Opinion issued March 27, 2008
In The
Court of Appeals
For The
First District of Texas
NOS. 01-06-00896-CV
01-07-00165-CV
__________
RUSSELL SCOTT CLARK, JERRY ANN CLARK, LEVI CLIFFORD CLARK, CAYLEIGH RENE, A MINOR CHILD BY AND THROUGH RUSSELL SCOTT CLARK, CHANCE PARKER, A MINOR CHILD BY AND THROUGH RUSSELL SCOTT CLARK, WHITNEY BLAIR CLARK, A MINOR CHILD BY AND THROUGH RUSSELL SCOTT CLARK, BRETT ALLEN METCALF, ROBIN RENEE METCALF SAXON, BRANDEN DEAN METCALF, A MINOR CHILD BY AND THROUGH ROBIN RENEE METCALF SAXON, SHANON KAY SMALL, JORDAN DANE SMALL, A MINOR CHILD BY AND THROUGH SHANON KAY SMALL, MADISON SHAE SMALL, A MINOR CHILD BY AND THROUGH SHANON KAY SMALL Appellants
V.
WELLS FARGO BANK, N.A., SUCCESSOR-IN-INTEREST TO FIRST COMMUNITY BANK, N.A., AND THE PERMANENT ADMINISTRATOR FOR THE ESTATE OF PARKER WILLIAMS Appellees
On Appeal from Probate Court No. 1
Harris County, Texas
Trial Court Cause Nos. 350,072-402 & 350,072-404
MEMORANDUM OPINION
In this dispute over survivorship rights to several certificates of deposit (“CDs”), appellants, Russell Scott Clark, Jerry Ann Clark, Levi Clifford Clark, Cayleigh Rene, a minor child by and through Russell Scott Clark, Chance Parker, a minor child by and through Russell Scott Clark, Whitney Blair Clark, a minor child by and through Russell Scott Clark, Brett Allen Metcalf, Robin Renee Metcalf Saxon, Bramden Dean Metcalf, a minor child by and through Robin Renee Metcalf Saxon, Shanon Kay Small, Jordan Dane Small, a minor child by and through Shanon Kay Small, Madison Shae Small, a minor child by and through Shanon Kay Small (collectively “Claimants”), contend that the trial court erred in granting summary judgments in favor of appellees, Wells Fargo Bank, N.A., successor-in-interest to First Community Bank, N.A., (“Wells Fargo”) and the Estate of Parker Williams (“the Estate”).
In three issues, the Claimants contend that (1) the trial court erred in granting Wells Fargo’s motion for summary judgment because Wells Fargo did not move for summary judgment on their tort claims and is not protected from claims by the Texas Probate Code; (2) alternatively, the trial court erred in granting Wells Fargo’s motion for summary judgment because there were fact issues relating to the Claimants’ tort claims; and (3) if Wells Fargo is protected from the Claimants’ tort claims by the Texas Probate Code, the trial court erred in granting the Estate’s motion for summary judgment because they have a statutory right to dispute ownership of the funds paid from the new certificates of deposit (“CDs”) if Wells Fargo is protected from claims and the Claimants presented sufficient evidence to raise a fact issue regarding mistake and ownership. We dismiss the appeal of Wells Fargo’s motion for summary judgment for want of jurisdiction and affirm the Estate’s summary judgment.
Background
In the early 1990s, Parker Williams opened six CDs with First Community Bank Houston. The CDs, which totaled $1,253,907.50, carried the name of Williams and the Claimants and were each marked as a “Multiple-Party Account with Right of Survivorship.” The Original CDs provided:
Multi-Party Account with Right of Survivorship – The parties to the account own the account in proportion to the parties’ net contributions to the account. We 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.
Withdrawals – Unless otherwise clearly indicated on the account records, any one of you who signs this form including authorized signors, may withdraw or transfer all or any part of the account balance at any time on forms approved by us.
Williams was the only one who signed the account agreements, and the Claimants were unaware that the CDs existed.
In July of 2004, Williams met with a Wells Fargo employee in Houston and was told that the CDs were not fully covered by Federal Deposit Insurance Corporation (“FDIC”) insurance. Williams was advised that the First Community Bank San Antonio, N.A. could provide her with the requisite excess deposit insurance coverage. She opened six new, fully-insured, CDs at the San Antonio location. The CDs were set up in Williams’s name, only, and she initialed the “Single-Party Account Without ‘P.O.D.’ Designation” on each of the account agreements. The new accounts provided:
Single-Party Account Without P.O.D. Designation - The party to the account owns the account. On the death of the party, ownership of the account passes as a part of the party’s estate under the party’s will or by intestacy.
One month later, on August 25, 2004,Williams died intestate. The Claimants are not Williams’s heirs or legatees under the laws of intestate distribution.
