       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00795-CV



                                     Culley Miller, Appellant

                                                 v.

                                       Rita Unger, Appellee


             FROM THE COUNTY COURT AT LAW OF TOM GREEN COUNTY
            NO. 08P315, HONORABLE MICHAEL D. BROWN, JUDGE PRESIDING



                            MEMORANDUM OPINION


               This proceeding is an ancillary matter in the probate proceeding of the estate of

Francis Keese. See Tex. Prob. Code Ann. § 4A(c) (West Supp. 2010); Kelley v. Barnhill,

188 S.W.2d 385, 386 (Tex. 1945) (stating that appeals may be taken from orders that finally dispose

of discrete issues in probate cases, even if order does not dispose of entire probate proceeding).

Appellant Culley Miller appeals from the trial court’s order granting appellee Rita Unger’s motion

to compel Miller to return certain funds to the estate. We affirm the trial court’s order.


                                         BACKGROUND

               Francis Keese died on May 16, 2008, leaving a will that named his daughter,

Rita Unger, and his step-son, Pat Stewart, as independent co-executors of his estate. Unger, Stewart,

and Miller were all devisees under the will. After the will was admitted to probate, Unger filed a

motion in the probate proceeding entitled, “Motion to Compel and Replacement of Funds into the
Estate Account.” Unger claimed that prior to Keese’s death, Miller had improperly withdrawn

approximately $91,000 of Keese’s funds from the San Angelo National Bank (“the Bank”), and

distributed those funds “to certain certificates of deposit in [Miller’s] name along with certain

individuals listed as ‘payable on death’ beneficiaries.” Unger further claimed that Keese had

directed Miller to make a $30,000 gift to Unger from Keese’s account, but that Miller had distributed

funds to himself and other individuals instead. Unger requested an order requiring Miller to return

the withdrawn funds to an account in the name of Keese’s estate.

                The trial court held an evidentiary hearing on Unger’s motion. All accounts and

certificates of deposit in Keese’s name were produced by the Bank pursuant to a subpoena duces

tecum.1 After hearing the evidence, the trial court entered an order finding that on or about April 22,

2008, Miller cashed in five certificates of deposit at the Bank, held as joint accounts with the right

of survivorship in the name of Keese, Miller, and Keese’s wife, now deceased. The court found the

total value of these accounts to be $91,451.59 at the time of the withdrawal. The court further found

that Miller withdrew an additional $7,000 from a specified checking account, and deposited all of

the withdrawn funds into a separate savings account. The order states that Miller then withdrew the

funds from the savings account and created new certificates of deposit in his name alone. Finally,

the order includes a finding that “at the time the certificates of deposit were cashed in and the $7,000

withdrawn, the money was the property of Francis M. Keese, and further that once the funds were

placed in the savings account, the funds were no longer subject to a survivorship clause in favor of




       1
          There is no reporter’s record of this hearing, and the subpoenaed bank records do not
appear in the clerk’s record.

                                                   2
[Miller], and the funds rightfully belong to the estate of [Keese].” The trial court ordered Miller to

return $98,451.59 to Unger in her capacity as co-independent executor of the estate, and ordered

Unger to then deposit the funds in a bank account in the name of the estate.

                Miller filed a motion for new trial, asserting that he was acting pursuant to a durable

power of attorney at the time he withdrew the funds, that he was acting at Keese’s direction, and that

there had been no showing that he acted fraudulently. Miller further argued that he had the authority

to withdraw $7,000 from the checking account at issue because he jointly owned the account with

Keese. Subsequently, the trial court issued findings of fact and conclusions of law, reiterating the

findings made in its original order. The trial court later issued a corrected finding that the certificates

of deposit were not held as joint accounts with the right of survivorship in the name of Keese, Miller,

and Keese’s wife, but were held solely in Keese’s name, with Miller as the payable-on-death

beneficiary. The trial court also made a finding that the funds Miller removed from the certificates

of deposit during Keese’s lifetime belonged to the estate at the time of Keese’s death. The trial court

further found that at the time of the withdrawals, Miller was Keese’s agent for banking transactions,

pursuant to a durable power of attorney executed by Keese. Miller’s motion for new trial was

overruled by operation of law, and this appeal followed.


