Magana v. Citibank, N.A.

• Decision Date: 30 December 2014
• Docket Number: NO. 14–13–00530–CV,14–13–00530–CV
• Citation: 454 S.W.3d 667
• Parties: Philippe Renee Nottebohm Magana and Mercantil Murcia, S.A. de C.V., Appellants v. Citibank, N.A., Citibank Texas, N.A., Citigroup, Inc., and Ana Maria Nottebohm Magana, Individually and as Executor of the Estate of Philippe Otto Nottebohm Dekkers, Deceased, Appellees
• Court: Texas Court of Appeals

454 S.W.3d 667

Philippe Renee Nottebohm Magana and Mercantil Murcia, S.A. de C.V., Appellants

v.Citibank, N.A., Citibank Texas, N.A., Citigroup, Inc., and Ana Maria Nottebohm Magana, Individually and as Executor of the Estate of Philippe Otto Nottebohm Dekkers, Deceased, Appellees

NO. 14–13–00530–CV

Court of Appeals of Texas, Houston (14th Dist.

Opinion filed December 30, 2014.

Warren Clint Wills, Sheldon Richie, Austin, TX, for Appellants.

Sarah Patel Pacheco, Kathleen Beduze, C. Henry Kollenberg Jr., Houston, TX, for Appellees.

Panel consists of Justices McCally, Busby, and Donovan.

OPINION

J. Brett Busby, Justice

This is a dispute between a brother and sister over ownership of funds in three accounts. Philippe Otto Nottebohm Dekkers (Dekkers) and his wife¹ opened two accounts with Citibank, N.A., and Dekkers eventually opened an investment account with Citigroup, Inc. Their children, appellant Philippe Rene Nottebohm Magana (Philippe Rene) and appellee Ana Maria Nottebohm Magana (Ana), were added as signatories on the three accounts, which we refer to collectively as the “Citibank accounts.” After Dekkers died, a dispute arose between Philippe Rene and Ana regarding the distribution of the funds held in the Citibank accounts. Philippe Rene filed suit against Ana and Citibank seeking, among other things, a declaration determining the “rightful distribution of the funds” in the accounts. Appellant Mercantil Murcia, S.A., a Mexican corporation, intervened in the litigation claiming it owned the funds in the accounts. Philippe Rene nonsuited Citibank and modified his claims against Ana to assert that the funds in the Citibank accounts belonged to Mercantil Murcia. Following a jury trial, the trial court rendered judgment in favor of Ana and divided the funds in the Citibank accounts.

Philippe Rene and Mercantil Murcia raise five issues on appeal. In their first issue, appellants contend they are entitled to a new trial because the trial court's official court reporter had lost her certification before trial began. In appellants' view, this meant there was no record of the trial. We overrule this issue because appellants have not demonstrated they were harmed as a result of the court reporter's loss of her certification. In their second issue, appellants contend the trial court abused its discretion when it admitted evidence allegedly in violation of the Dead Man's Rule found in Rule 601 of the Texas Rules of Evidence. Because the challenged evidence is cumulative of other evidence admitted without objection, we overrule this issue.

In their third issue, appellants argue that the submission of three jury questions tainted the jury's perception of the facts to such an extent that it caused the jury to return an incorrect verdict. We conclude appellants waived this issue on appeal because they failed to cite any legal authority in support of their argument. We overrule appellant's fourth issue challenging the sufficiency of the evidence because we conclude that the record contains sufficient evidence to support the trial court's judgment. We also overrule appellants' fifth issue in which they contend the trial court erred when it: (1) ruled that the investment account was not a joint account with right of survivorship, (2) refused to declare that Ana was not an owner of the Citibank accounts as of May 19, 2011, (3) refused to order Citibank to honor a $2.5 million check Philippe Rene wrote on May 20, 2011, and (4) refused to award Philippe Rene his attorneys' fees pursuant to the Uniform Declaratory Judgment Act. We therefore affirm the trial court's judgment.

Background

A. The Citibank accounts and their disposition

Dekkers operated a successful import/export company in Mexico.² Dekkers and his wife opened a checking account at Citibank as early as 1974. They also opened a savings account with Citibank. The Dekkers later added their children, Ana and Philippe Rene, as signatories to both accounts.³

Dekkers' wife died in 2001. After her death, Dekkers, Ana, and Philippe Rene signed documentation (1) confirming that the approximately $2.1 million in the two Citibank accounts at that time were personal funds, and (2) designating the three of them as the accountholders. In 2003, Dekkers opened an investment account with Citigroup, Inc. Dekkers, Ana, and Philippe Rene were listed as the accountholders on that account as well.

