                                      IN THE
                              TENTH COURT OF APPEALS

                                     No. 10-14-00344-CV

CARMEN GARRETT,
                                                                Appellant
    v.

FIRST STATE BANK CENTRAL TEXAS,
                                                                Appellee



                               From the 220th District Court
                                 Hamilton County, Texas
                                 Trial Court No. CV03913


                              MEMORANDUM OPINION

           This case began when Appellee First State Bank Central Texas (First State) filed an

interpleader action naming as defendants Appellant Carmen Garrett and Joy Alexander,

the Independent Executor of the Estate of John E. Alexander, II, Deceased. 1              The

interpleader involved the contested ownership of approximately $362,000 in a money-

market account at First State. The account had originally been opened by John but Garrett




1
    Joy is John’s ex-wife.
was later added as a signatory to it. After John’s death, his estate and Garrett each

claimed the funds, and Garrett filed a counterclaim against First State asserting claims of

breach of fiduciary duty and constructive fraud.

        Granting the Estate’s summary-judgment motion, the trial court declared that the

account was not a joint account with right of survivorship, and the summary judgment

was severed. Garrett’s counterclaim proceeded to a jury trial, and the jury found that

First State and Garrett did not have a fiduciary relationship. The trial court entered a

take-nothing judgment and denied Garrett’s motion for new trial. Raising three issues,

Garrett appeals. We will affirm.

        Briefly, the trial evidence showed that on September 18, 2012, at John’s request,

Beverly Rohde, First State’s account representative, added Garrett as a signatory to John’s

money-market account and Garrett signed the existing signature card. Garrett was John’s

caregiver and lived with him while he fought cancer and other illnesses. It is undisputed

that John told Rohde that he wanted to add Garrett to the account so she could write

checks to pay his bills, even after he had died. Garrett had not otherwise been a First

State customer.

        Specifically, Rohde asked Garrett to accompany Rohde into the Bank where Rohde

prepared a document for Garrett to sign. The document was prepared by Rohde in

Rohde’s office, and Garrett signed the document in Rohde’s office on the blank where

Rohde told Garrett to sign, without Garrett’s having read it. Rohde used a copy of a

signature card that John had already signed to prepare the signature card that Garrett

signed. John did not sign the document that day or on any future date, and John never

Garrett v. First State Bank Central Texas                                            Page 2
saw the document that Rohde prepared.

        Garrett’s trial testimony diverged from Rohde’s testimony in one key particular—

Garrett said at trial that John had specifically identified a multi-party account with right

of survivorship as the type of account he wanted. Rohde, on the other hand, testified

unequivocally that John never told her that he wanted Garrett to receive the money after

he died or that he wanted Garrett to be a beneficiary of the account.

        In any event, when John and Garrett left the bank on September 18, the account

signature card retained its original designation as a single-party account. A short time

later, Rohde realized that an account designated as a single-party account would not

accomplish John’s stated purpose, so she set it up as if it were a multi-party account with

right of survivorship, and she changed the account designation in the bank’s system to

allow Garrett to pay John’s bills even after he had died. Specifically, Rohde testified that

she altered the card by using white-out to delete the X on the Single Party Account

Without Right of Survivorship blank, and she then placed an X on the Multiple-Party

Account With Right of Survivorship blank. John never saw the card after it had been

altered by Rohde, and Rohde never told John that she had altered the signature card for

the account.

        After September 18, Garrett began signing checks on the account and continued to

do so after John’s death on December 7, 2012. After John’s death, Rohde asked Garrett

for John’s death certificate so she could put the account in Garrett’s name. Garrett

complied and the account was changed. Garrett eventually added her two sisters on the

account as joint owners with right of survivorship. After Joy qualified as the Independent

Garrett v. First State Bank Central Texas                                             Page 3
Executor of John’s estate, she learned about the account and that John had not signed the

signature card when Garrett had signed it. Because of the contest over the funds, the

bank filed the interpleader.

