Scott v. Union Planters Bank, N.A.

• Citation: 196 S.W.3d 574
• Decision Date: 15 May 2006
• Docket Number: No. 27154.,27154.
• Parties: William C. SCOTT, Sr., Appellant, v. UNION PLANTERS BANK, N.A., Respondent.
• Court: Court of Appeal of Missouri (US)

Page 574

196 S.W.3d 574

William C. SCOTT, Sr., Appellant, v. UNION PLANTERS BANK, N.A., Respondent.

No. 27154.

Missouri Court of Appeals, Southern District, Division Two.

May 15, 2006.

Motion for Rehearing or Transfer Denied June 6, 2006.

Application for Transfer Denied August 22, 2006.

Derrick R. Williams, Reginald A. Williby, Jackson, for Appellant.

Kristi N. Hoff, Bradshaw, Steele, Cochrane & Berens, L.C., Cape Girardeau, for Respondent.

ROBERT S. BARNEY, Judge.

Appellant William C. Scott ("Husband") appeals from the trial court's grant of summary judgment in favor of Union Planters Bank ("Bank") determining Bank did not wrongfully divest Husband's interest in a certificate of deposit, number 2250500190 ("the CD"), by permitting his wife, Marie Scott ("Wife"), to withdraw all of the money from the CD without Husband's consent. Husband brings two points on appeal, discussed below. We affirm.

The facts are not in dispute. The parties entered into a "Stipulated Joint Statement of Uncontroverted Facts," which was introduced into evidence at trial, together with a "Signature Card" signed by the parties' attorney, Phil Barkett, pursuant to the parties' duly executed power of attorney, and a "Deposit Account Agreement and Disclosure." Viewing "the record in the light most favorable to the party against whom judgment was entered," ITT Comm'l Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993), the record reveals that Husband and Wife were married on July 31, 1989. At some time during their marriage, Husband suffered "severe and permanent injuries from a farming accident causing severance of his leg." As a result, Husband received a cash settlement of $600,000.00.

On June 15, 2000, Bank issued the CD in the amount of $600,000.00 payable to "WILLIAM SCOTT OR MARIE SCOTT."¹ (Emphasis added). The CD was opened for Husband and Wife by their attorney Phil Barkett through a Power of Attorney. The signature card for the account indicated: "ACCOUNT OWNERSHIP Joint (Right of Survivorship)" and was signed pursuant to the power of attorney by both Husband and Wife. Further, the signature card stated that the "[n]umber of Signatures Required [to withdraw money from the CD was] 1" and that "[t]he Authorized Individual(s) signing above agree(s), jointly and severally if multiple signers, to the terms set forth in the Deposit Account Agreement and Disclosure . . . ." In the "Deposit Account Agreement and Disclosure" attached to the CD, it set out that

[e]ach joint account holder, without the consent of any other Account Holder, may, and hereby is authorized by every other joint Account Holder, to make any transaction permitted under the Agreement, including without limitation: to withdraw all or any part of the account funds.

Thereafter, Husband and Wife withdrew a total of $148,208.50 from the original $600,000.00 which left a total deposit amount of $451,791.50.

Then, on August 1, 2002, Wife went to Bank without Husband and withdrew the entire amount of the CD, which at that time was $451, 932.90. She then executed a new "Time Certificate of Deposit," number 2250500596 ("the new CD"), and deposited the entire $451,932.90 into this new CD. The new CD was made payable to "MARIE SCOTT, POD REDETTA GIBBS" and was set to mature in twenty-three months on July 1, 2004.² Bank did not notify Husband regarding Wife's actions.

On February 28, 2003, Wife died. After receiving a death certificate verifying Wife's death, Bank paid Gibbs the remaining value of the new CD.

On October 7, 2004, Husband filed his petition for declaratory judgment, naming Bank as defendant. In his petition he sought to "set forth and determine the rights, obligations and liabilities that exist among the parties to the [CD]." Husband contended that "[a]bsent a specific disclaimer that the [CD] is not being held as tenants by the entirety, an account card signed by [H]usband and [W]ife as joint tenants with right of survivorship must be considered as a tenancy by the entirety" and that "[a]s tenants by the entirety, [Bank] wrongfully allowed Wife to unilaterally divest [Husband] of his personal injury settlement funds" by allowing her to withdraw the money from the CD and open a new CD payable to her daughter, Gibbs.

