                    NUMBER 13-07-00732-CV

                    COURT OF APPEALS

            THIRTEENTH DISTRICT OF TEXAS

              CORPUS CHRISTI - EDINBURG


WELLS FARGO BANK, N.A., IN ITS CORPORATE
CAPACITY AND AS INDEPENDENT EXECUTOR OF
THE ESTATE OF JOHN CROCKER, DECEASED,                   Appellant,

                               v.

SUSAN CROCKER AND JEANNE CROCKER,                       Appellees.


         On appeal from the County Court at Law No. 2
                  of Victoria County, Texas.


                 MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Rodriguez and Garza
           Memorandum Opinion by Justice Rodriguez
        This is a breach of fiduciary duty case. A jury found for appellees, Susan Crocker

and Jeanne Crocker,1 and against appellant, Wells Fargo Bank, N.A., (Wells Fargo) in its

corporate capacity and as independent executor of the estate of Susan and Jeanne's

deceased father, John Crocker. The trial court entered judgment against Wells Fargo and

jointly awarded Susan and Jeanne $230,000 in actual damages and $30 million in

exemplary damages. By five issues, Wells Fargo contends that: (1) there is no evidence

of breach of duty (negligent or fiduciary) or causation of injury; (2) there is no evidence of

malice to support the punitive damage award; (3) there is no evidence of forgery which is

needed in this case to overcome the statutory cap on punitive damages; (4) the trial court

erred in allowing a post-trial pleading amendment that increased the punitive damage plea

by $27,500,000; and (5) the punitive damages award violates the due process clause. We

reverse and render.

                                             I. BACKGROUND

        Jeanne and Susan are John's daughters by his first wife, whom he divorced. In

1995, John married Launa White.2 Before their marriage, John and Launa executed a

premarital agreement, which contained the following provision:

        Notwithstanding the foregoing, the parties agree that all bank accounts held
        in the names of both [John and Launa] on the date of marriage shall, after


        1
         Throughout the record, Jeanne Crocker is also referred to as Jeanne Lynne Stevens. For ease of
reference we will refer to her as Jeanne Crocker. See T EX . R. A PP . P. 47.1.

        2
          W ells Fargo filed a third-party action against Launa W hite seeking reim bursem ent, attorney's fees,
and expenses. In its brief, W ells Fargo explains that because "it had already paid the disputed funds to
Launa," by bringing her into the proceedings "the courts could sort out who owed what to whom ," and "[i]f the
m oney turned out to belong to the daughters, W ells Fargo would sim ply seek reim bursem ent from Launa so
that no one ended up with m ore or less than they deserved." W ells Fargo's claim against Launa was severed
from the underlying lawsuit to be heard at a date subsequent to the trial of the present case. Launa is not a
party to this appeal.

                                                       2
        their marriage, be considered community property and all bank accounts
        opened after the date of marriage in the names of both [John and Launa]
        shall likewise be considered community property. The parties agree that all
        bank accounts held in the name of both [John and Launa] shall be held in
        such a manner as to provide the right of survivorship to the remaining party
        upon the death of the other.

        On April 28, 2000, John spoke with Winston McKnight, a trust administrator at Wells

Fargo,3 about opening two new accounts. John also met with Wells Fargo employee J.P.

Green. One of the new accounts was to be a separate account in John's name only which

would take its funds from John's separate property.4 McKnight testified that the second

account—the disputed account in this case—was to be a joint account with Launa. The

joint account took its funds from existing accounts that John and Launa held as joint

tenants with rights of survivorship (ROS).

        According to McKnight, when he opened the disputed account for John, he and

John "never discussed [ROS]." On the day the disputed account was opened McKnight

wrote "+ Launa joint" on a copy of the purported agreement. At trial, McKnight agreed that

he wrote "+ Launa joint" without John knowing about it or telling him to do so.5 McKnight

also testified that he wrote "+ Launa joint" on a photocopy of the separate property

agreement for his working files to remind him that there were two accounts and to avoid


        3
         McKnight testified that in April 2000 he "was in charge of a book of trust and investm ent accounts,
I.R.A.s and that [he] was the relationship m anager on the accounts . . . ."

        4
         There is no dispute regarding the separate account John opened at the sam e tim e as the disputed
account. The m oney in this account passed into the estate, and Susan and Jeanne received that m oney as
residuary beneficiaries, after claim s against the estate were paid.