        In her first issue, Garrett asserts that the trial court erred in overruling her

objection to Question 1 in the charge, which is the following:

        QUESTION 1

        On September 18, 2012, did a relationship of trust and confidence exist
        between First State Bank Central Texas and Carmen Garrett?

             A relationship of trust and confidence existed if Carmen Garrett
             justifiably placed trust and confidence in First State Bank Central
             Texas to act in Carmen Garrett’s best interest.

             A person is justified in placing confidence in the belief that another
             party will act in his or her best interest only where she is
             accustomed to being guided by the judgment or advice of the other
             party, and there exists a long association in a business relationship, as
             well as personal friendship. [Emphasis added].

             Subjective trust and feelings alone do not justify transforming
             arm’s-length dealings into a relationship of trust and confidence.

        Answer “Yes” or “No”

        Answer:      No

        Garrett, who had the burden of proof on this issue, objected to the inclusion of the

emphasized wording on the ground that “it is not required to be included in the charge

or under the evidence of this case.” First State contends that Garrett did not preserve her

complaint for appellate review.2 We assume without deciding that she did.


2
  The record is clear that Garrett’s position was that John’s long association with First State—rather than
Garrett’s, who had no prior association with the bank—should be the focus of the alleged fiduciary
relationship, as evidenced by her request to engraft John into Question 1. Garrett thus arguably preserved
Garrett v. First State Bank Central Texas                                                           Page 4
        We review charge error for abuse of discretion. Moore v. Stone, 255 S.W.3d 284, 289

(Tex. App.—Waco 2008, pet. denied).

        An informal relationship may give rise to a fiduciary duty where one
        person trusts in and relies on another, whether the relation is a moral, social,
        domestic, or purely a personal one. See Schlumberger Technology Corp. v.
        Swanson, 959 S.W.2d 171 (Tex. 1997); Thigpen v. Locke, 363 S.W.2d 247, 253
        (Tex. 1962). But not every relationship involving a high degree of trust and
        confidence rises to the stature of a fiduciary relationship. See Schlumberger,
        959 S.W.2d at 171; Crim Truck & Tractor Co. v. Navistar Int’l Transp. Corp., 823
        S.W.2d 591, 594 (Tex. 1992). Outside the cases in which formal fiduciary
        duties arise as a matter of law, confidential relationships may arise when
        one party has dealt with another in a certain manner for a long period of
        time such that one party is justified in expecting the other to act in its best
        interest. Insurance Co. of North America v. Morris, 981 S.W.2d 667, 674 (Tex.
        1998). However, in order to give full force to contracts, we do not create
        such a relationship lightly. See Thigpen, 363 S.W.2d at 253. Thus, while a
        fiduciary or confidential relationship may arise from the circumstances of a
        particular case, to impose such a relationship in a business transaction, the
        relationship must exist prior to, and apart from, the agreement made the
        basis of the suit. See Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 280 (Tex.
        1995).

        ….

        “However, mere subjective trust does not transform arm’s-length dealing
        into a fiduciary relationship.” See Schlumberger Technology Corp. v. Swanson,
        959 S.W.2d 171, 177 (Tex. 1997); Crim Truck, 823 S.W.2d at 595.

Burleson State Bank v. Plunkett, 27 S.W.3d 605, 611 (Tex. App.—Waco 2000, pet. denied);

see also Gregan v. Kelly, 355 S.W.3d 223, 228 (Tex. App.—Houston [1st Dist.] 2011, no pet.)

(“’A person is justified in placing confidence in the belief that another party will act in his

or her best interest only where he or she is accustomed to being guided by the judgment

or advice of the other party, and there exists a long association in a business relationship, as



her complaint. See Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917, 920 (Tex. 2015). But given our disposition,
we need not decide the preservation issue.
Garrett v. First State Bank Central Texas                                                            Page 5
well as personal friendship.’”) (emphasis added) (quoting Hoggett v. Brown, 971 S.W.2d 472,

488 (Tex. App.—Houston [14th Dist.] 1997, pet. denied)).

