IN THE
TENTH COURT OF APPEALS
No. 10-14-00344-CV
CARMEN GARRETT,
Appellant
v.
FIRST STATE BANK CENTRAL TEXAS,
Appellee
From the 220th District Court
Hamilton County, Texas
Trial Court No. CV03913
MEMORANDUM OPINION
This case began when Appellee First State Bank Central Texas (First State) filed an
interpleader action naming as defendants Appellant Carmen Garrett and Joy Alexander,
the Independent Executor of the Estate of John E. Alexander, II, Deceased. 1 The
interpleader involved the contested ownership of approximately $362,000 in a money-
market account at First State. The account had originally been opened by John but Garrett
1
Joy is John’s ex-wife.
was later added as a signatory to it. After John’s death, his estate and Garrett each
claimed the funds, and Garrett filed a counterclaim against First State asserting claims of
breach of fiduciary duty and constructive fraud.
Granting the Estate’s summary-judgment motion, the trial court declared that the
account was not a joint account with right of survivorship, and the summary judgment
was severed. Garrett’s counterclaim proceeded to a jury trial, and the jury found that
First State and Garrett did not have a fiduciary relationship. The trial court entered a
take-nothing judgment and denied Garrett’s motion for new trial. Raising three issues,
Garrett appeals. We will affirm.
Briefly, the trial evidence showed that on September 18, 2012, at John’s request,
Beverly Rohde, First State’s account representative, added Garrett as a signatory to John’s
money-market account and Garrett signed the existing signature card. Garrett was John’s
caregiver and lived with him while he fought cancer and other illnesses. It is undisputed
that John told Rohde that he wanted to add Garrett to the account so she could write
checks to pay his bills, even after he had died. Garrett had not otherwise been a First
State customer.
Specifically, Rohde asked Garrett to accompany Rohde into the Bank where Rohde
prepared a document for Garrett to sign. The document was prepared by Rohde in
Rohde’s office, and Garrett signed the document in Rohde’s office on the blank where
Rohde told Garrett to sign, without Garrett’s having read it. Rohde used a copy of a
signature card that John had already signed to prepare the signature card that Garrett
signed. John did not sign the document that day or on any future date, and John never
Garrett v. First State Bank Central Texas Page 2
saw the document that Rohde prepared.
Garrett’s trial testimony diverged from Rohde’s testimony in one key particular—
Garrett said at trial that John had specifically identified a multi-party account with right
of survivorship as the type of account he wanted. Rohde, on the other hand, testified
unequivocally that John never told her that he wanted Garrett to receive the money after
he died or that he wanted Garrett to be a beneficiary of the account.
In any event, when John and Garrett left the bank on September 18, the account
signature card retained its original designation as a single-party account. A short time
later, Rohde realized that an account designated as a single-party account would not
accomplish John’s stated purpose, so she set it up as if it were a multi-party account with
right of survivorship, and she changed the account designation in the bank’s system to
allow Garrett to pay John’s bills even after he had died. Specifically, Rohde testified that
she altered the card by using white-out to delete the X on the Single Party Account
Without Right of Survivorship blank, and she then placed an X on the Multiple-Party
Account With Right of Survivorship blank. John never saw the card after it had been
altered by Rohde, and Rohde never told John that she had altered the signature card for
the account.
After September 18, Garrett began signing checks on the account and continued to
do so after John’s death on December 7, 2012. After John’s death, Rohde asked Garrett
for John’s death certificate so she could put the account in Garrett’s name. Garrett
complied and the account was changed. Garrett eventually added her two sisters on the
account as joint owners with right of survivorship. After Joy qualified as the Independent
Garrett v. First State Bank Central Texas Page 3
Executor of John’s estate, she learned about the account and that John had not signed the
signature card when Garrett had signed it. Because of the contest over the funds, the
bank filed the interpleader.
In her first issue, Garrett asserts that the trial court erred in overruling her
objection to Question 1 in the charge, which is the following:
QUESTION 1
On September 18, 2012, did a relationship of trust and confidence exist
between First State Bank Central Texas and Carmen Garrett?
A relationship of trust and confidence existed if Carmen Garrett
justifiably placed trust and confidence in First State Bank Central
Texas to act in Carmen Garrett’s best interest.
A person is justified in placing confidence in the belief that another
party will act in his or her best interest only where she is
accustomed to being guided by the judgment or advice of the other
party, and there exists a long association in a business relationship, as
well as personal friendship. [Emphasis added].
Subjective trust and feelings alone do not justify transforming
arm’s-length dealings into a relationship of trust and confidence.
Answer “Yes” or “No”
Answer: No
Garrett, who had the burden of proof on this issue, objected to the inclusion of the
emphasized wording on the ground that “it is not required to be included in the charge
or under the evidence of this case.” First State contends that Garrett did not preserve her
complaint for appellate review.2 We assume without deciding that she did.
