Colie Mae Herring v. Glenn Johnson, Administrator of the Estate of Helen Ida Pittman Huffman ( 2003 )

Reversed and Remanded and Memorandum Opinion filed December 16, 2003

Reversed and Remanded and Memorandum Opinion filed December 16, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-03-00266-CV

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COLIE MAE HERRING, Appellant

V.

GLENN JOHNSON, Administrator of the Estate of  HELEN IDA PITTMAN HUFFMAN, Deceased, Appellee

On Appeal from the Probate Court No. 2

Harris County, Texas

Trial Court Cause No. 320,903-402

M E M O R A N D U M O P I N I O N

Appellant, Colie Mae Herring (AHerring@) appeals from the grant of final summary judgment ordering her to surrender the proceeds of a bank account to appellee, Glenn Johnson (AJohnson@), the administrator of her sister=s estate.  On appeal, Herring contends that the trial court erred in finding no right of survivorship was created in the joint bank account.  We reverse and remand.

This appeal arises out a declaratory judgment suit brought by Johnson in his capacity as the administrator of Mrs. Helen Ida Pittman Huffman=s estate.  Mrs. Huffman died intestate on November 24, 2000, in Hattiesburg, Mississippi.  Mrs. Huffman was predeceased by her husband and had no children.  Herring was her only living sibling.  At the time of her death, Mrs. Huffman owned several bank accounts. The declaratory judgment suit was brought to determine whether these accounts were joint accounts with rights of survivorship.  All issues involving the disputed accounts were resolved by agreement and stipulation, except as to one account.  The remaining account was an interest-bearing checking account at Bank of America, N.A., account number 422 550 1261and styled AHelen Huffman or Colie Mae Herring.@  The account was opened by Mrs. Huffman in 1981.^[1]  Sometime later, a new signature card was executed and Herring was added to the account. The language, AJoint with Right of Survivorship,@ appeared next to a box on the card.  The box had been checked, but there were no initials next to the check mark or the above quoted language.  Mrs. Huffman=s and Herring=s signatures appeared further down on the card. 

The legal effect of this signature card forms the basis of the dispute. Johnson filed a motion for summary judgment asserting that the signature card did not create a right of survivorship in favor of Herring.  After an oral hearing, the trial court granted Johnson=s motion and ordered Herring to return the proceeds of the disputed bank account to the estate.

The standard we follow in reviewing a summary judgment is well‑established.  The movant for summary judgment has the burden to show that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law.   Tex. R. Civ. P. 166a(c);  Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548‑49 (Tex.1985).  When deciding whether there is a disputed material fact issue precluding summary judgment, we treat proof favorable to the non‑movant as true and we resolve any doubts in its favor.  Nixon, 690 S.W.2d at 548‑49; Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984).

Johnson argued in his motion for summary judgment that the signature card purporting to grant Herring a right of survivorship in the account was insufficient as a matter of law. Johnson cited Stauffer v. Henderson, 801 S.W.2d 858 (Tex. 1990) in which the Texas Supreme Court explained that a right to survivorship could only be created by a written agreement that follows the section 439(a) of the Probate Code.^[2]  In analyzing whether a right to survivorship was created, Stauffer established that courts could not consult any extrinsic evidence.  Stauffer, 801 S.W.2d at 865.  Accordingly, Johnson argued that the signature card, alone,  was not in compliance with section 439(a); thus, no right of survivorship was created by the document.

Herring directed the trial court to post-Stauffer amendments to the Probate Code in drafting her response to the motion for summary judgment.  More specifically, Herring alleged in her response that the signature card was in compliance with both sections 439(a) and 439A.  Herring correctly explained that the Texas Legislature had expanded the A>magic words=@ requirement of 439(a) by enacting 439A.  The amendments allow for the language creating the right to survivorship to be included in another account agreement or disclosure.^[3] Herring argued the requisite language was included in the Deposit Agreement and Disclosure given to Mrs. Huffman.   

Section 439A only applies to agreements entered into after  September 1, 1993.  Allen v. Wachtendorf, 962 S.W.2d 279, 283 (Tex. App.CCorpus Christi 1998, pet. denied).  By invoking 439A, a fact question necessarily arises as to the date the signature card was executed.   The signature card appears to bear a printing date of A6/97@ suggesting the execution of the new signature card was sometime after June 1997.  However, both parties provide theories as to the date of execution, and we find nothing in the record to conclusively establish the date of execution.^[4] Moreover, without a date of execution, we are unable to determine the applicable statue governing the account at the time Herring was added to the account. Faced with this fact issue, we must reverse the order of the trial court granting summary judgment.

The order of the trial court is reversed.  We remand this case for proceedings consistent with this opinion. 

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed December 16, 2003.

Panel consists of Justices Yates, Hudson, and Fowler.

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^[1]  The record reflects that Bank of America and NationsBank merged in 2000.  NationsBank was previously known as NCNB, but after a merger with CNS Sovereign, it formed NationsBank.  The signature card was signed while that bank was operating as NationsBank. 

^[2]           Notwithstanding any other law, an agreement is sufficient to confer an absolute right of survivorship on parties to a joint account under this subsection if the agreement states substantially the following form: >On the death of one party to a joint account, all sums in the account on the date of the death vest in and belong to the surviving party as his or her separate property and estate.=  A survivorship will not be inferred from the mere fact that the account is a joint account.

Tex. Prob. Code Ann. ' 439(a) (Vernon 2003).

^[3]  This section provides form language to establish particular types of accounts:

(4) MULTIPLE-PARTY ACCOUNT WITH RIGHT OF SURVIVORSHIP.  The parties to the account own the account in proportion to the parties= net contributions to the account.  The financial institution may pay any sum in the account to a party at any time.  On the death of a party, the party=s ownership of the account passes to the surviving parties.

Tex. Prob. Code Ann. ' 439A(b) (Vernon 2003).  However, the financial institution may vary the format of the form and Amake disclosures in the account agreement or in any other form which adequately discloses the information provided in this section.@  Id. ' 439A(c).  The institution may also employ the use of Aa universal account form with options listed for selection and additional disclosures provided in the account agreement.@  Id.  ' 439A(d).

^[4]  Jerilynn Johns, Bank of America vice-president and banking center manager, surmised in her deposition that the signature card was signed sometime between 1990 and 2000.