-point, Hubler challenged the court’s failure to award attorney’s fees. HOLDING:Affirmed in part, reversed and remanded in part. In its first issue, the bank contended there was no evidence or factually insufficient evidence to support the finding that the bank breached its contract with Hubler. It is undisputed that Hubler’s stop-payment request came too late under the terms of the deposit agreement, the court stated. However, the court found that despite the contractual language, the bank initially stopped payment and returned the funds to Hubler’s account. But after stopping payment and crediting Hubler’s account, the bank reversed the transaction. This conduct, the court found, constituted a breach of the deposit agreement. The court recited facts from the record that on Dec. 24, 2003, Bank of America NA, without authorization from plaintiff, debited the amount of $47,500 from plaintiff’s account, thus depriving plaintiff the rightful use of said funds. These, the court found, constituted some evidence and factually sufficient evidence to support the trial court’s finding that the bank breached the contract. Moving on to the third issue, the bank asserted that the economic-loss rule barred Hubler’s tort claims, because no independent injury or misrepresentation occurred. Hubler’s breach of contract and negligent misrepresentation claims, the court stated, are both based on the same factual scenario, namely the bank’s unauthorized withdrawal after stopping payment. Therefore, the court held that because Hubler’s claim was purely economic and sounds in contract alone, she suffered no injury independent of her contract claim. In its sixth issue, the bank argued that the court erroneously refused to find that Hubler failed to mitigate her damages. But the court found that the bank failed to preserve this argument for appeal. A party asserting an affirmative defense, such as mitigation, in a bench trial must request findings in support thereof to avoid waiver, the court stated. OPINION:Reyna, J.; Reyna and Vance, J.J. DISSENT:Gray, C.J., dissented without an opinion.

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