2
The record is clear that Garrett’s position was that John’s long association with First State—rather than
Garrett’s, who had no prior association with the bank—should be the focus of the alleged fiduciary
relationship, as evidenced by her request to engraft John into Question 1. Garrett thus arguably preserved
Garrett v. First State Bank Central Texas Page 4
We review charge error for abuse of discretion. Moore v. Stone, 255 S.W.3d 284, 289
(Tex. App.—Waco 2008, pet. denied).
An informal relationship may give rise to a fiduciary duty where one
person trusts in and relies on another, whether the relation is a moral, social,
domestic, or purely a personal one. See Schlumberger Technology Corp. v.
Swanson, 959 S.W.2d 171 (Tex. 1997); Thigpen v. Locke, 363 S.W.2d 247, 253
(Tex. 1962). But not every relationship involving a high degree of trust and
confidence rises to the stature of a fiduciary relationship. See Schlumberger,
959 S.W.2d at 171; Crim Truck & Tractor Co. v. Navistar Int’l Transp. Corp., 823
S.W.2d 591, 594 (Tex. 1992). Outside the cases in which formal fiduciary
duties arise as a matter of law, confidential relationships may arise when
one party has dealt with another in a certain manner for a long period of
time such that one party is justified in expecting the other to act in its best
interest. Insurance Co. of North America v. Morris, 981 S.W.2d 667, 674 (Tex.
1998). However, in order to give full force to contracts, we do not create
such a relationship lightly. See Thigpen, 363 S.W.2d at 253. Thus, while a
fiduciary or confidential relationship may arise from the circumstances of a
particular case, to impose such a relationship in a business transaction, the
relationship must exist prior to, and apart from, the agreement made the
basis of the suit. See Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 280 (Tex.
1995).
….
“However, mere subjective trust does not transform arm’s-length dealing
into a fiduciary relationship.” See Schlumberger Technology Corp. v. Swanson,
959 S.W.2d 171, 177 (Tex. 1997); Crim Truck, 823 S.W.2d at 595.
Burleson State Bank v. Plunkett, 27 S.W.3d 605, 611 (Tex. App.—Waco 2000, pet. denied);
see also Gregan v. Kelly, 355 S.W.3d 223, 228 (Tex. App.—Houston [1st Dist.] 2011, no pet.)
(“’A person is justified in placing confidence in the belief that another party will act in his
or her best interest only where he or she is accustomed to being guided by the judgment
or advice of the other party, and there exists a long association in a business relationship, as
her complaint. See Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917, 920 (Tex. 2015). But given our disposition,
we need not decide the preservation issue.
Garrett v. First State Bank Central Texas Page 5
well as personal friendship.’”) (emphasis added) (quoting Hoggett v. Brown, 971 S.W.2d 472,
488 (Tex. App.—Houston [14th Dist.] 1997, pet. denied)).
The wording in Question 1 that Garrett complains of—“and there exists a long
association in a business relationship, as well as personal friendship”—is a correct statement of
the law. See Gregan, 355 S.W.3d at 228. We disagree with Garrett’s argument that this
wording contradicts Texas Bank & Trust Co. v. Moore, 595 S.W.2d 502 (Tex. 1980). In Moore,
the supreme court quoted the following from a 1924 Illinois opinion:
A fiduciary relation is not limited to cases of trustee and cestui que trust,
guardian and ward, attorney and client, nor other recognized legal
relations, but it exists in all cases in which influence has been acquired and
abused, in which confidence has been reposed and betrayed, and the origin
of the confidence is immaterial, and may be moral, social, or domestic, or
merely personal.
Id. at 507 (quoting Higgins v. Chicago Title & Trust Co., 312 Ill. 11, 18, 143 N.E. 482, 484
(1924)). This quotation is an unremarkable recognition of informal fiduciary
relationships in Texas law. See id. (“the term includes those informal relations which exist
whenever one party trusts and relies upon another, as well as technical fiduciary
relations”). Moore further recognized that “the problem of the existence or not of a
fiduciary relationship … is one of equity and the circumstances out of which a fiduciary
relationship will be said to arise are not subject to hard and fast lines.” Id. at 508.
The existence of an informal fiduciary relationship depends on the circumstances
of each case. Thigpen, 363 S.W.2d at 253; Burleson State Bank, 27 S.W.3d at 611; see also
Lundy v. Masson, 260 S.W.3d 482, 501 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).
But those circumstances must include a relationship that existed before and apart from
Garrett v. First State Bank Central Texas Page 6
the agreement made the basis of the suit, Burleson State Bank, 27 S.W.3d at 611, and “a
long association in a business relationship, as well as personal friendship.” Gregan, 355
S.W.3d at 228 (quoting Hoggett, 971 S.W.2d at 488); see Dominguez v. Brackey Enters., Inc.,
756 S.W.2d 788, 791 (Tex. App.—El Paso 1988, writ denied); Kalb v. Norsworthy, 428
S.W.2d 701, 705 (Tex. Civ. App.—Houston [1st Dist.] 1968, no writ). Therefore, the trial
court did not abuse its discretion by including this wording in Question 1’s instructions.
