Affirmed and Opinion filed December 30, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00530-CV
PHILIPPE RENEE NOTTEBOHM MAGANA AND MERCANTIL
MURCIA, S.A. DE C.V., Appellants
V.
CITIBANK, N.A., CITIBANK TEXAS, N.A., CITIGROUP, INC., AND ANA
MARIA NOTTEBOHM MAGANA, INDIVIDUALLY AND AS EXECUTOR
OF THE ESTATE OF PHILIPPE OTTO NOTTEBOHM DEKKERS,
DECEASED, Appellees
On Appeal from Probate Court No. 4
Harris County, Texas
Trial Court Cause No. 405,973-401
OPINION
This is a dispute between a brother and sister over ownership of funds in
three accounts. Philippe Otto Nottebohm Dekkers (Dekkers) and his wife1 opened
1
Although Philippe Otto’s surname was Nottebohm, that is also the surname of the
principal parties to this appeal, so we refer to him as Dekkers to avoid any ambiguity. Dekkers’
two accounts with Citibank, N.A., and Dekkers eventually opened an investment
account with Citigroup, Inc. Their children, appellant Philippe Rene Nottebohm
Magana (Philippe Rene) and appellee Ana Maria Nottebohm Magana (Ana), were
added as signatories on the three accounts, which we refer to collectively as the
“Citibank accounts.” After Dekkers died, a dispute arose between Philippe Rene
and Ana regarding the distribution of the funds held in the Citibank accounts.
Philippe Rene filed suit against Ana and Citibank seeking, among other things, a
declaration determining the “rightful distribution of the funds” in the accounts.
Appellant Mercantil Murcia, S.A., a Mexican corporation, intervened in the
litigation claiming it owned the funds in the accounts. Philippe Rene nonsuited
Citibank and modified his claims against Ana to assert that the funds in the
Citibank accounts belonged to Mercantil Murcia. Following a jury trial, the trial
court rendered judgment in favor of Ana and divided the funds in the Citibank
accounts.
Philippe Rene and Mercantil Murcia raise five issues on appeal. In their first
issue, appellants contend they are entitled to a new trial because the trial court’s
official court reporter had lost her certification before trial began. In appellants’
view, this meant there was no record of the trial. We overrule this issue because
appellants have not demonstrated they were harmed as a result of the court
reporter’s loss of her certification. In their second issue, appellants contend the
trial court abused its discretion when it admitted evidence allegedly in violation of
the Dead Man’s Rule found in Rule 601 of the Texas Rules of Evidence. Because
the challenged evidence is cumulative of other evidence admitted without
objection, we overrule this issue.
wife, Carolina Magana, died approximately ten years before Dekkers. Carolina played no direct
role in the events at issue in this litigation.
2
In their third issue, appellants argue that the submission of three jury
questions tainted the jury’s perception of the facts to such an extent that it caused
the jury to return an incorrect verdict. We conclude appellants waived this issue on
appeal because they failed to cite any legal authority in support of their argument.
We overrule appellant’s fourth issue challenging the sufficiency of the evidence
because we conclude that the record contains sufficient evidence to support the
trial court’s judgment. We also overrule appellants’ fifth issue in which they
contend the trial court erred when it: (1) ruled that the investment account was not
a joint account with right of survivorship, (2) refused to declare that Ana was not
an owner of the Citibank accounts as of May 19, 2011, (3) refused to order
Citibank to honor a $2.5 million check Philippe Rene wrote on May 20, 2011, and
(4) refused to award Philippe Rene his attorneys’ fees pursuant to the Uniform
Declaratory Judgment Act. We therefore affirm the trial court’s judgment.
BACKGROUND
A. The Citibank accounts and their disposition
Dekkers operated a successful import/export company in Mexico. 2 Dekkers
and his wife opened a checking account at Citibank as early as 1974. They also
opened a savings account with Citibank. The Dekkers later added their children,
Ana and Philippe Rene, as signatories to both accounts. 3
2
The evidence indicates that Dekkers operated the import/export brokerage business of
his wife’s family, which was named either Magana Sirera or Magana Sierra. The evidence also
indicates that Dekkers was involved in the operation of another import/export business, appellant
Mercantil Murcia. While the corporate records for Mercantil Murcia admitted into evidence
establish that Dekkers did not own Mercantil Murcia stock, there was evidence in the record that
he worked for (even controlled) the business, and that he ultimately made the decision in 2010 to
allow Philippe Rene to acquire his stock in the company.
3
The evidence is disputed regarding when the children were added to the accounts.
According to Ana, they were added as signatories on the accounts sometime in the 1980s, after
they had attained adulthood. Philippe Rene testified they were not added to the accounts until
3
Dekkers’ wife died in 2001. After her death, Dekkers, Ana, and Philippe
Rene signed documentation (1) confirming that the approximately $2.1 million in
the two Citibank accounts at that time were personal funds, and (2) designating the
three of them as the accountholders. In 2003, Dekkers opened an investment
account with Citigroup, Inc. Dekkers, Ana, and Philippe Rene were listed as the
accountholders on that account as well.
Dekkers learned he had leukemia in 2009. After he received that diagnosis,
Dekkers discussed how he wished to divide his assets upon his death with Ana and
her husband, Jorge Halvas. Dekkers explained that he wanted to split the money in
the three Citibank accounts equally between his two children. According to Ana,
Dekkers told her that the money in the Citibank accounts was his personal money
and did not belong to Mercantil Murcia. In addition, Halvas testified that Dekkers
never mentioned that the money in the Citibank accounts belonged to a company.
In January 2011, Dekkers travelled to Houston for medical treatment.
Dekkers would remain in Houston until his death. Both Ana and Philippe Rene
came to Houston and would spend alternating days with him. In March 2011,
Dekkers told Ana that Philippe Rene was pressuring him to give Philippe Rene
more than half of Dekkers’ assets. Dekkers gave Ana his medical power of
attorney at that time. Dekkers also drafted a will in April 2011. The 2011 will
specifically mentioned the Citibank accounts and directed that they be divided
equally between Ana and Philippe Rene. The will also designated Ana as the
executor of Dekkers’ estate.
In early May 2011, Dekkers decided that he did not wish to receive any
further medical treatment. As his condition worsened, Dekkers remained in the
hospital and he experienced periods of mental confusion. When it became clear
2003.
4
that the end was near, Dekkers made the decision to move to hospice care. May 18
was chosen as the date for the move. On that morning, Ana came into Dekkers’
hospital room after Philippe Rene had stayed overnight. Ana found a wine bottle
and two glasses in the room. When Ana arrived, Philippe Rene showed her a
handwritten note, dated May 18, 2011, that he said had been written by Dekkers.
The note asked Citibank to “[p]lease take note that contrary to my former
instructions only my son Philippe Rene Nottebohm is authorized to sign [checks]
of my account . . . . 2814.”4 The note also asked for a confirmation from Citibank.
According to Ana, Philippe Rene showed her the note and told her “that was what
was going to happen.”
Dekkers moved to the hospice that same day. When asked about her father’s
condition when he was transported to the hospice, Ana testified that he was weak,
unable to take care of himself, and was confused. Dekkers’ hospice records report
that he was lethargic, agitated, and minimally responsive the day of the move.