        5
           Jeanne testified that after she received a copy of the disputed account agency agreem ent, she called
McKnight to ask him to explain it. M cKnight told Jeanne that John had written "+ Launa joint" on the
agreem ent after his nam e. Jeanne testified that when she challenged McKnight saying that it was not her
father's handwriting, he replied, "W ell, that's what your father did." At his deposition, however, McKnight
testified that he, not John, had written the phrase on the agreem ent and that he did not think that John was
with him when he did so.

                                                       3
confusion; in an effort to distinguish the new joint account from the new separate account.

This agreement did not expressly provide for ROS. In addition, while McKnight first

testified that no original agreement relating to the disputed account could be found in Wells

Fargo's file, after his memory was refreshed through Green's deposition testimony,

McKnight testified that he had, in fact, left the agreement for the disputed account with

John and that it apparently was never returned.

       By a will dated April 26, 2000, John made a number of specific bequests, leaving,

for example, a life estate in their home to Launa and a life estate in his ranch to Susan and

Jeanne. By the residuary clause, John left "all the rest, residue and remainder of [his]

estate, separate or community, of every kind and character, real, personal and mixed, unto

[his] daughters." The will named Wells Fargo as independent executor of the estate,

provided that the executor had all the powers given to a trustee by the Texas Trust Code

and by law, and specifically directed the executor to pay out of his residuary estate all "just

debts and claims" against his estate.

       John died on February 22, 2001. Following his death, a dispute arose about the

joint account that John had opened a year earlier. Launa contacted Wells Fargo when she

found a $334,000 discrepancy in one of the joint accounts with ROS. Wells Fargo

determined that the $334,000 had been transferred at John's request from that particular

joint account into the disputed joint account that did not have ROS. Launa's attorney

contacted Wells Fargo asserting that Launa was entitled to the funds in the disputed

account.

       On February 28, 2001, Wells Fargo filed an application to probate John's will and

on March 2, 2001, was appointed sole independent executor for the estate. On April 26,

                                              4
2001, in accordance with advice from its attorney, Munson Smith, that Launa was legally

entitled to the funds, Wells Fargo distributed approximately $460,000 to Launa, which was

the total amount in the disputed account at that time.

       On May 4, 2001, Wells Fargo and Smith met with Susan, Jeanne, their attorneys,

and several of John's grandchildren. At that meeting, Wells Fargo and Smith briefly

discussed, for the first time with the others, the decision to distribute the funds from the

disputed account to Launa.

       Susan and Jeanne sued Wells Fargo for negligence and breach of fiduciary duty

alleging that Wells Fargo failed to disclose to them, as residual beneficiaries under their

father's will, the nature of, or the problems with, documentation on the disputed account

before the $460,000 in the account was paid to Launa as John's surviving wife.6 Wells

Fargo generally denied the claims and specifically pleaded that John's will gave it broad

powers as independent executor, including the power to settle disputed claims, if

reasonable. Throughout the trial, Wells Fargo asserted that Launa had a valid claim

against the estate for the funds at issue and that it properly paid those funds to her, while

the Crocker sisters argued that Launa's claim failed.

       A jury found that Wells Fargo: (1) negligently distributed funds from the disputed

account to Launa, proximately causing injury to Susan and Jeanne, and resulting in actual

damages in the amount of $230,000; (2) breached its fiduciary duties to Susan and

Jeanne, proximately causing injury, and resulting in actual damages in the amount of

$230,000; (3) acted with malice; and (4) committed forgery with the intent to defraud or



       6
           Jeanne and Susan at first claim ed the entire $460,000, but later sought only half of the funds.

                                                       5
harm appellees. After resolving liability issues and determining the amount of actual

damages, the jury assessed $30 million in punitive damages against Wells Fargo. The trial

court entered judgment on the jury's verdict of breach of fiduciary duty and awarded a joint

actual-damage award of $230,000 and a punitive-damage award of $30 million against

Wells Fargo. This appeal ensued.

                                         II. LIABILITY

       By its first issue, Wells Fargo contends that Susan and Jeanne are not entitled to

any actual damages because there is no evidence of a breach of any duty owed them

under either theory of recovery—negligence or breach of fiduciary duty. Wells Fargo also

argues that there is no evidence that its actions caused injury to Susan and Jeanne.