        The wording in Question 1 that Garrett complains of—“and there exists a long

association in a business relationship, as well as personal friendship”—is a correct statement of

the law. See Gregan, 355 S.W.3d at 228. We disagree with Garrett’s argument that this

wording contradicts Texas Bank & Trust Co. v. Moore, 595 S.W.2d 502 (Tex. 1980). In Moore,

the supreme court quoted the following from a 1924 Illinois opinion:

        A fiduciary relation is not limited to cases of trustee and cestui que trust,
        guardian and ward, attorney and client, nor other recognized legal
        relations, but it exists in all cases in which influence has been acquired and
        abused, in which confidence has been reposed and betrayed, and the origin
        of the confidence is immaterial, and may be moral, social, or domestic, or
        merely personal.

Id. at 507 (quoting Higgins v. Chicago Title & Trust Co., 312 Ill. 11, 18, 143 N.E. 482, 484

(1924)).     This quotation is an unremarkable recognition of informal fiduciary

relationships in Texas law. See id. (“the term includes those informal relations which exist

whenever one party trusts and relies upon another, as well as technical fiduciary

relations”). Moore further recognized that “the problem of the existence or not of a

fiduciary relationship … is one of equity and the circumstances out of which a fiduciary

relationship will be said to arise are not subject to hard and fast lines.” Id. at 508.

        The existence of an informal fiduciary relationship depends on the circumstances

of each case. Thigpen, 363 S.W.2d at 253; Burleson State Bank, 27 S.W.3d at 611; see also

Lundy v. Masson, 260 S.W.3d 482, 501 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).

But those circumstances must include a relationship that existed before and apart from


Garrett v. First State Bank Central Texas                                                 Page 6
the agreement made the basis of the suit, Burleson State Bank, 27 S.W.3d at 611, and “a

long association in a business relationship, as well as personal friendship.” Gregan, 355

S.W.3d at 228 (quoting Hoggett, 971 S.W.2d at 488); see Dominguez v. Brackey Enters., Inc.,

756 S.W.2d 788, 791 (Tex. App.—El Paso 1988, writ denied); Kalb v. Norsworthy, 428

S.W.2d 701, 705 (Tex. Civ. App.—Houston [1st Dist.] 1968, no writ). Therefore, the trial

court did not abuse its discretion by including this wording in Question 1’s instructions.

        Garrett also complains in her first issue that the trial court erred, over her objection,

by conditionally submitting Questions 2 (when relationship arose), 3 (breach), 4 (breach

was constructive fraud), and 5 (damages) upon affirmative answers to the previous

questions. “[I]n the event of a proper conditional submission of issues to the jury, there

is no right to insist upon an unconditional submission.” Johnson v. Whitehurst, 652 S.W.2d

441, 447 (Tex. App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.). Garrett makes no

argument that these questions were improperly submitted conditionally. The trial court

did not abuse its discretion. We overrule issue one.

        Garrett’s second issue contends that the evidence is factually insufficient to

support the jury’s “Yes” answer to Question 6, which asked:

        QUESTION 6

        Did John Alexander express to Beverly Rohde a desire to add Carmen
        Garrett as an authorized signatory on FSB Account #0947 for the sole
        purpose of permitting Carmen Garrett to pay John Alexander’s bills in the
        event of his sickness or upon his death?

