UNION PLANTERS NAT. BANK, NA v. Jetton, No. 2001-CA-01609-COA.

• Court: Court of Appeals of Mississippi
• Writing for the Court: Before KING, P.J., THOMAS, MYERS and GRIFFIS, JJ.
• Citation: 856 So.2d 674
• Docket Number: No. 2001-CA-01609-COA.
• Decision Date: 15 July 2003
• Parties: UNION PLANTERS NATIONAL BANK, N.A., Oxford Square Office, Appellant, v. Arline K. JETTON, Appellee.

856 So.2d 674

UNION PLANTERS NATIONAL BANK, N.A., Oxford Square Office, Appellant,
v.
Arline K. JETTON, Appellee

No. 2001-CA-01609-COA.

Court of Appeals of Mississippi.

July 15, 2003.

Rehearing Denied September 23, 2003.

856 So.2d 675

Thad J. Mueller, Attorney for Appellant

Thomas Henry Freeland, Oxford, Attorney for Appellee.

Before KING, P.J., THOMAS, MYERS and GRIFFIS, JJ.

THOMAS, J., for the Court.

¶ 1. Arline Jetton brought suit against Union Planters Bank for conversion of monies which were in possession of the bank because Ms. Jetton had purchased certificates of deposit from the bank which also included the names of her two sons as joint owners. She was awarded $109,649.10 plus pre-judgment interest as well as attorney's fees in the amount of $27,777.61. Aggrieved Union Planters asserts the following:

I. AS A MATTER OF LAW, UNION PLANTERS HELD A CONTRACTUAL RIGHT OF SETOFF BY VIRTUE OF THE PROVISIONS IN THE CERTIFICATES OF DEPOSIT AND PROMISSORY NOTE.

II. THE COURT ERRED BY ALLOWING, OVER OBJECTION, PAROL EVIDENCE TO ALTER THE CONTRACT CREATING A JOINT TENANCY.

III. MS. JETTON, WAYNE AND JIM FAILED TO READ THE CONTRACTS; THE ACCOUNT WAS A GENERAL ACCOUNT SUBJECT TO CONTRACTUAL SETOFF.

IV. CONTRARY TO THE CHANCELLOR'S DECISION, THE BANK DID NOT HOLD ITSELF OUT AS AN "EXPERT" IN INVESTMENTS.

V. THE COURT ERRED IN AWARDING ATTORNEY'S FEES AND COSTS.

FACTS

¶ 2. In 1995 Arline Jetton purchased two $70,000 certificates of deposit and one $10,000 certificate of deposit from Southtrust Bank which were subsequently acquired by Union Planters Bank, hereafter referred to as UPB, when UPB bought Southtrust. Accompanying Ms. Jetton were her two sons, Jim and Wayne. Ms. Jetton's husband had recently passed away and she wanted to be sure her sons could take care of her if need be, so she brought them with her and put their names on the certificates of deposit as joint owners. The interest payment from the CD's came directly to her pursuant to her request, which was signed by all parties.

856 So.2d 676

¶ 3. On September 3, 1996, Wayne executed a promissory note in favor of UPB in the amount of $247,044, due and payable on November 10, 1996. The loan was secured by a contemporaneous deed of trust on a "spec" home in the Grand Oaks subdivision in Oxford. After granting a number of requested extensions and after numerous requests to pay the loan, UPB was forced to begin foreclosure proceedings against Wayne. UPB suggested pledging real property known as Patio Gardens Apartments to allow UPB to extend Wayne's loan even further. Wayne verbally agreed to do this, but just two days later deeded both Patio Gardens and his home to his wife. When asked about this at trial Wayne testified, "I did not want the bank to take them." UPB was forced to foreclose on the security interest which left a deficiency in the amount of $109,649.10. UPB executed its right to setoff against the certificates of deposit, leaving a balance of $40,350.90. A bank draft in that amount was made payable to Ms. Jetton, Wayne and Jim

¶ 4. The effect of the joint tenancy was not orally explained to Ms. Jetton, but was plainly apparent in the contract signed by Ms. Jetton. The terms of the original certificate of deposit contracts, as well as numerous renewals, contained standard setoff provisions outlined in bold print, RIGHT OF SETOFF, on the first page of the certificate of deposit.

¶ 5. When questioned at trial about the verbal statements made prior to the written contract, counsel for UPB objected, citing the parol evidence rule. The chancellor ruled that the testimony was allowed because, "Chancery Court is a court of equity, I sit as judge and jury. I'm going to let her answer it for what it is worth. I know that I was a guardian of a man here in Lafayette County, a disabled war veteran, and I had heck with banks with his funds, he had close to half a million dollars. They kept putting him and me down as joint tenants on the CD's." He further explained, "I am going to let her testify as to what her conversation was with the bank at the time that she purchased the CD."

¶ 6. On direct examination the following exchange occurred between Ms. Jetton and her attorney:

Q. I understand that you have said you asked the people at the bank to set this CD up so that your sons could have access to the money to use it for your benefit, is that what I understand you have said?

A. Well, if need be. Yeah.

Q. I notice that the certificate of deposit is made Arline Jetton or Wayne Estes or Jim Estes. Was there any discussion at the bank as to what the way they set this up meant?

A. No discussion

¶ 7. Ms. Jetton further testified that if she would have known that the bank could set off debts of Jim's or Wayne's then she never would have bought the CD. She testified that her sons had a power of attorney allowing them to handle her business which made the joint ownership...