When Philippe Rene transmitted the May 18 note to Citibank, Sandino
Gonzalez, the Citibank representative who testified during the trial, informed
Philippe Rene in a telephone call that he could not remove any names from the
Citibank accounts unless he received a document signed by all persons named on
the accounts authorizing the removal. According to Gonzalez, this requirement
was found in the Citibank accounts’ terms and conditions, was Citibank’s standard
procedure dealing with the removal of a title holder of an account, and was the
procedure Citibank always followed. Gonzalez testified that he had never spoken
to Philippe Rene before the May 18 call. Gonzalez sent a form to Philippe Rene
that he could use to obtain the necessary signatures.
4
Citibank representative Sandino Gonzalez testified that Dekkers did not have an account
at Citibank with an account number that ended 2814.
5
Philippe Rene presented the form to Ana the next day and demanded that she
sign. After asking Dekkers if he wanted her to sign the form and he told her no,
Ana refused to sign it. Philippe Rene sent the form dated May 19 to Citibank with
his signature and that of Dekkers but without Ana’s signature. After receiving the
form, Gonzalez told Philippe Rene that Citibank would not remove Ana from the
accounts without her signature. Citibank froze the accounts at that point in time.
Gonzalez testified that the accounts were frozen because he perceived there was a
dispute among the accountholders.
On May 20, Philippe Rene wrote a check for $2,503,258 payable to himself
and drawn on the Citibank checking account. He then had his wife take the check
to the Houston office of U.B.S., his own financial institution. The record is unclear
whether she attempted to deposit the check into Philippe Rene’s personal account
at that time. Ultimately, the check was never paid. Once Philippe Rene realized
the Citibank accounts had been frozen, he entered Dekkers’ hospice room and
angrily demanded that his father call Citibank about the accounts because he
believed Ana had frozen them.
Concerned about Philippe Rene’s behavior in her father’s last days, Ana had
the doctor at the hospice examine Dekkers to determine his mental capacity. Dr.
Thuy Hanh Trinh examined Dekkers and determined that he did not have mental
capacity as of that date, May 20, 2011. Dr. Trinh directed that a letter to that effect
be prepared, which she then signed. Dekkers died two days later. At the time of
Dekkers’ death, the Citibank accounts had deposits totaling approximately $4
million.
B. Philippe Rene’s suit to declare ownership of the accounts
Dekkers’ April 2011 will was filed for probate in Harris County. The will
was admitted to probate without contest and Ana was appointed executor of
6
Dekkers’ estate. Philippe Rene filed a separate suit in Harris County district court
against Citibank and Ana, which was transferred to Harris County Probate Court
No. 4.
Philippe Rene’s original petition alleged that the funds in the Citibank
accounts were for the purpose of running an unnamed business operated by
Dekkers and himself. Philippe Rene further alleged that Citibank had improperly
refused to: recognize Dekkers’ May 18 note instructing Citibank to remove Ana as
a signatory on the accounts, and cash the $2.5 million check he had written on the
Citibank checking account. Philippe Rene sought declarations (1) that Ana was no
longer a signatory on the Citibank accounts; (2) ordering Citibank to honor the
$2.5 million check; and (3) ordering Citibank to interplead the funds in the three
Citibank accounts into the registry of the trial court. Ana filed an answer and a
counterclaim seeking a declaratory judgment with respect to the interests of the
parties in the three Citibank accounts.
Philippe Rene initially sued in his individual capacity. Only weeks before
the trial was scheduled to start, Philippe Rene amended his pleadings to claim that
the money in the Citibank accounts belonged to Mercantil Murcia and that
Citibank held the money in constructive trust for the benefit of Mercantil Murcia.
Philippe Rene also dismissed with prejudice all of his claims against both Citibank
and Citigroup. In addition, Mercantil Murcia intervened in the lawsuit.
The probate court held a five-day jury trial. Although Dekkers, Ana, and
Philippe Rene resided in Mexico, the three accounts at issue here were deposited
with Citibank and Citigroup in New York. Gonzalez testified during the trial that
he was the private banker in New York serving as the bank’s contact person with
Dekkers from 2009 until Dekkers’ death. Gonzalez testified that the accounts
were held as joint tenants with right of survivorship. Gonzalez further testified,
7
however, that he was not actually familiar with the investment account agreement
because it was with Citigroup. Gonzalez further testified that in performing his
duties for Citibank he met only with Dekkers. According to Gonzalez, Dekkers
never suggested that the funds in the Citibank accounts were anything other than
his personal funds. Gonzalez explained that it was his understanding that the
Citibank accounts were personal accounts and not business accounts. In addition,
Gonzalez testified that he had never heard of Mercantil Murcia. Finally, Gonzalez
testified that he had never spoken to Ana or Philippe Rene until just days before
Dekkers’ death.
Philippe Rene testified at length during the trial regarding appellants’
allegation that the funds in the Citibank accounts belonged to Mercantil Murcia.
According to Philippe Rene, Mercantil Murcia was formed as a Mexican
corporation in 2002. Philippe Rene testified that he and his wife owned Mercantil
Murcia and his father never owned an interest in the company. He also testified
that he served as the president of the company from its formation. 5
During the trial, appellants introduced Plaintiff’s Exhibit 67 into evidence.
Exhibit 67 was a handwritten document taken from a three-ring binder. Philippe
Rene testified Exhibit 67 was Mercantil Murcia’s business ledger. Appellants
argued the ledger established that the funds deposited in the Citibank accounts
belonged to Mercantil Murcia. In support of this argument, Philippe Rene testified
that the ledger documented all of Mercantil Murcia’s transactions and commissions
from 2001 until the time of the trial. While Philippe Rene conceded some of the
entries in the ledger were in Dekkers’ handwriting and predated the formation of
Mercantil Murcia, Philippe Rene claimed he kept the ledger as a record of the
5
It is undisputed that Philippe Rene was not an owner of the company until he obtained
the shares of Mercantil Murcia stock owned by a cousin in November 2010.
8
commissions he had earned from Mercantil Murcia transactions. Philippe Rene
also testified that all of the commissions mentioned in the ledger were deposited
into the Citibank accounts and that no other money was deposited into those
accounts between 2002 and the time the accounts were frozen. Philippe Rene also
testified that Mercantil Murcia regularly advanced money from the Citibank
accounts to clients of Mercantil Murcia to finance their purchases of products.
According to Philippe Rene, he wrote the $2.5 million check to advance funds to a
Mercantil Murcia client.
Ana testified during the trial that she always believed the money in the three
Citibank accounts was her father’s money. She further explained that she had no
reason to believe that the money in those accounts belonged to a company.
Ana called two expert witnesses to testify during the trial. Alex Perez, a tax
attorney practicing in Texas, testified concerning United States tax laws and
documents produced during the litigation. Perez testified that appellants’
contention that Mercantil Murcia owned the funds deposited in the Citibank
accounts was inconsistent with the records that he examined. Perez testified that
Form W-8BEN, a Certificate of Foreign Status of Beneficial Owner for United
States Tax Withholding, is a United States government form that requires foreign
depositors to confirm, under penalties of perjury, that the account is owned by the
signer individually and not by a company. According to Perez, the Form W-
8BENs associated with the Citibank accounts indicate that the funds deposited in
the accounts were owned by individuals and not by a corporation. The evidence
introduced at trial established that Philippe Rene, Dekkers, and Ana had all signed
Form W-8BENs for the Citibank accounts between 2000 and 2011. On each form
that he signed, Philippe Rene swore that the Citibank accounts were owned by
individuals and not by a company.