On March 23, 2005, upon request from Williams’s administrator, Wells Fargo wired the funds from the CDs to the Estate. One month later, on April 29, 2005, the Claimants filed a presentment of claim in the probate court demanding payment of the CDs. The Estate denied the claim, and Wells Fargo filed an original petition for declaratory judgment seeking (1) a determination of the construction and validity of the CDs, (2) a declaration of rights, status, or other legal relations between Wells Fargo, Williams’s estate, and the Claimants; (3) a declaration of rights, if any, of the Claimants to the CDs at the time of Williams’s death; and (4) a determination of any other questions as to any of the Claimants’ ownership of the CDs, other than as Williams’s heirs. The Claimants filed an original third-party petition seeking resolution to the same declarations presented by Wells Fargo.
Three months later, on May 17, 2006, Wells Fargo filed a traditional motion for interlocutory summary judgment seeking resolution by the trial court of (1) the validity and enforceability of the account documents underlying the Original CDs, (2) whether Williams was a person with the right to withdraw or transfer the funds represented by the Original CD, (3) whether Williams had the right to withdraw or transfer at any time all or any part of the funds represented by the Original CD, and (4) Wells Fargo’s discharge from claims for amounts paid by or on behalf of Wells Fargo to Williams as proceeds from the Original CDs. After moving for summary judgment, Wells Fargo amended its petition for declaratory relief to request that the court
a.determine that the account documents underlying the Original CDs are valid and enforceable against Claimants.
b.determine that MS. WILLIAMS was a person with the right to withdraw or transfer the Original CD funds.
c.determine that MS. WILLIAMS had the right to withdraw or transfer all or any part of such funds at any time.
d.determine that [Wells Fargo] is discharged from claims for amounts paid by or on behalf of [Wells Fargo] to PARKER WILLIAMS as proceeds from the Original CDs.
The Estate adopted Wells Fargo’s traditional motion for summary judgment and also filed a no-evidence summary judgment.
On July 5, 2006, the Claimants amended their petition to assert, for the first time, affirmative tort claims against the Estate and Wells Fargo. Specifically, the Claimants allege that it was “unnecessary for Parker Williams to modify the multi-party [CDs] and that Parker Williams intended for Claimants to receive the funds contained within the [CDs] that were transmitted to the [Estate].” The Claimants alleged, in the alternative, that, if the court determined that the Estate is the rightful owner of the CDs, “Wells Fargo tortiously interfered with Claimants’ inheritance rights.” The Claimants further alleged that “Wells Fargo was negligent with respect to banking, investment, and FDIC coverage advice provided to Parker Williams.” On August 3, 2006, the trial court ordered as follows:
1.Judgment that the Account documents underlying the Original CDs are valid and enforceable against Claimants.
2.Judgment that PARKER WILLIAMS was a person with the right to withdraw or transfer the funds represented by the Original CDs.
3.Judgment that PARKER WILLIAMS had the right to withdraw or transfer at any time all or any party of the funds represented by the Original CDs.
4.Judgment that WELLS FARGO is discharged from claims for amounts paid by or on behalf of Plaintiff to PARKER WILLIAMS as proceeds from the Original CDs.
5.An award of attorney’s fees in the amount of $18,012.00.
6.Judgment for its costs of suit.
Wells Fargo’s case was severed from the remaining action. The trial court granted the Estate’s traditional and no-evidence motions for summary judgment. The Claimants appeal the grant of summary judgment.
Summary Judgment Standard of Review
A party moving for summary judgment must conclusively prove all of the elements of its cause of action or defense as a matter of law. Tex. R. Civ. P. 166a(c); Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999). When a summary judgment does not specify or state the grounds on which the trial court relied, the non-movant on appeal must negate any grounds on which the trial court could have relied, and we will affirm the summary judgment on appeal if any of the grounds presented in the motion is meritorious. See Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995); Mellon Serv. Co. v. Touche Ross & Co., 17 S.W.3d 432, 435 (Tex. App.—Houston [1st Dist.] 2000, no pet.). A non-movant is required to show that each ground alleged in the motion for summary judgment was insufficient to support summary judgment. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).
To prevail on a no-evidence summary judgment motion, a movant must allege that there is no evidence of an essential element of the adverse party’s cause of action. Tex. R. Civ. P. 166a(i); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832–33 (Tex. App.—Dallas 2000, no pet.). Although the non-moving party is not required to marshal its proof, it must present evidence that raises a genuine issue of material fact on each of the challenged elements. Tex. R. Civ. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). A no-evidence summary judgment motion may not properly be granted if the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. Ridgway, 135 S.W.3d at 600. More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
Tort Claims
In issue one, the Claimants contend that the trial court erred in granting summary judgment in favor of Wells Fargo because it did not move for summary judgment on their tort claims, is not protected from claims by the Texas Probate Code, and cannot exclude extrinsic evidence of Williams’s intent.
