in the Matter of the Estate of Lena Jo Graffagnino

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-00-434 CV ____________________ IN THE MATTER OF THE ESTATE OF LENA JO GRAFFAGNINO, DECEASED On Appeal from the County Court at Law No. 1 Jefferson County, Texas Trial Court Cause No. 76926 OPINION Lena Jo Graffagnino ("Lena") died in July 1998. Her three adult children have litigated a variety of issues concerning her estate. The declaratory judgment in this appeal concerns Lena's accounts at five institutions. The parties dispute whether the accounts belong to Lena's son Jack Graffagnino ("Graffagnino") or to the estate of Lena Jo Graffagnino. Rose Ann Quebedeaux ("Quebedeaux") and Nickie Leah Gonsoulin ("Gonsoulin"), Lena's two other children, filed a petition for declaratory judgment and then a motion for summary judgment asking that the accounts be declared the property of the estate. Graffagnino urged the trial court to declare that four of the accounts had passed to him outside of the estate by right of survivorship, and that the fifth was his by a "pay on death" designation. The trial court held that all five accounts were property of the estate. Jack Graffagnino raises nine issues on appeal; he contends that Quebedeaux and Gonsoulin lacked standing to file the declaratory judgment action and that the trial court misapplied the law in determining ownership of the five accounts. Issue One: Standing "The general test for standing in Texas requires that there '(a) shall be a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought.'" Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996) (quoting Board of Water Engineers of the State of Texas v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722, 724 (1955)). The will which Graffagnino sought to admit to probate divides the estate (except for a store) "equally, per stirpes," between Graffagnino, Quebedeaux, and Gonsoulin. Also, if the decedent is held to have died intestate, her assets will go to Graffagnino, Quebedeaux, and Gonsoulin. Tex. Prob. Code Ann. § 38(a)(1) (Vernon 1980). Ownership of the accounts is in controversy between the parties. Quebedeaux and Gonsoulin have a direct and substantial interest in establishing through this proceeding whether the disputed accounts are part of the estate's assets. Appellant's first issue is overruled. Issue Two: Request for Reversal Graffagnino's second issue asserts generally that the trial court below erred in granting the summary judgment regarding all five accounts. We rule specifically on each account below. We sustain issue two only to the extent we sustain issue seven concerning the Huntsman Employees Federal Credit Union account and issue eight, as discussed below; in all other respects, issue two is overruled for the reasons set forth below as to each account. Issue Three: The Neches Federal Credit Union Account A signature card or deposit agreement creates a right of survivorship if it includes a written agreement signed by the decedent that "the interest of such deceased party is made to survive to the surviving party or parties." Tex. Prob. Code Ann. § 439(a) (Vernon Supp. 2002). See Allen v. Wachtendorf, 962 S.W.2d 279, 283 (Tex. App.--Corpus Christi 1998, pet. denied). Section 439(A)(b) provides a "Uniform Single-Party or Multiple-Party Account Selection Form." The form describes each type of account and the passage of the account funds upon the death of one of the parties to the account. Tex. Prob. Code Ann. § 439(A)(b)(Vernon Supp. 2002). The evidence regarding the Neches Federal Credit Union account consists of copies of the front and back of the signature card, labeled "Account Card," and a copy of a pamphlet entitled "Important Account Information for our Members[.]" The first page of the Account Card contains a designation of the account as a "Share/Savings" account, the name, address, and account information of Lena, and the signatures of both Lena and Jack Graffagnino, beneath a paragraph labeled "Authorization." The "Authorization" paragraph sets forth Jack and Lena's agreement to the "terms and conditions of the Membership and Account Agreement." The evidence also includes an affidavit from the custodian of records at the Credit Union that the "Membership and Account Agreement" referenced by the signature card is the pamphlet labeled "Important Account Designation." Under the heading "Ownership of Account and Beneficiary Designation," the pamphlet describes joint accounts with right of survivorship in the language prescribed by Section 439(A)(b) of the Probate Code. Language establishing survivorship may appear on depository agreements that are incorporated into the signature card by reference. See Wachtendorf, 962 S.W.2d at 281-83; McNeme v. Estate of Hart, 860 S.W.2d 536, 541 (Tex. App.-- El Paso 1993, no writ) (op. on mot. for reh'g). Although the Neches Credit Union forms would create an enforceable right of survivorship if appropriately completed, the forms fail to do so in this instance. On the back of the signature card there are three boxes for the account holder to check to indicate whether the account was to be single party, multiple party with survivorship, or multiple party without survivorship. None of the boxes are checked. Lena's signature appears on one line, to the right of the boxes. The line where her signature appears is to the right of the box marked "Multiple Party with Survivorship." Andrea Johnson, president of Neches Federal Credit Union, testified that, in the Credit Union's ordinary practice, a signature on the line signed by Lena would indicate that the account holder intended to create a right of survivorship. Johnson stated that checking the corresponding box was not the Credit Union's practice at the time. Lena may or may not have intended to designate the account as a joint account with right of survivorship. On its face the card is not a clear written contract