Garrett also complains in her first issue that the trial court erred, over her objection,
by conditionally submitting Questions 2 (when relationship arose), 3 (breach), 4 (breach
was constructive fraud), and 5 (damages) upon affirmative answers to the previous
questions. “[I]n the event of a proper conditional submission of issues to the jury, there
is no right to insist upon an unconditional submission.” Johnson v. Whitehurst, 652 S.W.2d
441, 447 (Tex. App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.). Garrett makes no
argument that these questions were improperly submitted conditionally. The trial court
did not abuse its discretion. We overrule issue one.
Garrett’s second issue contends that the evidence is factually insufficient to
support the jury’s “Yes” answer to Question 6, which asked:
QUESTION 6
Did John Alexander express to Beverly Rohde a desire to add Carmen
Garrett as an authorized signatory on FSB Account #0947 for the sole
purpose of permitting Carmen Garrett to pay John Alexander’s bills in the
event of his sickness or upon his death?
Answer “Yes” or “No”3
3
Question 6 was submitted as the fact issue underlying First State’s request for declaratory judgment and
a resulting award of attorney’s fees under the Declaratory Judgments Act. The trial court, however,
Garrett v. First State Bank Central Texas Page 7
When the party without the burden of proof at trial complains of the factual
sufficiency of the evidence to support an adverse finding, we must consider and weigh
all of the evidence, not just the evidence that supports the verdict. Maritime Overseas Corp.
v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); Checker Bag Co. v. Washington, 27 S.W.3d 625,
633 (Tex. App.—Waco 2000, pet. denied). We will set aside the finding only if it is so
contrary to the overwhelming weight of the evidence that the finding is clearly wrong
and unjust. Ellis, 971 S.W.2d at 407. Reversal can occur because the finding was based
on weak or insufficient evidence or because the proponent’s proof, although adequate if
taken alone, is overwhelmed by the opponent’s contrary proof. Checker Bag, 27 S.W.3d at
633.
Garrett said at trial that John had specifically identified a multi-party account with
right of survivorship as the type of account he wanted. Rohde, on the other hand,
testified that John never told him that he wanted Garrett to receive the money after he
died. She testified that John “said he wanted to get Carmen [Garrett] added onto his
signature card.” Rohde further testified that John said, “I want to put Carmen on my
signature card … I want her to be able to take care of things, even after I’m gone.”
Furthermore, in explaining why, after Garrett signed the signature card, Rohde
whited out the check mark indicating that the account was a Single-Party Account
Without “P.O.D.” and checked a box indicating that the account was a Multiple-Party
declined to award attorney’s fees to First State and First State has not appealed that ruling, so Garrett cannot
establish harm. Nevertheless, we will discuss the factual sufficiency of the evidence.
Garrett v. First State Bank Central Texas Page 8
Account With Right of Survivorship, Rhode said:
A. I was trying to set up the account as though it was a multiparty account
so as to allow Ms. Garrett to write checks, even after Mr. Alexander’s death.
[Emphasis added.]
Rohde later testified similarly:
A. I was trying to set up the account as if it were a multiparty account with
right of survivorship in order to accomplish the wishes Mr. Alexander had
made to me. [Emphasis added.]
Q. What was that wish?
A. That was to allow Ms. Garrett to continue to write checks on the account,
even after he had passed.
On cross-examination, Rohde likewise testified:
A. I was trying to set up the account as if it were a multi-party account with
right of survivorship. That’s the only way that would allow Carmen to
continue to write checks. [Emphasis added.]
When asked if she changed the signature card to make Garrett an owner of the
account, Rohde responded:
A. No, sir. I did this to accommodate the wishes of my customer.
And when asked if the only way the account could be set up as a multiparty account with
right of survivorship was if Garrett was a joint owner of the account, Rohde responded:
A. I set it up as if she were [a joint owner of the account] to accommodate
the wishes of Mr. Alexander to allow her to still continue to write these
checks, even after he was gone.
….
A. He never told me he wanted her to be a beneficiary.
….
Garrett v. First State Bank Central Texas Page 9
Q. Well, as a result of what you did, was Ms. Garrett allowed to pay his
bills?
A. Yes, sir.
Q. Even after he died?
A. I believe so.
We conclude that the evidence is factually sufficient to support the jury’s
affirmative finding on Question 6. Issue two is overruled.
In her third issue, Garrett asserts that First State failed to disclose in discovery that
it had insurance coverage for Garrett’s cause of action and that the nondisclosure harmed
Garrett. To preserve a discovery complaint for appellate review, Garrett must have
raised the discovery matter in the trial court and sought relief. See TEX. R. CIV. P. 215.1;
TEX. R. APP. P. 33.1(a); In re Marriage of Price, No. 10-14-00260-CV, 2015 WL 6119457, at *1
(Tex. App.—Waco Oct. 15, 2015, no pet. h.). Because Garrett did not do so, her issue is
overruled.
Having overruled all of Garrett’s issues, we affirm the trial court’s judgment.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed May 5, 2016
[CV06]
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