Wells Fargo filed a traditional motion for interlocutory summary judgment seeking resolution by the trial court of (1) the validity and enforceability of the Account documents underlying the Original CDs, (2) whether Williams was a person with the right to withdraw or transfer the funds represented by the Original CD, (3) whether Williams had the right to withdraw or transfer at any time all or any part of the funds represented by the Original CD, and (4) Wells Fargo’s discharge from claims for amounts paid by or on behalf of Wells Fargo to Williams as proceeds from the Original CDs. In its motion, Wells Fargo stated that it should be “discharged from all claims made or which could be made for amounts it paid under the Accounts or based on the Original CDs.” After Wells Fargo filed its motion for summary judgment, the Claimants amended their petition and asserted tort claims against Wells Fargo. Specifically, the Claimants alleged that Wells Fargo tortiously interfered with their inheritance rights and was negligent with respect to banking advice provided to Williams.
The Claimants filed a response to the Estate’s and Wells Fargo’s motions for summary judgment asserting that (1) a mistake was made when the new CDs were opened or, in the alternative, Wells Fargo “fraudulently transferred the CDs to San Antonio to atone for incorrect (or at a minimum, inconsistent) insurance coverage advice previously provided to [Williams] and to obtain lower insurance premiums for excess deposit insurance coverage.” The Claimants also instructed the trial court that “none of the dispositive motions address Claimants’ tort claims against Wells Fargo, and that genuine issues of material fact exist with respect to whether the original CDs were valid and the funds properly released to [Williams].”
Wells Fargo filed a reply to the response, and, the next day, on August 3, 2006, the trial court granted Wells Fargo’s summary judgment. Two weeks later, the trial court granted Wells Fargo’s motion for severance and to make the interlocutory judgment final and stated that “the Final Judgment in the severed action is a final judgment disposing of all claims and all parties in the severed action.”
The Claimants contend that, because Wells Fargo’s motion for summary judgment did not address the funds from the new CDs or the alleged acts and omissions of Wells Fargo’s employees that occurred after the original CDs were closed, as alleged in the amended petition, the trial court erred in granting summary judgment on the tort claims. We agree.
A summary judgment cannot be granted on the entirety of a case unless the motion addresses each cause of action or affirmative defense. Clark v. Pruett, 820 S.W.2d 903, 907 (Tex. App.—Houston [1st Dist.] 1991, no writ). If a plaintiff amends his petition to add new theories of liability after being served with the motion for summary judgment, the defendant usually must file an amended or supplemental motion to address the newly pled causes of action. Yancy v. City of Tyler, 836 S.W.2d 337, 341 (Tex. App.—Tyler 1992, no writ). However, an amended or supplemental motion may not be required when the original petition merely reiterates the same essential elements of that party’s original claims in another fashion. See Fraud-Tech Inc. v. Choicepoint Inc., 102 S.W.3d 366, 387 (Tex. App.—Fort Worth 2003, pet. denied).
In this case, the amended petition does much more than merely reiterate the same elements of the Claimants’ declaratory judgment claims. Here, after filing the motion for summary judgment, the Claimants amended the petition to add new tort claims based on additional facts: specifically, actions that were taken after the original CDs were closed and the disbursement of funds for the new CDs. Nevertheless, Wells Fargo argues that the motion addresses these new claims as follows:
CLAIMANTS Response alleges that WELLS FARGO’S Motion does not dispose of the tort claims against WELLS FARGO. . . . This is incorrect. WELLS FARGO’S Motion . . . sets out the contentions of WELLS FARGO that it is protected by the provisions of Probate Code Section 443 through 448, and . . . states in relevant part that “WELLS FARGO is discharged from all claims made or which could be made for amounts it paid under the Accounts or based on the Original CDs.” (emphasis added.) Therefore, WELLS FARGO’S Motion clearly does request a summary judgment in its favor as to CLAIMANTS’ tort claims, such being “claims” from which WELLS FARGO is discharged pursuant to Probate Code Section 448 and Bandy v. First State Bank.
We disagree. The motion for summary judgment specifically deals with the law and facts surrounding the conduct before the original CDs were closed and does not show how and why the identified provisions of the Probate Code would apply to the new CDs or actions taken after the original CDs were closed. Furthermore, the motion does not identify the relevant undisputed facts for the trial court to consider regarding the application of these statutes to the Claimants’ tort claims.