9
Manuel Tron, a Mexican attorney whose practice focuses on Mexican
corporate taxation and the financial reporting obligations of Mexican corporations,
testified regarding Mercantil Murcia’s claim to the Citibank account funds. Tron
began by testifying regarding Philippe Rene’s authority to control Mercantil
Murcia. Tron testified that based on his review of Mercantil Murcia’s corporate
records, Philippe Rene had no authority to act on behalf of Mercantil Murcia prior
to November 2010. Tron also testified that he found no documentary evidence that
Philippe Rene was the president of Mercantil Murcia. According to Tron, Mexican
law requires formal documentation confirming a person’s appointment to such a
position.
Tron also testified regarding his review of Mercantil Murcia’s Mexican tax
returns and other financial records. Tron testified that Mercantil Murcia started
filing tax returns in 2002 as required by Mexican law. 6 According to Tron, if
Mercantil Murcia owned the funds deposited in the Citibank accounts, it was
required by Mexican law to report that money as an asset on its tax returns. Tron
testified that none of the Mercantil Murcia tax returns he reviewed listed the
Citibank accounts as an asset. In addition, Tron testified that Mercantil Murcia’s
tax returns established that it never had total assets approaching the amount of
money deposited in the Citibank accounts. Tron concluded that Mercantil
Murcia’s tax returns were completely inconsistent with appellants’ claim that the
Citibank accounts belonged to Mercantil Murcia.
Tron opined that Mercantil Murcia’s financial statements were also
inconsistent with appellants’ claim. According to Tron, Mexican law requires
corporations to maintain financial statements. He testified that if the money in the
Citibank accounts belonged to Mercantil Murcia, that should have been reported in
6
Tax returns for 2002, 2004, 2006, 2007, 2009, and 2010 were admitted into evidence.
10
Mercantil Murcia’s financial statements. Tron testified that after examining all of
the financial statements produced by appellants, he determined that the Citibank
accounts were not reported. Tron also determined that Mercantil Murcia’s
financial statements did not report that it had earned net profits or had cash on hand
sufficient to support its claim that it owned the funds deposited in the Citibank
accounts.
Finally, Tron testified regarding one additional type of financial record he
would have expected to find in Mercantil Murcia’s records if the money in the
Citibank accounts belonged to Mercantil Murcia and if the ledger actually recorded
Mercantil Murcia transactions. According to Tron, Mexican law requires a
company earning a commission to issue an invoice documenting that income.
Tron explained that Mexican tax law requires a company to keep these invoices for
five years. Tron testified that he found no invoices reporting the commissions
Mercantil Murcia allegedly earned on the transactions reported in the ledger.
Tron concluded his testimony by opining that, after hearing the trial
testimony and reviewing the documents produced in the case, there was no
evidence that Mercantil Murcia owned any of the funds deposited in the Citibank
accounts.
At the conclusion of the evidence, the jury returned a verdict in favor of Ana
on the issues relevant to this appeal. Among other things, the jury: did not find
that the Citibank accounts operated as a constructive trust for the benefit of
Mercantil Murcia; found that Dekkers lacked mental capacity when he signed the
May 18 letter and the May 19 form and that he signed them as a result of undue
influence; found that Philippe Rene tortiously interfered with Ana’s inheritance
rights and awarded her $30,000 in damages; and found the amount of reasonable
and necessary fees of Ana’s and Philippe Rene’s attorneys.
11
Based on the jury’s verdict, the trial court signed a judgment that Philippe
Rene and Mercantil Murcia take nothing. The court awarded Ana $30,000 in
damages for tortious interference as well as attorneys’ fees of $550,000 for trial
and $60,000 for appeal. The court also declared that the Citibank checking and
savings accounts were joint accounts with right of survivorship and ordered
Citibank to distribute half of the money in those accounts to Ana and half to
Philippe Rene, with certain deductions from Philippe Rene’s share to cover Ana’s
damages and most of her attorneys’ fees. Finally, the trial court declared that the
Citigroup investment account belonged to Dekkers’ estate, and it authorized Ana
(as executor) to reimburse herself individually from this account for the remainder
of her attorneys’ fees and for her expert costs. This appeal followed.
ANALYSIS
Appellants bring five issues on appeal. We address each issue in turn.
I. Appellants have not established that they are entitled to a new trial as a
result of the court reporter losing her certification.
In their first issue, appellants argue they are entitled to a new trial because
the official court reporter of the probate court lost her certification before the trial
began. Appellants begin their argument by citing former section 52.021(a) of the
Texas Government Code, which provided that “a person may not be appointed an
official court reporter . . . unless the person is certified as a shorthand reporter by
the supreme court.” Act of June 12, 1985, 69th Leg., R.S., ch. 480, § 1, 1985 Tex.
Gen. Laws 1988 (amended and re-designated 2013) (current version at Tex. Gov’t
Code Ann. § 154.101 (West Supp. 2014)). In appellant’s view, the undisputed fact
that the official court reporter lost her certification prior to trial is equivalent to the
reporter’s record being lost or destroyed, and as a result there is no reporter’s
record and a new trial is required. See Tex. R. App. P. 34.6(f) (providing that if an
12
appellant can establish that a significant exhibit or portion of a court reporter’s
notes and records have been lost or destroyed and the parties cannot agree to a
replacement, the appellant is entitled to a new trial).
Appellants also argue that even if there were a valid reporter’s record, they
are still entitled to a new trial because there are numerous inaccuracies in that
record. In making this argument, appellants once again rely on Rule 34.6 of the
Texas Rules of Appellate Procedure. We disagree that either argument establishes
that appellants are entitled to a new trial.
We begin with appellants’ argument that they are entitled to a new trial
because there is no reporter’s record. Appellants focus on the first section of the
statute establishing the requirement that an official court reporter of a trial court in
Texas must be certified. See Act of June 12, 1985, 69th Leg., R.S., ch. 480, § 1,
1985 Tex. Gen. Laws 1988 (amended 2013). But another part of the same statute
charges the Court Reporters Certification Board 7 with the responsibility for
enforcing the certification requirement. See Act of June 19, 1993, 73d Leg., R.S.,
ch. 1037, § 1, 1993 Tex. Gen. Laws 4451 (amended and re-designated 2013)
(current version at Tex. Gov’t Code Ann. § 154.101 (West Supp. 2014) (“The
board may enforce this section by seeking an injunction or by filing a complaint
against a person who is not certified by the supreme court in the district court of
the county in which that person resides or Travis County. Said action for an
injunction shall be in addition to any other action, proceeding, or remedy
authorized by law. The board shall be represented by the attorney general and/or
the county or district attorney of this state, or counsel designated and empowered
by the board.”). Once appellants discovered the court reporter had lost her
7
Effective September 1, 2014, the Judicial Branch Certification Commission assumed all
duties previously performed by the Court Reporters Certification Board.