                                             DISCUSSION

                In two issues on appeal, Miller argues that the trial court erred in (1) ordering him to

return the $91,451.59 withdrawn from the certificates of deposit and (2) ordering him to return the

$7,000 withdrawn from the checking account. Miller takes the position that the trial court’s order

was error because he was the joint owner of both the certificates of deposit and the checking account.

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In the alternative, Miller argues that his actions were proper because at the time of the withdrawals,

he was acting as Keese’s agent for banking transactions. See Tex. Prob. Code Ann. § 496 (West

2003) (governing durable power of attorney relating to banking transactions).

                As previously noted, there is no reporter’s record of the evidentiary hearing on

Unger’s motion to compel the return of the funds. Because no reporter’s record has been provided,

we must presume that the evidence presented at the hearing was sufficient to support the trial court’s

order. See Willms v. Americas Tire Co. Inc., 190 S.W.3d 796, 803 (Tex. App.—Dallas 2006, pet.

denied); see also Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (per curiam)

(holding that burden is on appellant to present sufficient record to show error requiring

reversal). Furthermore, the relevant bank records, which were produced at the hearing and reviewed

by the trial court, are not included in the appellate record. While both Miller and Unger reference

evidence and arguments presented at the hearing in their briefs on appeal, our consideration

is necessarily limited to the record before us. See Siefkas v. Siefkas, 902 S.W.2d 72, 74 (Tex.

App.—El Paso 1995, no writ); see also In re M.S., 115 S.W.3d 534, 546 (Tex. 2003) (“[T]his

Court—or any appellate court—may only consider the record presented to it, and we cannot

speculate on what might or might not be in the missing portions of the record.”).

                On the limited record before us, we cannot say that the trial court erred in ordering

Miller to return the funds in question to the estate. We must presume that the evidence presented

at the hearing supports the trial court’s finding that the certificates of deposit were not jointly owned

by Miller, as he contends, but were held solely in Keese’s name, with Miller as the payable-on-death

beneficiary. See Tex. Prob. Code Ann. § 438(b) (West 2003) (“A [payable-on-death] account



                                                   4
belongs to the original payee during his lifetime and not to the [payable-on-death] payee or payees.”).

We must also presume that the testimony at the hearing supports the trial court’s findings that the

funds removed from both the certificates of deposit and the savings account were Keese’s property

at the time of removal, that those funds belonged to the estate at the time of Keese’s death, and that

the funds should be returned to the estate.2 With respect to Miller’s argument that he was acting as

Keese’s agent at the time of the withdrawals, we must presume that the evidence at the hearing

supports the trial court’s implied finding that Miller did not properly withdraw the funds in his

capacity as Keese’s agent for banking transactions. See Vogt v. Warnock, 107 S.W.3d 778, 783-84

(Tex. App.—El Paso 2003, pet. denied) (holding that where individual possessing power of attorney

receives gift or bequest from principal, fiduciary relationship “cast[s] upon the profiting fiduciary

the burden of showing the fairness of the transaction[],” so that fiduciary must “be prepared to prove

the transaction was conducted with scrupulous fairness”). Because we cannot conclude that the trial

court erred in ordering Miller to return the funds in question to the estate, we overrule Miller’s issues

on appeal.




        2
           The record contains very little information regarding the checking account from which
Miller withdrew $7,000. The trial court’s order identifies the checking account number, but makes
no express finding as to the ownership of the account or the net contributions of any owner to the
account. See Tex. Prob. Code Ann. § 438(a) (West 2003) (“A joint account belongs, during the
lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on
deposit, unless there is clear and convincing evidence of a different intent.”); see also Plummer v.
Estate of Plummer, 51 S.W.3d 840, 842 (Tex. App.—Texarkana 2001, pet. denied). Similarly, no
such findings appear in the findings of fact and conclusions of law. We must therefore presume that
the evidence presented at the hearing supports the trial court’s finding that all of the withdrawn funds
were “the property of Francis M. Keese” at the time of the withdrawal and that those funds belonged
to the estate after Keese’s death.

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                                        CONCLUSION

              We affirm the trial court’s order.



                                             ___________________________________________

                                             Diane M. Henson, Justice

Before Chief Justice Jones, Justices Henson and Goodwin

Affirmed

Filed: August 4, 2011




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