Nugen v. Simmons

• Decision Date: 10 June 1997
• Docket Number: No. 23609,23609
• Citation: 489 S.E.2d 7,200 W.Va. 253
• Parties: Bobby Gene NUGEN, Administrator of the Estate of Henry Everette Nugen, Plaintiff Below, Appellant v. Garland J. SIMMONS, Defendant Below, Appellee
• Court: West Virginia Supreme Court

Page 7

489 S.E.2d 7

200 W.Va. 253

Bobby Gene NUGEN, Administrator of the Estate of Henry Everette Nugen, Plaintiff Below, Appellant v. Garland J. SIMMONS, Defendant Below, Appellee

No. 23609.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 21, 1997.

Decided June 10, 1997.

Syllabus by the Court

1. "Code, 1931, 31A-4-33 as amended, creates, in the absence of fraud, mistake or other equally serious fault, a conclusive presumption that the donor depositor of a joint and survivorship bank account intended a causa mortis gift of the proceeds remaining in the account after his death to the surviving joint tenant." Syl. Pt. 2, Dorsey v. Short, 157 W.Va. 866, 205 S.E.2d 687 (1974).

2. "A party seeking to prove fraud, mistake or other equally serious fault must do so by clear and convincing evidence and if such fraud, mistake or other equally serious fault is not so proven, then the surviving joint tenant may rely on the conclusive presumption created by W.Va.Code, 31A-4-33, as amended, that the donor depositor of a joint and survivorship account intended a causa mortis gift of the proceeds remaining in the account after his death to the surviving joint tenant to establish such gift." Syl. Pt. 2, Lutz v. Orinick, 184 W.Va. 531, 401 S.E.2d 464 (1990).

3. "A presumption of constructive fraud may arise in connection with joint bank accounts with survivorship, if the parties to the joint account occupy a fiduciary or confidential relationship. This presumption requires the person who benefits from the creation of the account to bear the burden of proving that the funds were, in fact a bona fide gift." Syllabus, Kanawha Valley Bank v. Friend, 162 W.Va. 925, 253 S.E.2d 528 (1979).

4. "Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove." Syl. Pt. 4, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

D. Clinton Gallagher, Fayetteville, for Appellant.

Fred A. Jesser III, Fayetteville, for Appellee.

PER CURIAM.

This is an appeal by Bobby Gene Nugen, as administrator of the Estate of Henry Everette Nugen, from an order granting summary judgment in favor of Garland J. Simmons, the decedent's nephew and the Appellee in this case, in a suit to make the proceeds of a joint bank account part of Henry Nugen's estate. The Appellant, who in addition to being the administrator is one of the decedent's three sons, claims that there were genuine issues of material fact in the case, and that summary judgment was therefore improper. After reviewing the record and the submissions of counsel, we disagree, and affirm the judgment of the Circuit Court of Fayette County.

Henry Nugen died testate on November 4, 1993. He had three sons, one of whom, Bobby Gene Nugen, was appointed administrator of the estate. Henry Nugen was ninety-one years old at the time of his death, and had lived with his nephew, Garland Simmons, for his last two or three months. Mr. Nugen had black lung and other health problems, and had been in and out of the hospital several times. In August, 1993, his sons, who had been sharing the care of their father, took him to visit two nursing homes. Mr. Nugen indicated to them that he would prefer to stay in his own home. Soon thereafter, he called his nephew, Garland Simmons, and asked whether he could move in with Simmons. Mr. Simmons had offered his uncle a room after an illness three years earlier, which Mr. Nugen had declined. This time, Simmons conferred with his wife, and Henry Nugen moved in the next day. Mr. Nugen offered to pay for his room and board, and gave Simmons $1,200 per month for two months before he died.

According to Mr. Simmons, soon after moving in, Mr. Nugen asked to go to the bank to get the deed to his house. While there, he removed everything from his safe deposit box, and returned it all two days later. On August 27, 1993, after putting everything back into the safe deposit box, Simmons stated in his deposition that the decedent commented to him that "the boys" had been in the box and there was some money missing. The decedent's son, Albert, had signed the card indicating that he had used the box. Henry Nugen then said that he would transfer everything into Mr. Simmons's name, and proceeded to open a new joint account and transfer into it over $70,000 that had been in an account held jointly with his son, Albert.

