Court Of Appeals v. Eisenhauer

• Decision Date: 15 July 2010
• Docket Number: NUMBER 13-09-00004-cv
• Parties: COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG BANK OF AMERICA, N.A., Appellant, v. DWIGHT EISENHAUER, INDIVIDUALLY AND AS INDEPENDENT EXECUTOR OF THE ESTATE OF LORENE BELCHER WALTER, DECEASED, Appellee.
• Court: Texas Court of Appeals

COURT OF APPEALSTHIRTEENTH DISTRICT OF TEXASCORPUS CHRISTI-EDINBURGBANK OF AMERICA, N.A., Appellant,

v.DWIGHT EISENHAUER, INDIVIDUALLY AND AS INDEPENDENT EXECUTOR OF THE ESTATE OF LORENE BELCHER WALTER, DECEASED, Appellee.

NUMBER 13-09-00004-cv

Court of Appeals of Texas

July 15, 2010

On appeal from County Court at LawNo. 1 of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Benavides

Memorandum Opinion by Justice Rodriguez

AppelleeDwight Eisenhauer, individually and as independent executor of the estate of Lorene Belcher Walter, deceased, sued appellant Bank of America, N.A. (Bank of America) to recover $27,497.67 Bank of America paid to Jo Ann Day.Each party filed amotion for traditional and no-evidence summary judgment.The trial court granted Eisenhauer's motion and denied Bank of America's motion.A jury trial was held on Eisenhauer's request for attorney's fees.¹The trial court entered a final judgment awarding Eisenhauer, individually and as independent executor of Lorene's estate, damages and attorney's fees.By six issues, which we reorganize as four, Bank of America contends (1)the trial court erred in granting summary judgment in favor of Eisenhauer because he failed to state the grounds upon which the motion was made; (2)the trial court erred in denying Bank of America's no-evidence motion for summary judgment because Eisenhauer provided no evidence to support various elements of his claims; (3)the trial court erred in denying Bank of America's traditional motion for summary judgment because Eisenhauer, as executor of Lorene's estate, was estopped from pursuing his claim; and (4)the trial court erred by failing to require Eisenhauer to segregate his attorney's fees' evidence.We affirm, in part, reverse and render, in part, and reverse and remand, in part.

I.Background²

In June 2003, Lorene and her husband, H.W., renewed a certificate of deposit (the Walter CD) account at Bank of America.The certificate was titled "H. W. Walter and Lorene Walter ITF Jo Ann Day and Dwight Eisenhauer."H.W. died in June 2004.Lorene, as co-owner of the Walter CD and the surviving spouse, became the sole owner of the Walter CD.Upon the death of Lorene, any remaining sums were to be paid in equal shares to Day and Eisenhauer.

On July 16, 2004, Day, a long-time employee of Eisenhauer and co-executor with Eisenhauer of H.W.'s estate, presented H.W.'s death certificate to Bank of America.Day requested that Bank of America's employee, Joyce Sheen, distribute funds from the Walter CD to Day and Eisenhauer even though Lorene was still alive.Sheen complied with Day's request and issued a cashier's check in the amount of $27,497.67 to Day.A second cashier's check in an equal amount was issued and mailed to Eisenhauer.At Day's request, Sheen closed the Walter CD account.Bank of America acknowledges that it made an error when it distributed these funds to Eisenhauer and Day.Eisenhauer returned the check issued to him and, pursuant to his power of attorney, opened a new account in Lorene's name with himself as the only beneficiary.Eisenhauer deposited his check into that account.

Bank of America phoned Day to inform her of the error.Day responded that she would have her attorney contact Sheen.Bank of America also contacted Day regarding the money through three letters written between July 28, 2004 and August 27, 2004.On August 16, 2004, Day's attorney tendered $5,000 to Bank of America.On November 17, 2004, Bank of America's legal department wrote to Day's attorney, acknowledging that Day had offered to pay Bank of America part of the money as a lump sum with the remaining amounts to be paid in installments.In its November 17 letter, Bank of America rejected Day's offer and advised her that it would consider legal remedies, including litigation, if payment was not received within ten days from the date of the letter.

On August 27, 2004, Beverly Wynone Belcher Ringland was appointed temporary guardian of the person and the estate of Lorene, and her appointment was continued andconfirmed on October 22, 2004.³On or about February 2, 2005, Ringland delivered a document to Bank of America, which recited the following: (1) the Walter CD designated Day and Eisenhauer as payable-on-death beneficiaries; (2) H.W. died on June 20, 2004; (3) Bank of America mistakenly permitted Day to withdraw funds from the Walter CD account and distributed, in error, the proceeds in equal shares to Day and Eisenhauer; (4) Eisenhauer returned his distribution to Bank of America; (5) Day retained her distribution despite Bank of America's demands; (5) Ringland was appointed guardian of the person and estate of Lorene; and (6)"Ringland, in her fiduciary capacity as guardian for [Lorene], desires that Day retain the funds received by her and that [Bank of America] withdraw its demand on Day to return funds to the Account."In addition to the above recitals, the Ringland document contained the following paragraph titled "Agreement":

Therefore, in consideration of forbearance from recovery efforts by the Bank against Day, Ringland, in her fiduciary capacity as guardian for Walter, agrees to indemnify, defend, protect, and hold Bank of America harmless from and against any and all claims, demands, losses, costs, expenses, obligations, liabilities, and damages, including reasonable attorney's fees and costs, that Bank of America may incur or suffer in connection with or resulting from the Withdrawal.