13
certification, the statute indicates that their recourse was to report that fact to the
Court Reporters Certification Board or the local county attorney or district attorney
so they could seek an injunction or other authorized remedy, 8 not to raise the issue
on appeal as a basis for a new trial. Id.
Moreover, we disagree with appellants’ premise that there is no reporter’s
record of the trial proceedings as a result of the official court reporter losing her
certification before trial. It is undisputed that a voluminous reporter’s record was
filed in this appeal. That record was prepared from the previous court reporter’s
notes and was certified as a true and correct transcription of the trial proceedings
by Hipolita Lopez, the current official court reporter for the probate court. 9 Thus,
the record as a whole has not been lost or destroyed as required for appellants to
obtain a new trial under Rule 34.6(f).
We also conclude that appellants have not established their entitlement to a
new trial on the ground that a significant trial exhibit or portion of the reporter’s
record is missing. Appellants initially point out that two witnesses, Dr. Trinh and
Warren Wills (one of appellants’ attorneys), are not listed in the Master
Chronological Index and Alphabetical Witness Index. Appellants are correct with
respect to the Alphabetical Witness Index, but both witnesses are listed in the
Master Chronological Index, and—most importantly—their testimony is included
in the reporter’s record. Appellants do not argue that even a portion of either
witness’s testimony is missing. Under these circumstances, we conclude the
8
For present purposes, we need not decide whether the certification requirement could
also be enforced through a quo warranto action alleging that the court reporter was unlawfully
holding her office. See Tex. Civ. Prac. & Rem. Code Ann. § 66.001 (West 2008). Such an
action must be filed by the attorney general or the county or district attorney of the county where
the court is located. Id. § 66.002.
9
The exact certification provides: “I, Hipolita Lopez, certify that the foregoing is a true
and correct transcription, to the best of my ability, of the stenographer’s notes and transcription
of the proceedings held as provided to me by [the previous reporter] in the above matter.”
14
Alphabetical Witness Index is not a significant portion of the record, and thus the
omission of these witnesses from that index does not require a new trial. See Tex.
R. App. P. 34.6(f) (requiring that a significant portion of the reporter’s record be
lost or destroyed for an appellant to be entitled to a new trial).
Appellants next argue they are entitled to a new trial because the jury sent
out a question regarding the absence of the second notebook of appellants’ trial
exhibits. 10 In response to the jury’s question, the court reporter commented that
notebook 2 was not sent back because none of its contents were admitted into
evidence. Appellants assert this comment shows that three exhibits originally
placed in notebook 2 that were admitted into evidence—plaintiffs’ exhibits 86, 87,
and 88—were not sent back to the jury during deliberations.
The handling of this jury question does not entitle appellants to a new trial
for several reasons. First, appellants agreed to—and in fact suggested—the trial
court’s answer to the jury’s question: “[t]here is no Number 2 and only two
notebooks. These are the only exhibits admitted into evidence on behalf of
plaintiffs.” During this discussion between the trial court and the parties’
attorneys, appellants did not argue that the jury’s question meant that the three
admitted exhibits had not been sent back to the jury along with all of the other
admitted exhibits. Moreover, one of appellants’ attorneys examined the exhibits
before they were sent back to the jury and agreed and confirmed on the record that
they were the admitted exhibits and should go to the jury for their deliberations.
Finally, appellants do not argue that exhibits 86, 87, and 88 are missing from the
reporter’s record; nor could they, because the exhibits are found in volume 11.
Therefore, even if the three exhibits were not sent back to the jury for its
10
Appellants placed their proposed exhibits into three consecutively numbered
notebooks. It is undisputed that notebooks 1 and 3 were sent back to the jury during
deliberations.
15
deliberations, Rule 34.6(f) would not provide a basis for a new trial. See Tex. R.
App. P. 34.6(f) (providing, in part, that an appellant is entitled to a new trial if a
significant exhibit is missing from the reporter’s record).
Appellants also seek a new trial because the reporter’s record does not
contain any of the parties’ discussions regarding how to respond to two additional
questions from the jury. The two questions were included as exhibits in the
reporter’s record. Both questions addressed what turned out to be typographical
mistakes in the jury charge. We conclude appellants have not established that the
discussions, if any, regarding how to respond to the two jury questions are
necessary to the resolution of this appeal as required by Rule 34.6(f)(3). See Tex.
R. App. P. 34.6(f)(3). Therefore, this omission, if any, does not entitle them to a
new trial. Town of Flower Mound v. Teague, 111 S.W.3d 742, 766 (Tex. App.—
Fort Worth 2003, pet. denied).
Finally, appellants contend the reporter’s record is not clear at times whether
Ana was answering questions in English or whether the answer is the result of the
translator’s interpretation. But appellants have not challenged the questioned
portion of Ana’s testimony as inaccurate or missing because it has been lost or
destroyed. Thus, they have not met their burden under Rule 34.6(f) to establish
their entitlement to a new trial. In addition, even if appellants were arguing that
the court reporter inaccurately transcribed Ana’s testimony, we conclude they
would not be entitled to a new trial because they did not take advantage of the
remedy provided by the Rules of Appellate Procedure. See Tex. R. App. P. 34.6(e)
(providing that if there are inaccuracies in the reporter’s record, the parties can
correct the inaccuracy by agreement, and if the parties cannot agree, the trial court
must resolve the disagreement).
16
Having addressed and rejected each argument raised in appellants’ first
issue, we overrule that issue.
II. Appellants have not established they were harmed by any admission of
evidence in violation of the Dead Man’s Rule.
In their second issue, appellants assert the trial court erred when it admitted
evidence they contend violates the Dead Man’s Rule found in Rule 601(b) of the
Texas Rules of Evidence. See Tex. R. Evid. 601(b) (“In civil actions by or against
executors . . . in which judgment may be rendered for or against [the executor] as
such, neither party shall be allowed to testify against the others as to any oral
statement by the testator . . . unless that testimony to the oral statement is
corroborated . . . .”). Appellants specifically complain about testimony by Jorge
Halvas, Ana’s husband, regarding a conversation he had alone with Dekkers
regarding Dekkers’ desire to divide his property evenly upon his death. Appellants
argue this evidence was uncorroborated, violated the Dead Man’s Rule, and the
trial court abused its discretion when it admitted the evidence over their objection.
The admission and exclusion of evidence is committed to the trial court’s
sound discretion. Prestige Ford Co. v. Gilmore, 56 S.W.3d 73, 78 (Tex. App.—
Houston [14th Dist.] 2001, pet. denied) (citing City of Brownsville v. Alvarado,
897 S.W.2d 750, 753 (Tex. 1995)). We will reverse only if the trial court abused
its discretion by acting without reference to any guiding rules or principals or by
acting arbitrarily or unreasonably. In re R.J.P., 179 S.W.3d 181, 184 (Tex. App.—
Houston [14th Dist.] 2005, no pet.) (citing City of San Benito v. Rio Grande Valley
Gas Co., 109 S.W.3d 750, 757 (Tex. 2003)). A party seeking to reverse a
judgment based on evidentiary error must prove that the error probably resulted in
an improper judgment, which requires the complaining party to show that the
judgment turns on the particular evidence excluded or admitted. Tex. Dep’t. of
17
Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000). The exclusion of evidence is
likely harmless if the evidence was cumulative. State v. Cent. Expressway Sign
Assocs., 302 S.W.3d 866, 870 (Tex. 2009). We make this determination by
reviewing the entire record. Prestige Ford Co., 56 S.W.3d at 78.