                                  A. Standard of Review

       We may sustain a no-evidence or legal sufficiency challenge only when (1) the

record discloses a complete absence of evidence of a vital fact; (2) the fact-finder is barred

by rules of law or of evidence from giving weight to the only evidence offered to prove a

vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or

(4) the evidence establishes conclusively the opposite of a vital fact. King Ranch, Inc. v.

Chapman, 118 S.W.3d 742, 751 (Tex. 2003). In determining whether there is legally

sufficient evidence to support the finding under review, we must consider evidence

favorable to the finding if a reasonable juror could and disregard evidence contrary to the

finding unless a reasonable juror could not. City of Keller v. Wilson, 168 S.W.3d 802, 807,

827 (Tex. 2005). In the context of a jury trial, the sufficiency of the evidence is reviewed

in light of the charge submitted if no objection is made to the charge. Romero v. KPH



                                              6
Consolidation, Inc., 166 S.W.3d 212, 221 (Tex. 2005); Wal-Mart Stores, Inc. v. Sturges,

52 S.W.3d 711, 715 (Tex. 2001); see Minn. Life Ins. Co. v. Vasquez, 192 S.W.3d 774, 778

(Tex. 2006) (reviewing the insurer's legal sufficiency challenge according to the charge as

given) (citing Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 618-19 (Tex. 2004) ("In

assessing the evidence, we assume that the portions of the charge just quoted, because

they were given without objection, correctly state the law.")).

                                B. Breach of Fiduciary Duty

                                      1. Applicable Law

       "The elements of a breach of fiduciary duty claim are: (1) a fiduciary relationship

between the plaintiff and defendant, (2) a breach by the defendant of his fiduciary duty to

the plaintiff, and (3) an injury to the plaintiff or benefit to the defendant as a result of the

defendant's breach." Lundy v. Masson, 260 S.W.3d 482, 501 (Tex. App. Houston [14th

Dist.] 2008, pet. denied). To recover for a breach of fiduciary duty, a plaintiff has the

burden of proving each element. See, e.g., Avary v. Bank of Am., N.A., 72 S.W.3d 779,

792 (Tex. App.–Dallas 2002, pet. denied).

       An executor owes fiduciary duties to the beneficiaries of the estate—the same

duties applicable to trustees.        Lesikar v. Rappeport, 33 S.W.3d 282, 296 (Tex.

App.–Texarkana 2000, pet. denied) (citing Humane Soc'y of Austin & Travis County v.

Austin Nat'l Bank, 531 S.W.2d 574, 571 (Tex. 1975); Ertel v. O'Brien, 852 S.W.2d 17, 20

(Tex. App.–Waco 1993, writ denied)). As independent executor of the estate, Wells Fargo

had a fiduciary relationship with Susan and Jeanne and, therefore, owed them, among

other things, "'a fiduciary duty of full disclosure of all material facts known to [it] that might



                                                7
affect [the beneficiaries'] rights.'" Avary, 72 S.W.3d at 792 (quoting Montgomery v.

Kennedy, 669 S.W.2d 309, 313 (Tex. 1984) (holding that trustees of trust and executors

of estate had fiduciary duty of full disclosure to beneficiary)).

                                          2. Breach

       By its first issue, Wells Fargo argues that it did not breach any fiduciary duty owed

to Susan and Jeanne because it complied with its duty to pay the right person by

marshaling the assets of the estate, examining the claims against the estate, engaging

legal counsel to analyze the claims, and paying the party that was entitled to receive the

funds. However, the trial court did not instruct the jury on a fiduciary's duty to pay the right

person. Rather, the trial court instructed the jury, without objection, on the following

fiduciary duties Wells Fargo owed to all beneficiaries of John's estate:

       •      To act with the utmost good faith and to exercise the most scrupulous
              honesty toward the beneficiaries;

       •      To place the interests of the beneficiaries before its own and to not
              use the advantage of its position to gain any benefit for itself at the
              expense of the beneficiaries and to not place itself in a position where
              its self interest might conflict with its obligations as a fiduciary;

       •      To fully and fairly disclose all important information to the
              beneficiaries concerning their interests in the Estate; or

       •      To act impartially by not showing favoritism between or among the
              beneficiaries.