establishing the right of survivorship, as required by section 439(a) of the Probate Code. See Stauffer v. Henderson, 746 S.W.2d 533, 536 (Tex. App. --Amarillo 1988), aff'd, 801 S.W.2d 858 (Tex. 1990). Issue three is overruled. Issue Four: The Gulf Employees Credit Union Account The signature card for this account is substantively identical to that of the Neches signature card. The box designating "Multiple Party with Survivorship" is checked. However, although the incorporated "Membership and Account Agreement" defines rights of survivorship, appellant's own testimony supports the conclusion that the bank, not Lena, designated the nature of the account. Appellant testified that he simply obtained his mother's signature while she was in the hospital so he could write checks on the account to pay her bills. Under these circumstances, the trial court did not err in declaring the account to be property of the estate. Issue four is overruled. Point of Error Five: The Washington Mutual Account The signature card for the Washington Mutual account contains a typewritten notation that the account is to be "JT/TNTS with rights of survivorship." The rest of the card does not appear to contain an explanation of rights of survivorship, although part is illegible. An account agreement stating only that it is a "Joint Account with Right of Survivorship," without additional explanatory language, does not confer a right of survivorship. See Ivey, 857 S.W.2d at 751. Issue five is overruled. Issue Six: The Bank One Account The Bank One signature card contains the signatures of both Jack and Lena. Appellant informed the trial court that "[a]t the very least, there is a fact question concerning whether or not the 'X' marks are marking the box indicating Joint Rights of Survivorship." The box designating that the account is to be joint with survivorship is blank; the 'X' marks appear above the box. Having in essence told the trial court that the designation was not clearly made, appellant cannot now complain that the trial court erred in deciding that the designation was not clearly made. Issue six is overruled. Issue Seven: The Huntsman Employees Federal Credit Union Account This account differs from the other disputed accounts in that it is an individual account that designates appellant as the beneficiary. The signature card and the incorporated "Important Account Information For Our Members" are almost entirely identical to those in the Gulf and Neches accounts. Lena signed the card beneath the language that incorporates the Membership and Account Agreement. The box that designates the account as "Single Party" is checked, as is the box designating it as a "Payable On Death" account. The language in the "Account Information" pamphlet describes "payable on death" accounts with the statutorily required language. Jack Graffagnino is listed as the beneficiary. This agreement created a valid "pay on death" account with Jack Graffagnino as the beneficiary. (1) Point of error seven is sustained. Issue Eight: Proportional Ownership of Funds in Joint Accounts Appellant argues that the trial court erred in holding that all the funds in the disputed accounts were property of the estate. He points out that all the accounts, with the exception of the Huntsman POD account, were joint accounts. He cites section 438(a) of the Probate Code for the proposition that "[a] joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit[.]" Tex. Prob. Code Ann. § 438(a) (Vernon 1980). He contends that the trial court should not have held that all the assets of the joint accounts belonged to the estate without hearing evidence as to contributions which may have been made by him, rather than Lena. Appellant did not raise the issue at the trial court by asserting that he made any contributions to the accounts in question. His pleadings, motions and responses asserted solely that he owned the accounts as a matter of law by survivorship. However, plaintiffs' motion for summary judgment did not address the issue of each party's contribution to the joint account, other than an assertion that the accounts were property of the estate and that the following "fact" was "undisputed": 7. Respondent has never asserted that the funds placed into the accounts were anything other than Lena Jo Graffagnino's. It is believed that the parties stipulate that all funds were owned by the Decedent at the time the accounts in question were established. The motion was not designated as a no-evidence motion for summary judgment and this assertion of "undisputed" fact was not supported by any summary judgment evidence. Even if we were to treat the motion as a no-evidence motion, the assertion that the funds were owned by Lena "at the time the accounts in question were established" does not negate the possibility of contributions by appellant of his personal funds after the accounts were created. We must sustain this issue due to an absence of any summary judgment evidence that the contributions to the joint accounts were all Lena's and that no funds were contributed by appellant. Issue eight is sustained. Issue Nine: The Estate Finally, appellant contends that the judgment below is void because the accounts were awarded to the estate that he claims does not exist. Appellees may pursue a judgment establishing the accounts as property of the estate rather than appellant's individual property. Issue nine is overruled. We affirm in part, reverse in part, and remand this case to the trial court for further proceedings consistent with this opinion. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. PER CURIAM Submitted on May 2, 2002 Opinion Delivered September 26, 2002 Do Not Publish Before Walker, C.J., Burgess and Gaultney, JJ. 1. The issue of whether appellant used undue influence to obtain the Huntsman Employees Federal Credit Union account is not before this court; this opinion does not resolve that issue.