Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kirkpatrick v. Cusick

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

December 19, 2013


On appeal from the County Court at Law No. 1 of Nueces County, Texas.

Before Justices Rodriguez, Garza and Perkes



Appellant, Ronda Kirkpatrick, challenges the trial court's summary judgment in favor of appellee, Kenneth A. Cusick, in a dispute related to right-of-survivorship bank accounts opened by Ronda's deceased mother, Mary Gwendolyn Cress ("Gwen"). We reverse and remand.

I. Background

For several years, Gwen entrusted her son, Sam Cress, to manage her finances. In 2009, Gwen's health began to deteriorate, and she began to question Sam's financial decisions. Eventually, Gwen asked her daughter Donna Cusick and Donna's husband Kenneth, an Assistant United States Attorney in Corpus Christi, Texas, to help her secure control of her finances away from Sam. On July 31, 2009, Sam told Gwen that he would no longer handle her financial affairs, and he gave her a cashier's check representing the funds in his control that belonged to Gwen. Gwen then decided to rewrite her will to disinherit Sam and remove Sam as the executor of her estate. Ronda and Donna assisted Gwen in removing Sam from positions of authority with respect to her financial accounts.

In early August 2009, Gwen asked Kenneth to be the executor of her will and to take over management of her financial accounts. Kenneth agreed. Gwen then opened two joint bank accounts at Prosperity Bank in Corpus Christi containing a total of approximately $282, 000, with Kenneth named as joint tenant with a right of survivorship. Gwen executed the documents to open the accounts on August 5, 2009, and Kenneth signed them later that day. Later in August 2009, Gwen executed a new will naming Donna and Ronda as primary beneficiaries and Kenneth as executor; she also executed a power of attorney designating Kenneth as her attorney-in-fact.

Gwen died in September 2009. At that point, pursuant to the terms of the joint accounts, Kenneth became sole owner of the funds on deposit therein. Subsequently, he wrote a $12, 500 check to each of Ronda and Donna.[1] He then closed the accounts and transferred the remaining funds to other accounts that he owned.

Believing that she was entitled to half of the funds in the accounts set up by her deceased mother, Ronda filed suit against Kenneth and Donna on March 18, 2011. Her original petition asserted causes of action of fraud, unjust enrichment, breach of trust under Texas Property Code section 114.001, and breach of fiduciary duty. Kenneth answered and filed a motion for partial summary judgment "on all of [Rondaj's claims and causes of action related to the creation of an alleged equitable trust."[2] In the motion, Kenneth asserted that "upon the death of [Gwen], all sums in the account vested in [Kenneth] belonged to him, and he owed no fiduciary duty to [Ronda] or anyone else." Therefore, according to the motion, "no genuine issue of material fact exists that [Kenneth] committed fraud, breach of trust, breach of fiduciary duty, or any of the other causes of action alleged by [Ronda]." The motion further argued that "no evidence exists that [Gwen] suffered any kind of mental incapacity at the time she opened the bank accounts" or "was coerced in any way into opening the bank accounts or naming [Kenneth] as a joint owner with right of survivorship and as a pay-on-death beneficiary."[3] In its prayer for relief, the motion asked that "[Ronda] take nothing by way of this lawsuit against him."

In support of his summary judgment motion, Kenneth attached copies of the signature cards corresponding to the bank accounts at issue. On each document, a box next to the term "Multiple-Party Account With Right of Survivorship" is checked. The cards are signed by both Gwen and Kenneth. Kenneth's motion also attached a bank statement corresponding to one of the accounts opened by Gwen, dated August 31, 2009 and showing a balance of $272, 392.57.

The summary judgment evidence offered by Kenneth also included deposition testimony by Roxana Perez, a banking officer with Prosperity Bank in Corpus Christi. Perez stated that Gwen came to the bank by herself in the summer of 2009 and asked to open a checking account and a money market account. Perez prepared the paperwork and brought them to Gwen at the retirement home where she lived. Gwen gave Perez a check drawn on a Frost Bank account in order to fund the two new accounts. According to Perez, Gwen was "absolutely" decisive about what she wanted to do and she did not have difficulty communicating. Perez stated that she did not suggest that Gwen put Kenneth on the account, but rather, Gwen understood the nature of the account and decided on her own to make Kenneth a co-owner. Perez agreed that she took "special care" to communicate to Gwen the difference between a survivorship account and a joint account, and that Gwen had no hesitation or doubt in what she was doing by making Kenneth a co-owner of the account with a right of survivorship. Perez testified:

[Gwen] was a very sharp lady. She was in full—she had her full faculties. I mean I'm very positive of that, and I explained what a multi-party account means, and I explained what an authorized signer means, and she—this is the one that she chose. I explained the different types of accounts and she told me what she wanted.
She told me she wanted [Kenneth] on the account, and I asked her, in what capacity, as an authorized signer or as an owner of the account? She says, as an owner of the account.
When I explained to her what a multi-party account was, I specifically told her that if something were to happen to her upon her death, the money would go to her—to him. . . . And she said, that's fine, he's the executor of my estate. So she said, that's fine.

According to Perez, Gwen did not tell her whether she had an agreement with Kenneth or Donna as to what would be done with the account funds in the event of Gwen's death. Perez denied having ever told anyone that the accounts were set up for the benefit of Ronda and Donna.

Ronda filed a response to Kenneth's motion arguing that summary judgment should be denied because there are questions of material fact as to "(a) the unfairness of the transaction by which [Kenneth] was designated as joint tenant with right of survivorship in [Gwenj's checking accounts, and (b) [Kennethj's breach of fiduciary duty." In particular, she claimed that there was a fact issue as to whether Kenneth "entered into a formal fiduciary relationship" with Gwen by "(1) agreeing to help handle her financial affairs, (2) agreeing to be named as joint owner with right of survivorship on her bank accounts, (3) taking power of attorney, and (4) agreeing to be the executor of her last will and testament." Citing Texas Bank & Trust Co. v. Moore, 595 S.W.2d 502 (Tex. 1980), Ronda further asserted that, because Kenneth accepted a gift from a person to whom he owed fiduciary duties, the burden was on him to prove that the transaction was fair.

Ronda's response included deposition testimony by Kenneth in which he acknowledged that he did not personally explain to Gwen the ramifications of naming him as a joint tenant on the bank accounts. Kenneth testified that, when Gwen asked him and Donna to assume control of her financial affairs, he "understood that [Gwen] was redesignating and her—her daughters were each going to get a[n equal] share." Kenneth agreed that "that was consistent with [Gwen's] intent on how things were to be shared between Ronda ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.