Even if we were to assume without deciding that Halvas’s challenged
testimony violates the Dead Man’s Rule, we conclude appellants have not
demonstrated that they were harmed by its admission because the testimony was
cumulative of other evidence that was admitted without objection. This evidence
includes Ana’s testimony about Dekkers’ statements that he wished to split the
accounts between her and Philippe Rene, as well as Dekkers’ 2011 will, which had
been admitted to probate without contest. The will divided Dekkers’ accounts
equally between his two children. See Huffman v. Huffman, 339 S.W.2d 885, 888
(Tex. 1960) (stating that the intent of the testator must be determined from the
words used in the will); In re Craft Estate, 358 S.W.2d 732, 733 (Tex. Civ. App.—
Amarillo 1962, writ ref’d n.r.e.) (“A written will is generally defined as an
instrument by which a person makes a disposition of his property, to take effect
after his death, and which by its own nature is ambulatory and revocable during his
lifetime.”). Because appellants have not shown they were harmed as a result of the
admission of the challenged testimony, we overrule their second issue on appeal.
See Tex. R. App. P. 44.1(a).
III. Appellants waived their third issue.
In their third issue, appellants contend the trial court committed reversible
error when it submitted issues of malice, undue influence, and duress because the
submission of these questions “so badly tainted the jury’s perception of the facts
that it caused the jury to return incorrect answers.” The Rules of Appellate
Procedure require that a brief contain a clear and concise argument for the
18
contentions made, with appropriate citations to legal authority and the record. Tex.
R. App. P. 38.1(i). Appellants failed to cite any legal authority in support of their
third issue. Therefore, we conclude they have waived this issue and we overrule it.
Id., see Collins v. Walker, 341 S.W.3d 570, 575 (Tex. App.—Houston [14th Dist.]
2011, no pet.) (applying Tex. R. App. P. 38.1(i)).
IV. The evidence is factually sufficient to support the judgment.
In their fourth issue, appellants challenge the factual sufficiency of the
evidence supporting the jury’s answers to five questions in the charge.11 We
address each challenge separately.
A. Standard of review
In reviewing the factual sufficiency of the evidence, we must examine the
entire record, considering both the evidence in favor of, and contrary to, the
challenged findings. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–
07 (Tex. 1998); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When a party
attacks the factual sufficiency of an adverse finding on which it had the burden of
proof, it must demonstrate on appeal that the adverse finding is against the great
weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d
237, 242 (Tex. 2001). When a party challenges the factual sufficiency of the
evidence supporting a finding for which it did not have the burden of proof, we
may set aside the verdict only if it so contrary to the overwhelming weight of the
11
Appellants do not expressly state that they are challenging the factual sufficiency of the
evidence, though they do refer to the weight of the evidence. In this circumstance, we may
examine their brief’s prayer for relief to determine what standard of review to use to resolve their
issue on appeal. See Benevente v. Granger, 312 S.W.3d 745, 747 (Tex. App.—Houston [1st
Dist.] 2009, no pet.). In their prayer for relief, appellants ask only that we reverse and remand
the case for a new trial. Because remand is the normal remedy when the evidence is factually
insufficient, we construe appellants’ fourth issue as a challenge to the factual sufficiency of the
evidence, not to its legal sufficiency. Id. In any event, because we determine that the evidence is
factually sufficient to support the jury’s answers, we conclude it is legally sufficient as well.
19
evidence as to be clearly wrong and unjust. See Ellis, 971 S.W.2d at 407; Nip v.
Checkpoint Systems, Inc., 154 S.W.3d 767, 769 (Tex. App.—Houston [14th Dist.]
2004, no pet.). When there is no objection to the charge, we measure the
sufficiency of the evidence according to the charge submitted to the jury. Garza v.
Cantu, 431 S.W.3d 96, 103 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).
If we determine the evidence is factually insufficient, we must detail the evidence
relevant to the issue and state in what regard the contrary evidence greatly
outweighs the evidence in support of the verdict; we need not do so when
affirming a jury’s verdict. Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680,
681 (Tex. 2006) (per curiam).
We are not a finder of fact. Ellis, 971 S.W.2d at 407. Accordingly, we may
not pass upon the witnesses’ credibility or substitute our judgment for that of the
jury, even if the evidence would support a different result. Id. Instead, the jury is
the sole judge of the credibility of the witnesses and the weight to be given their
testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.
2003). In addition, the jury is not bound by the testimony of an interested witness
merely because it is uncontradicted. Preston Reserve, L.L.C. v. Compass Bank,
373 S.W.3d 652, 657 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The
testimony of an interested witness may establish a fact as a matter of law only if
the testimony could readily be contradicted if untrue, it is clear, direct and positive,
and there are no circumstances tending to discredit it. Id. at 657–58. When
presented with conflicting evidence, a jury may believe one witness and disbelieve
others, and it also may resolve inconsistencies in the testimony of any witness. Id.
at 658 (citing McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986)).
20
B. Appellants have not established that the evidence supporting the
jury’s answers to Questions 1(a) and 1(b) is factually insufficient.
Appellants begin their fourth issue by arguing the evidence supporting the
jury’s negative answers to Questions 1(a) and 1(b), on which they had the burden
of proof, is factually insufficient. Question 1 asked:
Do you find that the Citibank Accounts operated as a Constructive
Trust for the benefit of Mercantil Murcia, S.A. de C.V.?
Question 1(a): Based on a confidential and/or a fiduciary
relationship and promise between [Dekkers] and Mercantil Murcia,
S.A. de C.V.?
Answer “yes” or “no”: No
Question 1(b): Based on a confidential and/or a fiduciary
relationship and promise between [Philippe Rene] and Mercantil
Murcia, S.A. de C.V.?
Answer “yes” or “no”: No
Question 1(c): Based on a confidential and/or a fiduciary
relationship and promise between [Ana] and Mercantil Murcia, S.A.
de C.V.?
Answer “yes” or “no”: No
The question then instructed the jury
that a constructive trust exists if there (1) was a confidential and/or
fiduciary relationship; (2) a promise by that person to hold an amount
of funds in the Citibank Accounts for the benefit of Mercantil Murcia,
S.A. de C.V.; (3) a transfer and/or deposit of money into the Citibank
Accounts in reliance on the promise; and (4) an unjust enrichment to
another if Mercantil Murcia, S.A. de C.V. was deprived of its
ownership interest in the money in the Citibank Accounts.
Finally, the question defined Citibank Accounts to include the checking, savings,
and investment accounts.
According to appellants, the only items of evidence in the record related to
Questions 1(a) and 1(b) were (1) Philippe Rene’s testimony that the Citibank
21
accounts were operated as a constructive trust for the benefit of Mercantil Murcia
and that all funds in those accounts came exclusively from Mercantil Murcia, (2)
the ledger, and (3) the documents Philippe Rene testified backed-up the ledger
entries. Appellants then assert that this evidence was uncontradicted and therefore
we must reverse the judgment because a jury cannot disregard uncontradicted
facts. In making this argument, appellants do not challenge the sufficiency of the
evidence supporting the jury’s negative answer to Question 1(c). 12 They also do
not mention the definition of constructive trust found in the Charge and offer no
explanation of how the allegedly uncontradicted evidence establishes each element
of a constructive trust.