        Answer “Yes” or “No”3

3
 Question 6 was submitted as the fact issue underlying First State’s request for declaratory judgment and
a resulting award of attorney’s fees under the Declaratory Judgments Act. The trial court, however,
Garrett v. First State Bank Central Texas                                                         Page 7
        When the party without the burden of proof at trial complains of the factual

sufficiency of the evidence to support an adverse finding, we must consider and weigh

all of the evidence, not just the evidence that supports the verdict. Maritime Overseas Corp.

v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); Checker Bag Co. v. Washington, 27 S.W.3d 625,

633 (Tex. App.—Waco 2000, pet. denied). We will set aside the finding only if it is so

contrary to the overwhelming weight of the evidence that the finding is clearly wrong

and unjust. Ellis, 971 S.W.2d at 407. Reversal can occur because the finding was based

on weak or insufficient evidence or because the proponent’s proof, although adequate if

taken alone, is overwhelmed by the opponent’s contrary proof. Checker Bag, 27 S.W.3d at

633.

        Garrett said at trial that John had specifically identified a multi-party account with

right of survivorship as the type of account he wanted. Rohde, on the other hand,

testified that John never told him that he wanted Garrett to receive the money after he

died. She testified that John “said he wanted to get Carmen [Garrett] added onto his

signature card.” Rohde further testified that John said, “I want to put Carmen on my

signature card … I want her to be able to take care of things, even after I’m gone.”

        Furthermore, in explaining why, after Garrett signed the signature card, Rohde

whited out the check mark indicating that the account was a Single-Party Account

Without “P.O.D.” and checked a box indicating that the account was a Multiple-Party




declined to award attorney’s fees to First State and First State has not appealed that ruling, so Garrett cannot
establish harm. Nevertheless, we will discuss the factual sufficiency of the evidence.
Garrett v. First State Bank Central Texas                                                               Page 8
Account With Right of Survivorship, Rhode said:

        A. I was trying to set up the account as though it was a multiparty account
        so as to allow Ms. Garrett to write checks, even after Mr. Alexander’s death.
        [Emphasis added.]

Rohde later testified similarly:

        A. I was trying to set up the account as if it were a multiparty account with
        right of survivorship in order to accomplish the wishes Mr. Alexander had
        made to me. [Emphasis added.]

        Q. What was that wish?

        A. That was to allow Ms. Garrett to continue to write checks on the account,
        even after he had passed.
On cross-examination, Rohde likewise testified:

        A. I was trying to set up the account as if it were a multi-party account with
        right of survivorship. That’s the only way that would allow Carmen to
        continue to write checks. [Emphasis added.]

        When asked if she changed the signature card to make Garrett an owner of the

account, Rohde responded:

        A. No, sir. I did this to accommodate the wishes of my customer.

And when asked if the only way the account could be set up as a multiparty account with

right of survivorship was if Garrett was a joint owner of the account, Rohde responded:

        A. I set it up as if she were [a joint owner of the account] to accommodate
        the wishes of Mr. Alexander to allow her to still continue to write these
        checks, even after he was gone.

        ….

        A. He never told me he wanted her to be a beneficiary.

        ….


Garrett v. First State Bank Central Texas                                                Page 9
        Q. Well, as a result of what you did, was Ms. Garrett allowed to pay his
        bills?

        A. Yes, sir.

        Q. Even after he died?

        A. I believe so.

        We conclude that the evidence is factually sufficient to support the jury’s

affirmative finding on Question 6. Issue two is overruled.

        In her third issue, Garrett asserts that First State failed to disclose in discovery that

it had insurance coverage for Garrett’s cause of action and that the nondisclosure harmed

Garrett. To preserve a discovery complaint for appellate review, Garrett must have

raised the discovery matter in the trial court and sought relief. See TEX. R. CIV. P. 215.1;

TEX. R. APP. P. 33.1(a); In re Marriage of Price, No. 10-14-00260-CV, 2015 WL 6119457, at *1

(Tex. App.—Waco Oct. 15, 2015, no pet. h.). Because Garrett did not do so, her issue is

overruled.

        Having overruled all of Garrett’s issues, we affirm the trial court’s judgment.




                                                    REX D. DAVIS
                                                    Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 5, 2016
[CV06]




Garrett v. First State Bank Central Texas                                                Page 10