Following receipt of this document, Bank of America returned the $5,000 check to Day's attorney and took no further actions to collect the money from Day.

On March 7, 2005, Eisenhauer replaced Ringland as court-appointed guardian for Lorene's person and estate.Lorene died on May 2, 2005, and on May 25, 2005, Eisenhauer became independent executor of Lorene's estate.Eisenhauer filed suit against Bank of America on September 13, 2005, asserting claims for breach of contract, violation of state law, ⁴ negligence, gross negligence, and breach of fiduciary duty; Eisenhauer requested actual damages, punitive damages, and attorney's fees.In his petition, Eisenhauer alleged that one of the assets of Lorene's estate "was a cause of action against Bank of America for wrongfully, illegally and negligently closing [the Walter CD account]... and wrongfully and illegally paying one-half of such funds to a third party not entitled to such funds."Bank of America and Eisenhauer filed motions for traditional and no-evidence summary judgment.The trial court granted summary judgment for Eisenhauer and denied Bank of America's motion.After a jury determined the amount of Eisenhauer's attorney's fees, the trial court entered final judgment awarding Eisenhauer actual damages of $27,797.67 and attorney's fees of $61,000.This appeal ensued.

II.Standard of Review

A.Summary Judgment Generally

Ordinarily, when both sides move for summary judgment and the trial court grants one motion and denies the other, the Court reviews the motions and all summary judgment evidence and renders the judgment that the trial court should have rendered.SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840, 841(Tex.2005)(per curiam);Barrand, Inc. v. Whataburger, Inc., 214 S.W.3d 122, 129(Tex. App.-Corpus Christi2006, pet. denied)(citingComm'rs Court v. Agan, 940 S.W.2d 77, 81(Tex.1997))."However, we may also reverse the judgment and remand the cause when we find that course proper."K3 Enters. v. McDaniel, 8 S.W.3d 455, 458(Tex. App.-Waco2000, pet. denied)(citingCoker v. Coker, 650 S.W.2d 391, 392(Tex.1983)(providing that the property settlement agreementthat the trial court found unambiguous was found ambiguous by the supreme court and the cause was remanded for the trier of fact to resolve the ambiguity);Sosa v. Williams, 936 S.W.2d 708, 711 n.1(Tex. App.-Waco1996, writ denied)(concluding that remand was proper when competing motions were based on different premises)).

In reviewing motions for summary judgment, issues not expressly presented to the trial court by written motion or response to a motion for summary judgment cannot be considered as grounds either to affirm or reverse the trial court's judgment.TEx. R. CIV. P. 166a(c);McConnell v. Southside I.S.D., 858 S.W.2d 337, 341(Tex.1993);seeMercier v. Sw. Bell Yellow Pages, Inc., 214 S.W.3d 770, 774(Tex. App.-Corpus Christi 2007, no pet.)(op. on reh'g)."A motion must stand or fall on the grounds expressly presented in the motion."McConnell, 858 S.W.2d at 341.

B.Traditional Summary Judgment

Our review of the trial court's grant or denial of a traditional motion for summary judgment is de novo.SeeOrtega v. City Nat'l Bank, 97 S.W.3d 765, 771(Tex. App.-Corpus Christi 2003, no pet.)(op. on reh'g).The moving party bears the burden of showing both no genuine issue of material fact and entitlement to judgment as a matter of law.Tex. R. Civ. P. 166a(c);Ortega, 97 S.W.3d at 772.In deciding whether there is a genuine issue of material fact, the Court takes evidence favorable to the non-movant as true.Ortega, 97 S.W.3d at 772.All reasonable inferences benefit and all doubts are resolved in favor of the non-movant.Id.Summary judgment for a defendant is proper if the defendant disproves at least one element of each of the plaintiff's claims or affirmatively establishes each element of an affirmative defense to each claim.Id.A nonmovant has the burden to respond to a traditional summary judgment motion if the movantconclusively: (1) establishes each element of its cause of action or defense; or (2) negates at least one element of the non-movant's cause of action or defense.Id.

In a traditional motion for summary judgment, rule 166a(c) requires that the movant"shall state the specific grounds" upon which the motion is made.Tex. R. Civ. P. 166a(c);seeMcConnell, 858 S.W.2d at 341;Red Roof Inns, Inc. v. Murat Holdings, L.L.C., 223 S.W.3d 676, 688(Tex....