Ana responds that there was abundant evidence introduced during the trial
that contradicted Philippe Rene’s testimony as well as the ledger and the
supporting documents. We agree with Ana. This evidence includes, but is not
limited to, the undisputed fact that the three accounts were not held in Mercantil
Murcia’s name. This evidence was reinforced by the Form W-8BENs introduced
into evidence, which stated that the funds in the Citibank accounts were owned by
individuals and not by a corporation.
The evidence also includes expert and fact witness testimony addressing the
accounts. Perez, an American tax attorney, testified that the United States
government requires foreign depositors to complete Form W-8BENs confirming
under penalties of perjury that the account is owned by the signer individually and
not by a company. The jury also heard testimony from Tron, a Mexican attorney
12
In her brief, Ana argues that we must affirm the judgment because appellants did not
challenge the sufficiency of the evidence supporting all three sub-questions submitted to the jury
as part of Question 1. In Ana’s view, for appellants to be successful on their constructive trust
cause of action, they were required to obtain affirmative answers to all three sub-questions found
within Question 1. Because we overrule appellants’ argument in the first part of their fourth
issue on other grounds, we do not reach this contention. See Tex. R. App. P. 47.1.
22
specializing in Mexican tax law and corporate governance, that Mercantil Murcia’s
tax returns and mandatory financial statements do not disclose it had Citibank
accounts in New York.
The evidence also includes Gonzalez’s testimony that he was the Citibank
private banker assigned to the accounts, that it was his understanding that the
money in the accounts were personal funds, that Dekkers never suggested that the
funds in the accounts were anything other than his personal funds, and that he had
never heard of Mercantil Murcia until the litigation was underway. The jury heard
Ana’s testimony that the money in the Citibank accounts belonged to her father
and Philippe Rene’s admission that he had never personally deposited any money
into the Citibank accounts. Philippe Rene also testified that Mercantil Murcia had
its own Citibank account in Los Angeles.
There was also extensive documentary evidence contradicting appellants’
theory. In addition to the W-8BENs discussed above, this evidence included the
ledger itself. It never references Mercantil Murcia and it contains entries predating
the formation of Mercantil Murcia by as much as five years. In addition, Philippe
Rene’s testimony during the trial regarding Mercantil Murcia and the ledger’s
origins and contents contained many inconsistencies. These included: (1) the name
Mercantil Murcia was not found anywhere in the ledger; (2) the ledger contained
entries predating the formation of Mercantil Murcia by as much as five years; (3)
the ledger did not explain how the Citibank accounts had $2.1 million deposited in
them prior to Mercantil Murcia’s 2002 formation; (4) Philippe Rene testified that
he was not added as a signatory on the Citibank accounts until 2003, a year after he
testified all deposits into the account were made with Mercantil Murcia’s funds;
(5) appellants did not introduce into evidence documents, such as purchase orders,
invoices, and deposit slips, connecting each ledger entry to Mercantil Murcia; (6)
23
the three packages of documents appellants did offer into evidence in support of
their claim the ledger documented Mercantil Murcia transactions did not mention
Mercantil Murcia; (7) Mercantil Murcia’s annual balance sheets and Mexican tax
returns that were admitted into evidence during the trial never reported more than
$110,000 cash in the bank and did not report any money deposited in foreign bank
accounts; (8) Philippe Rene admitted he had not matched any deposits listed in the
ledger with deposits reported on Citibank account statements; (9) appellants
offered no explanation for the ledger entries ending in October 2010, the month
Dekkers left Mexico for surgery in the United States; (10) there is no record in the
ledger of the advances Philippe Rene testified Mercantil Murcia would regularly
make to clients; and (11) Philippe Rene admitted Mercantil Murcia maintained its
own Citibank account in Los Angeles, California that could have been used for
deposits of funds generated by its international transactions.
Appellants also offered no explanation for the undisputed fact that the
Citibank accounts already had deposits of more than $2 million at the time
Mercantil Murcia was formed. Documents were also admitted into evidence
demonstrating that Dekkers deposited money into the accounts under his own
name and that he had deposited checks into the accounts that had been written by
Mercantil Murcia and were payable to him.
Faced with this conflicting evidence, the jury was allowed to believe the
testimony of one witness and disbelieve the testimony of others. The jury was also
empowered to resolve any inconsistencies in the evidence and witness testimony.
Preston Reserve, L.L.C., 373 S.W.3d at 658. Its decision to resolve these questions
against appellants does not render the evidence insufficient. Having considered all
of the evidence, we conclude the jury’s negative answers to Questions 1(a) and
1(b) are not against the great weight and preponderance of the evidence.
24
C. New York law and the account agreements render Jury Questions
3 and 4 immaterial.
Appellants next challenge the factual sufficiency of the evidence supporting
the jury’s answers to Questions 3 and 4 of the charge, on which Ana had the
burden of proof. In response to Question 3, the jury found that Dekkers lacked
mental capacity when he signed the May 18, 2011 note purporting to give Philippe
Rene the sole authority to sign checks and the May 19, 2011 form directing
Citibank to remove Ana’s name from the accounts. In Question 4, the jury found
that Dekkers signed the same documents as a result of undue influence. Ana
responds that (1) there is sufficient evidence supporting the jury’s answers; and (2)
even if the evidence were insufficient, appellants would not be entitled to a new
trial because a valid signature by Dekkers could not remove Ana’s interest in the
accounts under New York law. We agree with Ana’s second argument and
therefore need not address her first.
A jury finding may be disregarded if it is unsupported by the evidence or if
the issue is rendered immaterial. Nat’l City Bank of Ind. v. Ortiz, 401 S.W.3d 867,
883 (Tex. App.—Houston [14th Dist.] 2013, pet. denied.). Among other reasons, a
jury question is considered immaterial when its answer cannot alter the effect of
the verdict. Id.
Pursuant to the account agreements, as well as New York law, the Citibank
accounts were joint accounts with right of survivorship. See N.Y. Banking Law
§ 675 (McKinney 2011). It is undisputed Ana was one of the joint owners of the
accounts. Under New York law, once Ana was added as a joint owner of the
accounts, she possessed an immediate interest in a proportionate share of the funds
in the accounts. See In re Covert, 761 N.E.2d 571, 576 (N.Y. 2001) (citing Brown
v. Bowery Sav. Bank, 415 N.E.2d 906 (N.Y. 1980)). Therefore, no one, including
25
Dekkers, could divest Ana of her ownership interest by removing her name from
the accounts. See Brown, 415 N.E.2d at 908; Lopez v. Fenn, 937 N.Y.S.2d 1, 3–4
(N.Y. App. Div. 2011). Gonzalez’s testimony confirmed that the Citibank account
agreements were consistent with these legal principles. According to Gonzalez,
Citibank reserved the right to require all account owners to approve the removal of
an owner from a joint account. He further testified that Citibank always followed
this procedure.