Therefore, Wells Fargo's conduct is measured against the preceding duties as identified

in the jury charge. See Romero, 166 S.W.3d at 221 (Tex. 2005).

       Smith testified that Wells Fargo did not tell the Crocker daughters about the

disputed account before it paid Launa so as to "facilitate our purpose to go ahead and



                                               8
make that settlement if you want to call it that of the legal rights with the parties,

irrespective of the claims by the parties." It was Smith's opinion that Launa "was legally

entitled to the funds in that account and that any litigation with regard to that would result

in additional expense to the estate." In addition, when the Crocker sisters' counsel

contacted Smith after the May 2001 meeting, Smith informed him that "in our opinion it was

a joint account subject to the right of a survivorship provided by the prenup[tual]

agreement."

       The evidence establishes that Susan and Jeanne did not learn of the disputed

account until the May 2001 meeting. Jeanne testified that when the meeting began, Smith

told them there was a joint account, that the money in that account had been given to

Launa, and that it was a "done-deal type thing." In addition, the evidence reveals that at

the time of the meeting Wells Fargo knew but did not tell the Crocker sisters the following:

•      Wells Fargo did not have an original signed agency agreement for the disputed
       account;

•      Wells Fargo had a photocopy of an agreement upon which McKnight had written "+
       Launa joint" after John's name;

•      the photocopy of the disputed account agreement appeared to be a photocopy of
       the separate account agreement; and

•      nothing in the photocopy of the purported joint-account agency agreement provided
       for ROS.

       Although Susan and Jeanne requested a copy of the disputed account agreement

when they learned about it at the May 2001 meeting, Wells Fargo did not provide Susan

and Jeanne with copies of any documents related to the disputed account until January or

February 2002. Wells Fargo also acknowledged at trial that it had made a mistake when

it failed to followup and get the original agency agreement for the disputed account from

                                              9
John. Wells Fargo chose not to disclose this mistake to Susan and Jeanne.

       Considering evidence favorable to the finding if a reasonable juror could,

disregarding evidence contrary to the finding unless a reasonable juror could not, see City

of Keller, 168 S.W.3d at 807, 827, and reviewing the evidence in light of the charge

instructions regarding fiduciary duties owed, see Romero, 166 S.W.3d at 221, we conclude

that the evidence offered to prove that Wells Fargo breached its fiduciary duty to Susan

and Jeanne "to fully and fairly disclose all important information . . . concerning their

interests in the [e]state" is more than a mere scintilla. See King Ranch, 118 S.W.3d at

751. Thus, the evidence is legally sufficient to establish Wells Fargo's breach.

       Nonetheless, Wells Fargo argues that there is no evidence of breach because

Susan and Jeanne offered no expert testimony on this element.              However, expert

testimony is only necessary when the subject lies outside the realm of what a layperson

would understand. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006); Roark

v. Allen, 633 S.W.2d 804, 809 (Tex. 1982). Disclosing all important information that is

known to the executor and that concerns a beneficiary's interest in the estate is part of the

fiduciary duty owed to beneficiaries by an executor. See Avary, 72 S.W.3d at 792. We

cannot conclude that expert testimony is necessary to establish a breach of this simple and

straightforward duty. The disclosure of details concerning the Crocker sisters' interest in

their father's estate, including the $230,000 from the disputed account, is not outside the

common experience and understanding of the average layman. An expert was not

required to testify that Wells Fargo, having the fiduciary duty to disclose material facts,

should have disclosed information to the beneficiaries concerning the disputed account.



                                             10
We overrule Wells Fargo's first issue to the extent it challenges the breach element.

                                       3. Causation of Injury

        By its first issue, Wells Fargo also challenges the legal sufficiency of the evidence

to establish that the breach caused an injury.7 See Alexander v. Turtur & Assocs., Inc.,

146 S.W.3d 113, 119 (Tex. 2004) ("Breach of the standard of care and causation are

separate inquiries . . . and an abundance of evidence as to one cannot substitute for a

deficiency of evidence as to the other."). Wells Fargo contends that Susan and Jeanne

failed to carry their burden of proving causation because they failed to show that Wells

Fargo's actions or inactions caused any cognizable injury. It asserts that the Crocker

sisters are ignoring the effect of Launa's claim to the funds. In response, Susan and

Jeanne contend that Wells Fargo's argument only assumes that the money belonged to

Launa. They urge this is not the case and assert that, but for the Wells Fargo's non-

disclosure and its conduct in concealing the nature of the account and its documentation,

they would have known the terms of the disputed account, made an appropriate claim to

the $230,000, and obtained the funds to which they were entitled. By this reasoning,

Susan and Jeanne contend they established the element of causation. We disagree.