Dekkers learned he had leukemia

in 2009. After he received that diagnosis, Dekkers discussed how he wished to divide his assets upon his death with Ana and her husband, Jorge Halvas. Dekkers explained that he wanted to split the money in the three Citibank accounts equally between his two children. According to Ana, Dekkers told her that the money in the Citibank accounts was his personal money and did not belong to Mercantil Murcia. In addition, Halvas testified that Dekkers never mentioned that the money in the Citibank accounts belonged to a company.

In January 2011, Dekkers travelled to Houston for medical treatment. Dekkers would remain in Houston until his death. Both Ana and Philippe Rene came to Houston and would spend alternating days with him. In March 2011, Dekkers told Ana that Philippe Rene was pressuring him to give Philippe Rene more than half of Dekkers' assets. Dekkers gave Ana his medical power of attorney at that time. Dekkers also drafted a will in April 2011. The 2011 will specifically mentioned the Citibank accounts and directed that they be divided equally between Ana and Philippe Rene. The will also designated Ana as the executor of Dekkers' estate.

In early May 2011, Dekkers decided that he did not wish to receive any further medical treatment. As his condition worsened, Dekkers remained in the hospital and he experienced periods of mental confusion. When it became clear that the end was near, Dekkers made the decision to move to hospice care. May 18 was chosen as the date for the move. On that morning, Ana came into Dekkers' hospital room after Philippe Rene had stayed overnight. Ana found a wine bottle and two glasses in the room. When Ana arrived, Philippe Rene showed her a handwritten note, dated May 18, 2011, that he said had been written by Dekkers. The note asked Citibank to “[p]lease take note that contrary to my former instructions only my son Philippe Rene Nottebohm is authorized to sign [checks] of my account.... 2814.”⁴ The note also asked for a confirmation from Citibank. According to Ana, Philippe Rene showed her the note and told her “that was what was going to happen.”

Dekkers moved to the hospice that same day. When asked about her father's condition when he was transported to the hospice, Ana testified that he was weak, unable to take care of himself, and was confused. Dekkers' hospice records report that he was lethargic, agitated, and minimally responsive the day of the move.

When Philippe Rene transmitted the May 18 note to Citibank, Sandino Gonzalez, the Citibank representative who testified during the trial, informed Philippe Rene in a telephone call that he could not remove any names from the Citibank accounts unless he received a document signed by all persons named on the accounts authorizing the removal. According to Gonzalez, this requirement was found in the Citibank accounts' terms and conditions, was Citibank's standard procedure dealing with the removal of a title holder of an account, and was the procedure Citibank always followed. Gonzalez testified that he had never spoken to Philippe Rene before the May 18 call. Gonzalez sent a form to Philippe Rene that he could use to obtain the necessary signatures.

Philippe Rene presented the form to Ana the next day and demanded that she sign. After asking Dekkers if he wanted her to sign the form and he told her no, Ana refused to sign it. Philippe Rene sent the form dated May 19 to Citibank with his signature and that of Dekkers but without Ana's signature. After receiving the form, Gonzalez told Philippe Rene that Citibank would not remove Ana from the accounts without her signature. Citibank froze the accounts at that point in time. Gonzalez testified that the accounts were frozen because he perceived there was a dispute among the accountholders.

On May 20, Philippe Rene wrote a check for $2,503,258 payable to himself and drawn on the Citibank checking account. He then had his wife take the check to the Houston office of U.B.S., his own financial institution. The record is unclear whether she attempted to deposit the check into Philippe Rene's personal account at that time. Ultimately, the check was never paid. Once Philippe Rene realized the Citibank accounts had been frozen, he entered Dekkers' hospice room and angrily demanded that his father call Citibank about the accounts because he believed Ana had frozen them.

Concerned about Philippe Rene's behavior in her father's last days, Ana had the doctor at the hospice examine Dekkers to determine his mental capacity. Dr. Thuy Hanh Trinh examined Dekkers and determined that he did not have mental capacity as of that date, May 20, 2011. Dr. Trinh directed that a letter to that effect be prepared, which she then signed. Dekkers died two days later. At the time of Dekkers' death, the Citibank accounts had deposits totaling approximately $4 million.

B. Philippe Rene's suit to declare ownership of the accounts

Dekkers' April 2011 will was filed for probate in Harris County. The will was admitted to probate without contest and Ana was appointed executor of Dekkers' estate. Philippe Rene filed a separate suit in Harris County district court against Citibank and Ana, which was transferred to Harris County Probate Court No. 4.

Philippe Rene's original petition alleged that the funds in the Citibank accounts were for the purpose of running an unnamed business operated by Dekkers and himself. Philippe Rene further alleged that Citibank had improperly refused to: recognize Dekkers' May 18 note instructing Citibank to remove Ana as a signatory on the accounts, and cash the $2.5...