Because neither the May 18 note nor the May 19 form included Ana’s
signature approving her removal as an owner of the accounts, even if the jury had
answered “no” to both questions, the answers would not have altered the effect of
the verdict. Therefore, we conclude Questions 3 and 4 are immaterial, and we
need not address appellants’ challenge to the sufficiency of the evidence
supporting the jury’s affirmative answers to those questions. See Tex. R. App. P.
47.1.
D. There is factually sufficient evidence supporting the jury’s
determination that Philippe Rene tortiously interfered with Ana’s
inheritance rights.
Appellants next challenge the factual sufficiency of the evidence supporting
the jury’s determination that, in answer to Question 6, Philippe Rene tortiously
interfered with Ana’s inheritance rights. 13 Appellants begin with the assertion that
Ana’s tortious interference cause of action was based exclusively on Philippe Rene
13
In Question 6 the jury was instructed that tortious interference with inheritance rights
occurs when (1) a party has an expectancy of inheritance or gift; (2) there is a reasonable
certainty that the expectancy would have been realized but for the interference; (3) the inference
was intentional and done without just cause or excuse; (4) the interference took the form of
conduct such as fraud, duress, or undue influence; and (5) damages result from the interference.
The jury was also instructed that “fraud, misconduct, an illegal action and intentional invasion of
or interference with property or property rights, causing injury without just cause or excuse,
constitute tortious or wrongful acts.” Appellants did not object to these instructions.
26
initiating this litigation. They go on to argue that the filing of a lawsuit cannot
serve as the basis for a tortious interference claim. Because the record contains
evidence supporting Ana’s tortious interference claim that predates Philippe
Rene’s filing of this lawsuit, we disagree.
This pre-litigation conduct includes Philippe Rene (1) orchestrating the
preparation and sending of the May 18, 2011 note to Citibank attempting to limit
check writing privileges only to himself; (2) sending the May 19, 2011 form to
Citibank even after Ana had refused to sign the document authorizing her removal
as an owner on the accounts; (3) admitting that he contacted Citibank regarding his
desire that the Citibank accounts be divided seventy-five percent to him and
twenty-five percent to Ana; (4) asking Citibank to liquidate the entire investment
account on May 20, 2011; and (5) writing himself a $2.5 million check 14 on the
Citibank checking account the day after he was unsuccessful at obtaining Ana’s
signature on the May 19 form. In light of this proof of Philippe Rene’s efforts to
interfere with Ana’s inheritance rights, we conclude the evidence supporting the
jury’s affirmative answer to Question 6 is factually sufficient.
E. The evidence supporting the award of Ana’s attorneys’ fees and
costs is factually sufficient.
In their final sufficiency challenge, appellants contend the evidence is
insufficient to support the full award of attorneys’ fees in the judgment. The jury
found that Ana’s reasonable and necessary attorneys’ fees were $550,000, and the
trial court determined that an award in this amount was equitable and just. The
judgment specifically allocated those fees as follows: (1) it awarded Ana,
individually, $363,510 in attorneys’ fees to be paid out of Philippe Rene’s share of
14
The check was written for an amount equal to the approximate total amount in the
account on that day.
27
the Citibank checking and savings accounts, and (2) it directed Ana, as executor of
Dekkers’ estate, to pay herself, individually, $186,490 to reimburse her for
attorneys’ fees and costs incurred as a result of the litigation. In a table at the end
of its judgment, the trial court separated this second amount into $86,490 of
attorneys’ fees and $100,000 of “costs assoc. with Experts.”
Appellants argue the attorneys’ fee award should be reduced by $100,000 to
$450,000 because it includes the improper recovery of expert witness expenses.
Appellants only argument on appeal is that the judgment’s inclusion of expert
witness expenses was improper because they cannot be recovered as court costs.
It is generally true that a party may not recover expert witness fees as court
costs. See May v. Ticor Title Ins., 422 S.W.3d 93, 106 (Tex. App.—Houston [14th
Dist.] 2014, no pet.) We conclude, however, that the trial court did not award Ana
expert witness fees as court costs or pursuant to the Uniform Declaratory Judgment
Act. We conclude instead that the trial court had authority under former section
242 of the Texas Probate Code to reimburse Ana for the expert witness fees she
incurred as a result of the lawsuit filed by Philippe Rene. See Act of April 4, 1955,
54th Leg., R. S., ch. 55, § 242, 1955 Tex. Gen. Laws 88, 161, repealed by Act of
June 19, 2009, 81st Leg., R. S., ch. 680, § 10, 2009 Tex. Gen. Laws 1512, 1731
(current version at Tex. Estates Code § 352.051 (West 2014)). Former section 242
permits Ana, as the executor of Dekkers’ estate, to recover all necessary and
reasonable expenses she incurred in connection with the preservation, safekeeping,
and management of the estate. Id. Ana’s attorney testified that Ana had incurred
$446,000 in attorneys’ fees prior to the trial even being completed and $100,000 in
fees owed to the two expert witnesses, both of whom were attorneys, as a direct
result of the litigation started by Philippe Rene.
Appellants do not challenge the factual sufficiency of the evidence
28
supporting the jury’s finding that these fees were reasonable and necessary, or the
trial court’s determination that awarding these fees was equitable and just.15
Instead, they argue solely that the fees of attorney expert witnesses are not
recoverable as costs. Because such fees are recoverable under former section 242
of the Probate Code, however, we conclude that the judgment need not be modified
to remove the expert component of the fee award.
Having addressed and rejected each argument raised in appellants’ fourth
issue, we overrule that issue.
V. Appellants’ challenges to the trial court’s legal rulings fail.
In their fifth issue, appellants raise four separate sub-issues asserting that the
trial court erred. We address each sub-issue in turn.
A. The trial court did not err when it ruled the investment account
was not a joint account with rights of survivorship.
Appellants begin their first sub-issue by asserting that the trial court erred
when it concluded that the investment account was not a joint account with right of
survivorship and instead was part of Dekkers’ estate. Before trial, the court
granted a partial summary judgment that there was no presumption of survivorship
as to the investment account. At trial, the parties stipulated that whether the
accounts were joint accounts with right of survivorship would be determined by
the trial court rather than the jury.
15
Appellants also do not raise any complaint on appeal regarding the procedure of
submitting a single question to the jury encompassing the fees of the attorneys representing Ana
as well as the fees paid to Ana’s attorney experts. Accordingly, we express no view on the
propriety of this procedure. At the charge conference, the parties stipulated that the jury’s
finding of fees would be “a cap” and that the further determination of what award would be
equitable and just and what amount was incurred for the preservation of the estate would be
made by the trial court.
29
On appeal, appellants make a single argument in support of their first sub-
issue. They begin by contending that the only evidence in the trial record
regarding the character of the investment account was the testimony of Sandino
Gonzalez, the Citibank representative. In appellants’ view, Gonzalez testified
without contradiction that the accounts at issue in this case were joint accounts
with right of survivorship. They go on to argue that because Gonzalez’s testimony
was not contradicted, it must be taken as true.
Appellants do not challenge the trial court’s partial summary judgment
ruling or address the evidence submitted in connection with that ruling. Regarding
the evidence they do address, we conclude Gonzalez never unambiguously testified
that the investment account was a joint account with right of survivorship.