        7
          Under both negligence and breach of fiduciary duty, the tort theories pleaded and charged, Susan
and Jeanne had the burden to prove that any wrongdoing by W ells Fargo "proxim ately caused an injury" to
them . See W estern Invs., Inc. v. Urena, 162 S.W .3d 547, 550-551 (Tex. 2005) (concluding even if there were
a breach of duty in this negligence case, there was no evidence that such a breach proxim ately caused the
tragic occurrence); Si Kyu Kim v. Harstan, Ltd., 286 S.W .3d 629, 635 (Tex. App.–El Paso 2009, pet. filed)
(setting out that breach of fiduciary duty requires a showing that the breach caused an injury) (citing Jones
v. Blume, 196 S.W .3d 440, 447 (Tex. App.–Dallas 2006, pet. denied); Punts v. W ilson, 137 S.W .3d 889, 891
(Tex. App.–Texarkana 2004, no pet.))

                                                    11
       Breach of fiduciary duty requires a showing that the breach caused an injury.8 Si Kyu

Kim v. Harstan, Ltd., 286 S.W.3d 629, 635 (Tex. App.–El Paso 2009, pet. filed) (citing Jones

v. Blume, 196 S.W.3d 440, 447 (Tex. App.–Dallas 2006, pet. denied); Punts v. Wilson, 137

S.W.3d 889, 891 (Tex. App.–Texarkana 2004, no pet.)); Lundy, 260 S.W.3d at 501. Susan

and Jeanne had the burden to prove that Wells Fargo "proximately caused an injury" to

them. See Edwards v. Pena, 38 S.W.3d 191, 198 (Tex. App.–Corpus Christi 2001, no pet.)

(holding that the plaintiff alleging breach of fiduciary duty bears the burden of proof) (citing

Mar. Overseas Corp. v. Ellis, 977 S.W.2d 536, 538 (Tex. 1996)). "Cause in fact and

proximate cause are but specific applications of the rule that a plaintiff must produce



        8
          Som e language used in Susan and Jeanne's appellate argum ents appears to suggest that they need
not prove causation and injury in this case. For exam ple, they m ake the following argum ents: (1) "num erous
fiduciary duties have been breached while [W ells Fargo] has worked to conceal its m istakes by, am ong other
things, forging docum ents. In this case, causation lies in that concealm ent," (2) the proxim ate cause finding
"m ust be analyzed in light of [W ells Fargo's] breach, which arises from its conduct in concealing the nature
of the account and the nature of the docum entation for the account from the Crockers" and "the forgery of an
agency agreem ent for the disputed account," and (3) "[i]n arguing 'all's well that ends well,' [W ells Fargo]
sloughs off its place in the causation chain by contending that the m oney in the account belonged to Launa
all along. But that argum ent assum es no wrongdoing and conveniently ignores [W ells Fargo's] efforts to
conceal its initial m istake through forgery and m isrepresentation." In their supplem entary statem ent of facts,
the Crocker sisters also state that W ells Fargo "com pletely ignores the heart of this case—m alicious breach
of fiduciary duty and the forgery accom panying that breach." Finally, in response to the legal-sufficiency
challenge to the breach elem ent, Susan and Jeanne sum m arize their response as follows: "[W ells Fargo] with
Its Corporate Hat on Made a Mistake It Attem pted with Its Independent Executor Hat on to Cover; and Therein
Lies This Verdict."

