Dulak v. Dulak
| Decision Date | 19 June 1974 |
| Docket Number | No. B--4137,B--4137 |
| Citation | 513 S.W.2d 205 |
| Parties | Joe DULAK, Petitioner, v. Frank DULAK et al., Respondents. |
| Court | Texas Supreme Court |
Kuykendall & Kuykendall, Kirk Kuykendall, Austin, for petitioner.
Mitchell, Yeakel, Orr & Trickey, Arthur Mitchell, Lou McCreary, Austin, Joe N. Johnson, Waco, for respondents.
Frank Dulak, joined by seven of his brothers and sisters, instituted this suit against their brother, Joe Dulak. Plaintiffs and defendant are the children and devisees in equal shares of the estate of their father, Constance Dulak. Plaintiffs alleged that Joe converted certain funds belonging to their father shortly before he died, and also that Joe, by the use of undue influence, procured from their father a release of a promissory note which he had given his father for the purchase of a farm. Plaintiffs prayed for recovery of their eight-ninths of the funds they allege that Joe converted, and for the cancellation of the release that Joe obtained from Constance. Plaintiffs also asked for recovery of the unpaid balance of the note and for foreclosure of the deed of trust. The trial court rendered judgment against Joe Dulak on a jury verdict for the sum of $20,358.39 actual damages, which total it reached by awarding plaintiffs eight-ninths of all funds which Joe Dulak had originally deposited into a joint checking account with Constance Dulak. Joe, however, was credited with his one-ninth share and certain expenses which he had incurred for the estate of Constance Dulak. The trial court also rendered judgment against Joe for $4,644.00 exemplary damages and cancelled the release. The court of civil appeals affirmed the judgment. 496 S.W.2d 776.
Plaintiffs did not join Joe Dulak's wife, Helen, as a defendant, and Joe Dulak on appeal says that the judgment is void for absence of an indispensable party. Constance Dulak conveyed his farm to Joe and Helen on April 13, 1966. Joe and Helen at that time signed the purchase money note payable to Constance, as well as a deed of trust. The release which Constance later signed on February 25, 1971, recited that Joe 'has paid me all he and his wife and heirs owe's (sic) me . . .' These facts disclose Helen's joint community interest in the property and the debt secured by the property.
The plaintiffs contend that Helen, though not named as party in the action against her husband, is till bound by the judgment under the doctrine of virtual representation of spouses. In Griffin Cooper v. Texas Gulf Industries, Inc., 513 S.W.2d 200 (Tex.1974), decided today, this court has ruled that the Family Code has abolished the doctrine of virtual representation whereby the husband could act for and represent the wife in an action concerning their joint community property. Section 5.22 of the Family Code terminated that practice, and in the case of joint management community property, the wife is now a joint manager. She is as individual as is her husband. Her rights, like his, may be affected only in an action which calls her to answer the same as any other joint owning individual.
The Legislature expressed its intent concerning this question as clearly as possible by requiring a written authorization by one spouse of the other if they intend to alter the new rule. 1 In our present case, Helen Dulak did not authorize her husband by power of attorney or other agreement in writing to represent her in the management, control, and disposition of her joint community property. Only where such a written agreement exists would the spouses be deemed representatives of each other with respect to the community.
In Cooper, supra, we made the further ruling that the omission of one of the spouses as a party in an action concerning their joint community property no longer renders a judgment void. Since jurisdiction with respect to the non-joinder of parties is now de-emphasized by force of amended Rule 39, we conclude that failure to join Helen Dulak in the suit below was not a jurisdictional defect and the judgment, unless otherwise erroneous, is binding upon those who were parties to the suit.
Constance Dulak, the father of the nine children who are parties to this action, was divorced in 1939, and after that time he lived alone on a farm near Waco. Joe was the only one of his children who maintained any kind of a regular contract with Constance. In early January, 1971, Constance wrote and asked Joe to move him from the farm, because he could no longer care for himself. Constance was eighty-five years old, deaf, and suffered from cataracts. On January 10, 1971, Constance moved from Waco to Austin to live with Joe, his wife and two children in their mobile home.
Joe and Constance returned to Waco on January 12 so that Constance could close out his checking account and his safety deposit box in the First National Bank of Waco. On February 9, 1971, Joe went with Constance to the Texas State Bank in Austin where Constance opened a joint checking account with Joe. It was a joint tenancy account with right of survivorship. Constance deposited $5,000 in the account and also left some certificates of deposit with the bank with instructions to collect the funds for deposit to the new account. On February 17 the bank received the money from the certificates and deposited it to the account, which then contained more than $28,000.
On the afternoon of February 9, 1971, Joe took his father to Seton Hospital in Austin for a cataract operation the next day. On February 15, Constance returned to Joe's mobile home, and on February 25, Constance fell in the living room of the mobile home and broke his hip. That night he was admitted to the hospital and had a hip operation the next day. He returned to Joe's home on March 19. Constance was readmitted to the hospital on March 28 and on April 14, he died.
After Constance established the joint account, he signed a check payable to Joe in the amount of $10,000. Joe cashed the check on March 1, 1971. On that same day Joe withdrew $14,000 and obtained fourteen one-thousand-dollar savings certificates which were issued jointly to himself and his father with rights of survivorship.
The jury sustained plaintiffs' claims to this entire joint account by finding that Constance signed the joint account signature card for the limited purpose of providing a convenient method for the payment of his expenses while he was hospitalized or incapacitated. The jury also found that Constance acted under the undue influence of Joe Dulak when he signed the $10,000 check. The trial court accordingly rendered judgment against Joe for the full amount of the funds which Constance deposited to the joint account less Joe's equal one-ninth part of the account and certain checks for medical expenses. Joe's attack upon this part of the judgment is that there is no evidence which supports either of those findings.
There is some evidence in the record from which the jury could infer that the joint account was a 'convenience' account, that is, that Constance did not surrender his exclusive right to the funds. Krueger v. Williams, 163 Tex. 545, 359 S.W.2d 48 (1962). Constance knew about convenience joint accounts because he had established a joint account on a prior occasion immediately before his entry into a hospital. One of the bank officers testified that he helped Constance and Joe when they came to open the account on February 9, 1971. On that occasion, Joe said that he planned to borrow $10,000 from his father, and he obtained from the bank officer a blank note which he planned to use in the transaction. Joe knew that his father possessed no funds other than those that he had put into the joint account, and the inference is that Joe, at the time the account was opened, regarded the account as his father's account. There was some evidence which supports the jury finding that the account was a convenience account.
We find no evidence, however, which supports the finding that Joe exerted undue influence upon Constance in signing the check for $10,000. There is no testimony that Joe in any way overreached his father in connection with the check. There is some evidence that Constance signed the check on February 9, prior to his entering Seton Hospital at about...
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