Gonzalez testified that he was the private banker working at Citibank assigned to
Dekkers. Although Gonzalez agreed that the Citigold Private Client terms and
conditions—including the right-of-survivorship provision—applied to all of the
subject accounts, he later testified that the investment account was with Citigroup,
a different institution. He went on to testify that he was not familiar with the terms
of that particular account application form. Because Gonzalez’s testimony is
internally conflicting, the trial court, as the stipulated fact finder, was free to
believe that Gonzalez did not know what terms governed the investment account.
Therefore, the record does not support appellants’ only contention in their first sub-
issue, and we overrule that sub-issue.
B. The trial court committed no error when it refused to declare that
Ana was no longer an owner of the Citibank accounts.
In their second sub-issue, appellants assert that the trial court erred when it
did not declare that Ana was no longer an owner of the Citibank accounts as of
May 19, 2011, the day Philippe Rene sent the form directing Citibank to remove
30
Ana as an owner of the checking account. Appellants do not dispute that Citibank
had the authority under the parties’ agreement to require signatures from all
account holders before making title changes in an account. Instead, they suggest
that a joint account owner’s right to instruct Citibank to remove another owner
from the joint account is a substantive right and takes priority over Citibank’s
contractual right to require signatures from all account owners before it will
remove an account owner, which appellants suggest is merely a procedural right.
Appellants offer no authority supporting this contention. Instead, the legal
authority they cite stands for the unremarkable proposition that under New York
law, when the parties set out their agreement clearly and completely, it should be
enforced according to its terms. See Riverside South Planning Corp. v. CRP/Extell
Riverside, L.P., 920 N.E.2d 359, 363 (N.Y. 2009); Ins. Co. of New York v. Central
Mut. Ins. Co., 850 N.Y.S.2d 56, 58 (N.Y. App. Div. 2008).16 We conclude that
under the plain language of the Citibank account agreements, Citibank had the
16
The third case cited by appellants, Christy v. Primo, is an equitable proceeding in
which the plaintiff sought specific performance of a real estate purchase agreement. 194 A.D.2d
910, 911 (N.Y. App. Div. 1993). The purchasers sent timely notice canceling the agreement by
fax and regular mail. Id. The agreement required that notice of cancellation be sent by certified
or registered mail. Id. It was undisputed that the plaintiff received the notice of cancellation. Id.
The trial court awarded specific performance. Id. The appellate court began its analysis by
observing that a court, in equitable proceedings, can look beyond technical formalities in
contracts and ascertain whether the substance was met. Id. It went on to observe that it was
undisputed that the only purpose of the specific notice requirement was to ensure that notice was
promptly received and that it was undisputed the plaintiff had timely received the purchaser’s
cancellation notice. Id. It then reversed the trial court’s judgment because the “plaintiffs’ hands
were not sufficiently ‘clean’ to be entitled to the equitable relief granted by [the trial court].” Id.
at 11–12.
Christy is distinguishable because a declaratory judgment action is neither legal not
equitable, but sui generis. See Space Master Int’l, Inc. v. Porta-Kamp Mfg. Co., 794 S.W.2d
944, 947 (Tex. App.—Houston [1st Dist.] 1990, no writ). Moreover, Christy does not indicate
that a contractual provision requiring consent before removing a joint account holder from an
account is merely a technical formality. Rather, that requirement is grounded in New York’s
recognition that simply removing the holder’s name will not divest her of her ownership interest.
See Part IV.C., supra.
31
discretionary authority to require the signatures of all account owners before
removing an owner from the account, which it exercised here. In any event, as
explained in Part IV.C. above, Philippe Rene could not divest Ana of her
ownership interest under New York law by removing her name from the accounts
without her consent. Because appellants did not obtain and submit all account
owners’ signatures to Citibank, we conclude the trial court did not err when it
refused to declare that Ana was no longer an owner of the Citibank accounts.
C. The trial court did not err when it refused to order Citibank to
pay the $2.5 million check written by Philippe Rene.
Next, appellants argue the trial court erred when it refused to order Citibank
to pay the $2.5 million check Philippe Rene wrote to himself two days before his
father’s death. Because appellants dismissed their claims against Citibank with
prejudice prior to trial, we conclude the trial court did not err when it refused to
order Citibank to pay the $2.5 million check to Philippe Rene. To the extent
appellants contend Ana had an unspecified contractual duty to honor the $2.5
million check, we disagree. Appellants do not explain how Ana had any duty—
contractual or otherwise—to honor the $2.5 million check and ensure that it was
paid. Accordingly, we hold the trial court did not err when it refused to order Ana
to ensure Citibank honored the $2.5 million check. See Tex. R. App. P. 38.1(i)
(requiring that appellant’s brief contain clear and concise argument for the
contentions made).
D. Appellants have not shown that the trial court abused its
discretion by not awarding them attorneys’ fees.
In their final sub-issue, appellants contend the trial court abused its
discretion when it did not award them any attorneys’ fees in the final judgment.
While appellants correctly point out that a party need not prevail to be awarded
attorneys’ fees pursuant to the Uniform Declaratory Judgments Act, they also
32
recognize that it is within the trial court’s discretion to award “reasonable and
necessary attorney’s fees as are equitable and just.” Tex. Civ. Prac. & Rem. Code
Ann. § 37.009 (West 2008); see Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.
1998); Bank of N. Y. Mellon v. Soniavou Books, L.L.C., 403 S.W.3d 900, 907 (Tex.
App.—Houston [14th Dist.] 2013, no pet.). Under this statute, “the court may
conclude that it is not equitable or just to award even reasonable and necessary
fees.” Bocquet, 972 S.W.2d at 21. Generally, a trial court abuses its discretion
when it misinterprets or misapplies the law or acts arbitrarily or unreasonably.
Tanglewood Homes Ass’n v. Feldman, 436 S.W.3d 48, 76 (Tex. App.—Houston
[14th Dist.] 2014, pet. filed).
Although the jury found the amount of appellants’ reasonable and necessary
attorneys’ fees for representation in the trial court, we see nothing inequitable or
unjust in the trial court’s decision not to award those fees to appellants. 17 There
was no finding by the jury or the trial court in favor of appellants on any of the
affirmative theories they asserted or declarations they sought, with one exception:
the court did declare that two of the accounts were joint accounts with right of
survivorship. But the court declined to declare Philippe Rene the sole owner of the
accounts as he requested, and it awarded him less than half of the funds in each
account after compensating Ana for her attorneys’ fees. In addition, the jury found
that Philippe Rene tortiously interfered with Ana’s inheritance rights and awarded
her damages. Considering the record as a whole, we conclude appellants have not
demonstrated that the trial court abused its discretion when it awarded Ana, and
not appellants, attorneys’ fees. See Tex. Health Care Ass’n v. Health & Human
Servs. Comm’n, 949 S.W.2d 544, 548 (Tex. App.—Austin 1997, no writ)
(reviewing equity and justice of trial court’s decision not to award fees under abuse
17
The trial court did award appellants their attorneys’ fees for representation on appeal in
the event they prevailed.
33
of discretion standard in light of the record).
CONCLUSION
Having overruled all issues raised by appellants, we affirm the trial court’s
judgment.
/s/ J. Brett Busby
Justice
Panel consists of Justices McCally, Busby, and Donovan.
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