          To the extent Susan and Jeanne's argum ents are asking us to dispense with the need to prove
causation and injury in this case, we decline to do so. See Burrow v. Arce, 997 S.W .2d 229, 240 (Tex. 1999).
Breach is enough only when a plaintiff seeks to forfeit som e portion of fees earned in connection with a breach
of fiduciary duty. Si Kyu Kim, 286 S.W .3d at 635 (citing Longaker v. Evans, 32 S.W .3d 725, 733 n.2 (Tex.
App.–San Antonio 2000, pet. withdrawn)). The Crockers are not seeking "fee dam ages." They are seeking
to recover actual dam ages. See Slay v. Burnett Trust, 143 Tex. 621, 187 S.W .2d 377, 391 (1945) (op. on
reh'g) (en banc) (explaining that a trustee would be liable to trust beneficiaries for any actual loss to a trust
resulting from the loan of trust assets m ade in breach of the trustee's fiduciary duty to avoid self-dealing, but
in this case there was a question of fact as to whether the trust actually lost anything on the loan). Injury and
causation are still required when a plaintiff seeks to recover actual dam ages for a breach of fiduciary duty.
Si Kyu Kim, 286 S.W .3d at 635 (citing Longaker, 32 S.W .3d at 733); Hoover v. Larkin, 196 S.W .3d 227, 233
(Tex. App.–Houston [1st Dist.] 2006, pet. denied) (setting out, in a breach of fiduciary duty case, that while
a plaintiff need not prove causation to recover disgorgem ent of fees, the plaintiff m ust prove causation to
recover actual dam ages).

                                                      12
evidence from which the [juror] may reasonably infer that the [injury suffered and the]

damages sued for have resulted from the conduct of the defendant." Selectouch Corp. v.

Perfect Starch, Inc., 111 S.W.3d 830, 835 (Tex. App.–Dallas 2003, no pet.); see Haynes

& Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 181-82 (Tex. 1995) (explaining that the

causal nexus requirement is met when a jury is presented with pleading and proof that

establishes a direct causal link between the actions of the defendant, the injury suffered,

and the damages awarded); see also Adame v. Law Office of Allison & Huerta, No. 13-04-

670-CV, 2008 Tex. App. LEXIS 3912, at **11-12 (Tex. App.–Corpus Christi May 22, 2008,

pet. denied) (mem. op.) (setting out, in an appeal from the granting of a summary judgment

in a legal malpractice action, that proof of a causal nexus is necessary to ascertain the

amount of damages to which a plaintiff is entitled).

      Question 5 of the jury charge asked, "Do you find from a preponderance of the

evidence that the breach of fiduciary duty, if any you have found in answer to Question 4,

proximately caused an injury to Susan and Jeanne Crocker?" The jury responded, "We do."

The jury charge defined "proximate cause" as,

      that cause which, in a natural and continuous sequence, produces an event,
      and without which cause such event would not have occurred. In order to be
      a proximate cause, the act or omission complained of must be such that a
      person using the degree of care required of him would have foreseen that the
      event, or some similar event, might reasonably result therefrom. There may
      be more than one proximate cause of an event.

      Contingent on finding Wells Fargo's actions caused an injury, the jury was asked

"What sum of money, if any, if paid now in cash, would fairly and reasonably compensate

Susan and Jeanne Crocker for their damages, if any, that resulted from the injury you have

found?" The jury was instructed to consider only the following elements of damages:


                                            13
"[p]roperty belonging to the [e]state wrongfully distributed to a person . . . not entitled to

receive the property under the terms of the Will." The jury answered "$230,000.00." Based

on the damage question, the jury implicitly determined that an injury occurred because the

disputed funds belonged to the estate and were wrongfully distributed to Launa who was

not entitled to receive those funds under John's will.9

        In determining whether there is legally sufficient evidence to support the proximate

cause finding, we consider the following evidence favorable to the finding: (1) Wells Fargo

set up the disputed account10 as a joint account without ROS; (2) Wells Fargo paid

$230,000 to Launa after she claimed a right to the funds in the disputed account; (3) the

funds were paid to Launa and did not enter the estate; and (4) Susan and Jeanne were

residual beneficiaries under their father's will and stood to inherit the remainder of the

estate.11 While this evidence supports a finding that, through Wells Fargo's actions, the


         9
         W e note that this determ ination could be characterized as an issue of law; however, on appeal,
neither party has raised charge error in this regard. Therefore, we will consider the charge as a proper charge
and the jury as the proper party to determ ine this issue. See Romero v. KPH Consolidation, Inc., 166 S.W .3d
212, 221 (Tex. 2005); W al-Mart Stores, Inc. v. Sturges, 52 S.W .3d 711, 715 (Tex. 2001); see also Minn. Life
Ins. Co. v. Vasquez, 192 S.W .3d 774, 778 (Tex. 2006).