Husband then filed a motion for summary judgment in which he contended there were no genuine issues of material fact and asserted he was entitled to judgment as a matter of law. Bank also filed a motion for summary judgment. On June 20, 2005, the trial court entered its judgment granting Bank's motion for summary judgment and denying Husband's motion for summary judgment. The trial court found "there are no genuine issues of material facts and that [Bank] is entitled to judgment as a matter of law. . . ." Specifically, in making its decision, the trial court set out that it

considered the explicit language of [s]ection 362.470.5 RSMo as it relates to tenancy by the entirety, but finds that the depository agreement otherwise specified that each account holder without the consent of any other account holder may . . . and was authorized by every other joint account holder to make any transactions permitted under the account agreement, including without limitation, to withdraw all or any part of the account funds.

The trial court went on to state, "the Court is not unmindful of the burden that has been placed on [Husband] by [Wife] and P.O.D. recipient, Redetta Gibbs. However, [Bank] under its contractual agreement, and unlike [Husband,] is unable to pursue equitable relief against P.O.D. recipient Redetta Gibbs." This appeal by Husband followed.

Appellate review of whether summary judgment is appropriate is an issue of law, therefore our review is "essentially de novo." Stanley v. City of Independence, 995 S.W.2d 485, 486 (Mo. banc 1999). A grant of summary judgment is appropriate when the movant establishes there are no genuine issues of material fact and they are entitled to a judgment as a matter of law. McAninch v. Robinson, 942 S.W.2d 452, 456 (Mo.App.1997). A genuine issue of fact must be a "real and substantial one . . . consisting not merely of conjecture, theory and possibilities." ITT, 854 S.W.2d at 378. "Facts set forth by affidavit or otherwise in support of a party's motion are taken as true unless contradicted by the non-moving party's response to the motion." Reese v. Ryan's Family Steakhouses, Inc., 19 S.W.3d 749, 751 (Mo.App. 2000).

"A tenancy by the entirety, which exists only between a husband and wife, is based on the common law fiction that the husband and wife hold property as one person." Brown v. Mercantile Bank, 820 S.W.2d 327, 336 (Mo.App.1991). "It is well established at common law that there can be an estate by the entirety in a bank account." Id.

This common law principle received explicit legislative recognition in the 1977 amendment of [section] 362.470 . . . which provides in part: `5. Any deposit made in the name of two persons or the survivor thereof who are husband and wife shall be considered a tenancy by the entirety unless otherwise specified.'

Id. "A bank account may be held by the entirety even though one of the parties, acting alone, may draw against it." Id.

"Generally speaking, the relation of a bank to its depositor is . . . subject to contract." Washington County Mercantile Bank v. Kennedy, 855 S.W.2d 520, 522 (Mo.App.1993). "It is the clear and unambiguous language of the contract that controls ownership of the account." Id. "Legally, a certificate of deposit is a bank's promissory note, payable only according to its terms." Brown, 820 S.W.2d at 337. "A CD is a contract . . . generally created and terminated according to the terms of the CD." Capitol Sav. Bank, FSB v. Snelson, 998 S.W.2d 862, 866 (Mo.App.1999).

In his first point on appeal, Husband asserts the trial court's grant of summary judgment in favor of Bank was in error. Specifically, Husband argues that because the CD was in the name of both Husband and Wife, there was "a statutory presumption of tenancy by the entirety." Further, he argues that because it "was not otherwise specified that the account was not being held as tenants by the entirety" there was a genuine issue of material fact such that summary judgment was improper. In support of his argument, Husband relies on Scott v. Flynn, 946 S.W.2d 248 (Mo.App.1997), and Harvey v. Luther College, 802 S.W.2d 585 (Mo.App.1991).

In Scott, husband and wife were possessed of a money market account at Cass Bank and Trust Company ("the Bank") which was titled "W.H. Scott or Abigail C. Scott Joint Tenants with Right of Survivorship." The record reveals that there existed a signature card with both husband's signature and wife's signature on it. Scott, 946 S.W.2d at 250. After husband was declared to be incapacitated, the court appointed Michael W. Flynn as his guardian and conservator ("Conservator"). Id. Subsequently, Conservator withdrew all the money from the money market account. Wife ultimately filed a petition against the Bank alleging that the Bank "entered into a contract with her and [husband] to hold their funds in tenancy by the entirety and that [the] Bank breached that agreement by paying the money in the account to [Conservator] . . . ." Id. Specifically, the appellate court found that "absent a specific disclaimer that the account is not being held as tenants by the entirety, an account card signed by a husband and wife as joint tenants with right of survivorship must be considered a tenancy by the entirety." Scott, 946 S.W.2d at 251. The Scott court went on to find that "[i]nasmuch as [the] Bank offered no evidence that [Conservator] had [w]ife's approval to withdraw the funds from the account, it follows that [the] Bank did not show that it was entitled to judgment . . . as a matter of law." Id. at 251-52.

However, in the present matter, Wife is not a third party conservator and is, in fact, named on the CD at issue as an owner....