We may not affirm a summary judgment on a ground not addressed in the summary judgment proceeding. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex. 1979). We acknowledge that Wells Fargo asserts that it addressed the tort claims in its reply to the Claimants’ response to the motions for summary judgment. However, in the absence of the nonmovant’s consent, a movant may not raise a new ground for summary judgment in a reply to the nonmovant’s response. Sanders v. Capitol Area Council, 930 S.W.2d 905, 911 (Tex. App.—Austin 1996, no writ); RR Publ’n & Prod., Inc. v. Lewisville Indep. Sch. Dist., 917 S.W.2d 472, 473 (Tex. App.—Fort Worth 1996, no writ).
Because we hold that Wells Fargo’s motion for summary judgment did not dispose of all the causes of action, we dismiss the Claimants’ appeal of the judgment for want of jurisdiction.
Ownership Dispute
In issue three, the Claimants contend that, under the Parol Evidence Rule, extrinsic evidence is admissible to create a fact issue regarding mistake and to dispute ownership of the funds with the Estate.
Texas Probate Code Section 439 is the exclusive means for creating a right of survivorship in joint accounts. Tex. Prob. Code Ann. § 439 (Vernon 2003); Stauffer v. Henderson, 801 S.W.2d 858, 862–63 (Tex. 1990). This applies to accounts at financial institutions and includes checking accounts, savings accounts, certificates of deposit, share accounts, and other like arrangements. Tex. Prob. Code Ann. § 436(l) (Vernon 2003); see also Tex. Prob. Code Ann. § 450 (Vernon 2003). Furthermore, a party who claims to own an account as the survivor of a joint account (or P.O.D.) bears the burden of proving the claims. See Pressler v. Lytle State Bank, 982 S.W.2d 561, 564 (Tex. App.—San Antonio 1998, no pet.). The Claimants contend that they should be permitted to produce evidence to raise a fact issue as to whether the decedent intended to create a right of survivorship.
The parol evidence rule is a rule of substantive law. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 31 (1958); Piper, Stiles & Ladd v. Fid. & Dep. Co., 435 S.W.2d 934, 940 (Tex. Civ. App.—Houston [1st Dist.] 1968, writ ref’d n.r.e.). When parties reduce an agreement to writing, the law of parol evidence presumes, in the absence of fraud, accident, or mistake, that any prior or contemporaneous oral or written agreements are merged into the final, written agreement and, therefore, that any provisions not set out in the writing were either abandoned before execution of the agreement or, alternatively, were never made and are thus excluded from consideration in interpreting the written agreement. See Hubacek, 317 S.W.2d at 31; Muhm v. Davis, 580 S.W.2d 98, 101 (Tex. Civ. App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.).
We review parol evidence questions de novo, as questions of law. City of Pasadena v. Gennedy, 125 S.W.3d 687, 691 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). Evidence that violates the parol evidence rule has no legal effect and “merely constitutes proof of facts that are immaterial and inoperative.” Piper, Stiles & Ladd, 435 S.W.2d at 940. Because all prior negotiations and agreements are presumed merged into the final agreement, parol evidence is not admissible to vary, alter, or supplement the terms of an otherwise unambiguous contract except to show (1) that the contract was induced by fraud, accident, or mistake, (2) that an agreement was to become effective only upon certain contingencies, or (3) in the case of ambiguity, that the parties’ true intentions differ from those expressed in the agreement. See Messer v. Johnson, 422 S.W.2d 908, 912 (Tex. 1968); Litton v. Hanley, 823 S.W.2d 428, 430 (Tex. App.—Houston [1st Dist.] 1992, no writ).
In their first amended petition, the Claimants alleged that, if the Estate is the rightful owner of the CDs, Wells Fargo tortiously interfered with their inheritance rights and “was negligent with respect to banking, investment, and FDIC coverage advice provided to Parker Williams.” Relying on Probate Code Section 439, the Deadman’s Statute, the Parol Evidence Rule, the “four corners of the document” rule, hearsay, and double hearsay, the Estate objected to the Claimants’ use of extrinsic summary judgment evidence. Furthermore, the Claimants did not allege any mistake or fraud against the Estate. The trial court granted the Estate’s objection to the Claimants’ summary judgment evidence, and the Claimants do not contest that ruling on appeal. There is no fraud or mistake as to the Estate pled here, and the there is no claim that the San Antonio CD agreements are incomplete or ambiguous. The Estate argues that the “Claimants cannot use extrinsic evidence in an attempt to get around the four corner of the San Antonio First Community Bank, N.A., CDs.” We agree.
We overrule issue three.
Conclusion
The Claimants’ appeal of Wells Fargo’s summary judgment is dismissed for want of jurisdiction. The Estate’s summary judgment is affirmed.
George C. Hanks, Jr.
Justice
Panel consists of Justices Nuchia, Hanks, and Higley.