Madden v. Rhodes

• Decision Date: 16 September 1993
• Docket Number: No. 90-CA-0472,90-CA-0472
• Citation: 626 So.2d 608
• Parties: Nancy Clay MADDEN v. Farley RHODES, Executor of the Estate of Andrew A. Sierra, Deceased, and Farley Rhodes, Individually.
• Court: Mississippi Supreme Court

Page 608

626 So.2d 608

Nancy Clay MADDEN v. Farley RHODES, Executor of the Estate of Andrew A. Sierra, Deceased, and Farley Rhodes, Individually.

No. 90-CA-0472.

Supreme Court of Mississippi.

Sept. 16, 1993.

Larry L. Lenoir, Kevin J. Necaise, Mize Blass Lenoir & Laird, Gulfport, for appellant.

Robert C. Galloway, Galloway & Galloway, Gulfport, for appellee.

En Banc.

HAWKINS, Chief Justice, for the Court:

This case comes on appeal from the Chancery Court of the First Judicial District of Harrison County, Mississippi, Honorable Harry Grey Walker, Special Chancellor, presiding. At issue was the ownership of the contents of a safety deposit box and savings account, both set up in the names of "Andrew A. Sierra OR Nancy Clay Madden, as Joint Tenants with Right of Survivorship." The Special Chancellor ruled that Madden had not presented the clear and convincing evidence needed to rebut the presumption of undue influence which had been raised. He found that the assets were, therefore, part of the estate of Andrew A. Sierra. That finding is clearly supported by the record before us; and, because it is thus beyond our authority to disturb, as well as for other reasons to be set forth, we affirm.

FACTS

Madden, a thirty-three year old nurse, first met seventy-two year old Andrew Sierra and his wife, Anna, in November, 1987, when Mrs. Sierra was a patient in Garden Park Community Hospital, where Madden was employed. Mrs. Sierra was terminally ill with cancer and became a patient in the hospital's hospice program the next month. ¹ That same month, December, 1987, Madden decided to volunteer for the program and she became the Sierras' hospice volunteer.

Anna Sierra was completely bedridden and required care twenty-four hours a day. The Sierras had no children or close relatives living nearby, so Andrew Sierra provided almost all the care for his wife. His only relief was during the times that Madden came and stayed with Anna. Then, Andrew could leave the house to run errands, buy groceries, or go to the bank.

Madden testified that her duties as a hospice volunteer were to visit or call to allow the patient to talk, as well as to give the caretaker time to get out of the house. She went to the Sierra home at least twice a week, staying four to six hours each time. Madden did light housekeeping chores, bathed and cared for Mrs. Sierra, and sometimes gave her medications to her.

During the months that followed, the Sierras gave Madden several gifts, including a mink stole. Madden also gave the Sierras various small gifts and loaned them a microwave oven.

In March, 1988, the Sierras gave Madden a key to their home. They showed her where they kept a hidden cash box, as well as showing her where they kept their important papers. They told her about some of their financial matters, such as Andrew's retirement check; Anna's oil and gas royalty check; their checking account at Hancock Bank; and the safe deposit box and savings account at Southern Federal Bank that they had in their names and that of Farley Rhodes. ²

In October, 1988, Garden Park Hospital decided to end its hospice program. Madden testified the Sierras were very upset, even though hospital officials assured them they would arrange for a home health agency to take over Anna's care. The Sierras were still anxious and unhappy even after the hospital announced its plan to continue the program until the end of the year. Madden assured the Sierras she would continue to visit them after the termination of the hospice care and their relationship would remain the same.

During this time of uncertainty for the Sierras, on November 14, 1988, Madden took Andrew in her car to Merchants Bank to open a new safety deposit box and savings account in only the two of their names. Madden admitted she drove Andrew to the bank in her car, she suggested they go to Merchants Bank, she had previously banked there, and she knew one of the officers of that bank, Sandy Rogers. Although the Sierras maintained accounts at both the Hancock Bank and Southern Federal Bank, no evidence was introduced that either of the Sierras had ever done any business with Merchants Bank before.

Madden told the trial court the Sierras wanted a new lock box opened in her name to prevent Mrs. Farley Rhodes from having access to any of the valuables in the box at Southern Federal. ³ No explanation was presented of why the Sierras had not simply removed Rhodes's name from the box at Southern Federal, nor why Mrs. Anna Sierra's name was excluded from the accounts opened by Sierra and Madden November 14, 1988, at Merchants Bank.