         10
         A copy of the disputed joint account sum m ary from April through June 2000 was adm itted as
Defense Exhibit 16. The sum m ary identified the account as John and Launa Crocker's "Inv Agency Account."
The holdings in the account consisted of m oney m arket and fixed incom e funds.

         11
           Susan and Jeanne contend that W ells Fargo's position that it paid the right person is wrong because
there was no right of survivorship created in the disputed account. They support their contention with the
following argum ents: (1) the absence of a signed agency agreem ent precluded the application of section 439
of the probate code, see T EX . P R O B . C OD E A N N . § 439 (Vernon 2003) (regarding rights of survivorship); (2) the
prem arital agreem ent applied only to "bank accounts," which they contend the jury im plicitly determ ined did
not include the disputed account; and (3) even if the disputed account could be considered a bank account,
they were harm ed by the breach because (a) the prem arital agreem ent only referred to a contractual obligation
to establish a ROS and did not create a ROS itself, and (b) W ells Fargo was bound by the form of the account
regardless of the threat of a future lawsuit or claim against the estate from Launa. However, although Susan
and Jeanne presented the foregoing argum ents at trial and now on appeal, they did not proffer testim ony to
substantiate these argum ents and to explain how they were entitled to the disputed funds. See King Ranch,
118 S.W .3d at 751. Rather, the only person who testified as to the ram ifications of the transaction was Sm ith,
who consistently testified that the m oney was properly distributed to Launa and who also testified that the
disputed account was a bank account. See supra n. 9.

                                                         14
money did not become part of the John's estate, this evidence is no more than a mere

scintilla to establish that the disputed funds actually belonged to the estate and were

wrongfully distributed to Launa. King Ranch, 118 S.W.3d at 751. Thus, we find no

evidence that an injury was shown.

       Moreover, the jury also heard the following testimony put on by Wells Fargo: (1) the

joint account at issue took its funds from two other joint accounts which contained

community property and provided for ROS; (2) John and Launa's premarital agreement

provided that "all bank accounts opened after the date of marriage in the names of both

[John and Launa] shall be considered community property" and "shall be held in such a

manner as to provide the right of survivorship to the remaining party upon the death of the

other"; (3) after John's death, Launa noticed that $334,000 was missing from one of her

joint accounts with ROS; (4) at John's request that money had been transferred into the

disputed joint account; (5) Launa's attorney contacted Wells Fargo to assert Launa's

entitlement to the funds in the disputed account; (6) Wells Fargo discussed this matter with

counsel who advised it that Launa was entitled to the funds; (7) Smith testified that it was

his opinion that Launa "was legally entitled to the funds in that account and that any

litigation with regard to that would result in additional expense to the estate"; (8) Smith also

testified that the disputed account was a "bank account" and was a joint account subject

to the right of a survivorship provided by the premarital agreement; and (9) when Wells

Fargo met with Launa, in accordance with Smith's advice, it distributed to Launa the full

$460,000 from the disputed joint account. We consider this contrary evidence in our legal

sufficiency review of this issue because we conclude that a reasonable juror could not have

disregarded it. See City of Keller, 168 S.W.3d at 807, 827.

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      In sum, Susan and Jeanne failed to carry their burden to establish causation; they

failed to establish that they were entitled to receive the $230,000. See King Ranch, 118

S.W.3d at 751. We sustain Wells Fargo's first issue on this basis.

                                III. PUNITIVE DAMAGES

      Having sustained Wells Fargo's actual damage issue, we need not review its

remaining issues challenging punitive damages. There can be no punitive damage award

without a recovery of actual damages. See Nabours v. Longview Sav. & Loan Ass'n, 700

S.W.2d 901, 904 (Tex. 1985); Doubleday & Co., Inc. v. Rogers, 674 S.W.2d 751, 753-54

(Tex. 1984); see also TEX . CIV. PRAC . & REM . CODE ANN . § 41.004(a) (Vernon 2008)

(codifying the common-law rule in actions governed by the exemplary damage statute).

                                   IV. CONCLUSION

      We reverse and render judgment that Susan Crocker and Jeanne Crocker take

nothing.



                                                 NELDA V. RODRIGUEZ
                                                 Justice

Delivered and filed the 29th
day of December, 2009.




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