When Henry Nugen died on November 4, 1993, there was a balance of $74,408.56 in the joint account. Donald Nugen, another son, went to Mr. Simmons' house and asked for the money. Simmons refused. On December 17, 1993, Bobby Gene Nugen, as administrator, filed suit to recover the money, alleging that it was the rightful property of the Estate of Henry Nugen. In response to a motion for a more definite statement, the estate filed an amended complaint on January 12, 1994, alleging that the decedent and Simmons had a contractual agreement for tending to the decedent's personal needs, and that it had been the decedent's intent to establish the joint account for convenience in paying his bills, and not to make a gift of the funds. On April 18, 1994, the Appellee moved for summary judgment on the basis of West Virginia Code section 31A-4-33 (1996), which creates a presumption that the donor-depositor of a joint bank account intended a gift of the proceeds remaining in the account at his death to the surviving joint tenant. The Appellee supported this motion with the signature card indicating a joint account, and the affidavits of three bank employees who witnessed the creation of the account.

The affidavits of Becky Booth and Diana Janney are identical. Both say that Henry Nugen and Garland Simmons appeared together on August 27, 1993, to transfer an account from Henry Nugen to "Henry Nugen or Garland Simmons," and

That she personally informed Mr. Henry Nugen that by opening this account Mr. Garland Simmons, upon the death of Henry Nugen, would receive all the proceeds of the account and in fact could withdraw the account at any time if the said Garland Simmons so wished.

That Henry Nugen appeared to understand his actions and to further understand the result of his actions as explained to him by the undersigned.

The affidavit of a third bank employee, Harriet Woodson, states that she witnessed Becky Booth explain the consequences of the joint account to the decedent.

The circuit court denied the motion for summary judgment by order dated June 29, 1994, and stated in a supporting letter to counsel that the allegation of a contractual relationship and a relationship of convenience between the Appellee and the decedent precluded a finding that there was no issue of material fact in the case. On February 16, 1995, following depositions, the Appellee renewed his motion for summary judgment. On April 17, 1995, the circuit court granted summary judgment for Garland Simmons, indicating that it relied on the uncontroverted affidavits of the three bank employees to determine that there was no genuine issue of material fact.

It is from this ruling that the administrator appeals. The Appellant asserts that there were genuine issues of material fact with respect to whether a confidential or fiduciary relationship existed between the decedent and Simmons; and whether the creation of the joint account was due to fraud, mistake, or undue influence.

Our review of summary judgment is de novo. Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). We will uphold the grant of summary judgment only if there is no genuine issue as to any material fact. Syl. Pt. 4, Aetna Casualty & Sur. Co. v. Federal Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963).

Our starting point is West Virginia Code section 31A-4-33(b) (1996), which provides:

When a deposit is made by any person in the name of such depositor and another or others and in form to be paid to any one of such depositors, or the survivor or survivors of them, such deposit, and any additions thereto, made by any of such persons, upon the making thereof, shall become the property of such persons as joint tenants. All such deposits, together with all interest thereon, shall be held for the exclusive use of the persons so named, and may be paid to any one of them during the lifetime of them, or to the survivor or survivors after the death of any of them.

In syllabus point 2 of Dorsey v. Short, 157 W.Va. 866, 205 S.E.2d 687 (1974), this Court held:

Code, 1931, 31A-4-33 as amended, creates, in the absence of fraud, mistake or other equally serious fault, a conclusive presumption that the donor depositor of a joint and survivorship bank account intended a causa mortis gift of the proceeds remaining in the account after his death to the surviving joint tenant.

Thus we begin with the presumption that Henry Nugen intended to make a gift of the money remaining in the joint account to Garland Simmons. In syllabus point 2 of Lutz v. Orinick, 184 W.Va. 531, 401 S.E.2d 464 (1990), the Court clarified the burden of proof necessary to defeat this presumption:

A party seeking to prove fraud, mistake or other equally serious fault must do so by clear and convincing evidence and if such fraud, mistake or other equally serious fault is not so proven, then the surviving joint tenant may rely on the conclusive presumption created by W.VA. CODE, 31A-4-33, as amended, that the donor depositor of a joint and survivorship account intended a causa mortis gift of the proceeds remaining in the account after his death to the surviving joint tenant to establish such gift.

The Appellant, therefore, can overcome the presumption of a gift by proving by clear and convicting evidence that the money was placed in the joint account with Mr. Simmons as a result of fraud, mistake, or other equally serious fault.

With regard...