Madden testified a female bank employee in charge of the safe deposit boxes told her and Sierra they could not rent a lock box unless they already had an account with the bank, so the two of them had to open a savings account. This was disputed, however, by both Carol O'Neill and Linda Taylor, the two employees of the bank responsible for the renting of lock boxes. Both women testified it had never been bank policy to require a customer to have another account with Merchants Bank before renting them a safety deposit box. Richard Matheny, Executive Vice President of Merchants Bank, verified such a policy had never been in effect in the Gulfport branch.

Madden and Andrew Sierra went to the desk of Lisa Jones, one of the bank secretaries, and Sierra told her he wanted to open a savings account. Madden testified Sierra said she was his friend, and she did not recall Sierra's telling Jones why her name was to be on the account. According to Jones, however, Sierra identified Madden as his nurse and he told her he wanted Madden to be able to transact business for him if he should be unable to do it himself.

Jones told Sierra in order for only one signature to be required to withdraw funds from the savings account, the account would have to be set up as an "OR" account. She opened the account in the names of "Andrew A. Sierra OR Nancy Clay Madden."

Jones verified the bank's policy of automatically setting up such "OR" accounts as "joint accounts--with the right of survivorship." ⁴ She also acknowledged she did not discuss with Sierra the policy of the bank regarding the terms under which the account was established, nor did she discuss the possible disposition of the funds in the account if one of the joint tenants died. The testimony of Jones was uncontradicted.

The evidence also showed Sierra provided all the personal information listed on the document to open the savings account--his address, birthdate, Social Security number, and driver's license number. He did not list any information about Madden, except her name. He also provided one thousand dollars ($1,000.00) in cash as an initial deposit. Both Madden and Jones testified Sierra took the cash from a brown paper bag he had with him.

Sierra and Madden left Jones's desk and went to Linda Taylor's desk near the vault. Taylor, another bank secretary, testified Sierra told her he wanted to rent a safe deposit box and he wanted it set up like the other account, handing her the card completed by Jones. Taylor copied the information from the savings account signature card onto the box rental agreement.

Taylor testified she always set up accounts with more than one name as "joint tenants, with right of survivorship," unless otherwise specified. She stated Sierra did not make any request as to the names on the account, other than his instruction to set it up like the card filled out by Jones. Once again, Taylor confirmed the fact there was no discussion about the terms of the rental agreement, the ownership of the contents of the lock box, nor of why Madden's name was included on the rental agreement and access card.

Sierra and Madden signed the rental agreement without discussion, and Taylor took a box from the vault. She gave it to Sierra, and he took it and the paper bag into a small room near her desk. Madden remained seated by Taylor's desk while Sierra had the box out.

All the evidence confirmed Sierra spoke to no one at the bank that day other than Madden, Jones, and Taylor. Madden said she did not know what Sierra put into the box that day or on any other day and that she was not given a key to the box. No evidence was presented to show Madden ever again took Sierra to Merchants Bank.

Eight days later, on the morning of November 22, 1988, Sierra went alone to Southern Federal Bank. At 10:35 a.m., Sierra signed to gain access to the lock box he and Both certificates were prepared by Lisa Jones in the names of "Andrew A. Sierra OR Nancy Madden, WROS." ⁵ Jones testified she did not discuss the term with Sierra, nor did Sandy Rogers, who signed both certificates. Jones also said Sierra paid with cash. Sierra opened his safe deposit box immediately after he purchased the CDs, at 11:50 a.m.

Mrs. Sierra had opened with Farley Rhodes. Then Sierra left and went to Merchants Bank. There he bought two certificates of deposit, one for two thousand dollars ($2,000.00) and one for five thousand dollars ($5,000.00).

On November 25, 1988, Sierra went to Southern Federal Bank and gained access to his lock box there for the last time, signing for it at 9:50 a.m. He then went to Merchants Bank and, at 10:10 that morning, he opened his box there. No CD was purchased at Merchants Bank that day, nor was any CD bearing that date found in the lock box.

Madden testified she and her husband had invested in CD's and she had suggested at one time the Sierras do the same. Although Sierra had never bought a certificate of deposit before November 22, 1988, he made five other purchases of CD's during the next two months, all of them from Merchants Bank, and all of them with his and Nancy Madden's name--not his wife's--on them.

On December 30, 1988, Sierra purchased his third CD for three thousand dollars ($3,000.00) in his name and that of Nancy Madden. This time, however, the certificate did not specify "WROS." Again, Sierra paid cash and...