                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-08-00145-CV

CONNIE NIPP,
                                                             Appellant
v.

TERRY LEE BROUMLEY, INDIVIDUALLY
AND AS INDEPENDENT EXECUTOR OF THE
ESTATE OF WALTERINE OPAL BROUMLEY,
                                                             Appellee



                      From the County Court at Law No. 2
                            Johnson County, Texas
                          Trial Court No. P200418368


                                    OPINION


      Connie Nipp and Terry Broumley dispute whether three certificates of deposit

belong to the estate of their deceased mother or were properly cashed by Broumley

about a week before their mother’s death. Following a bench trial, the trial court ruled

in Broumley’s favor but ordered him to pay a small portion of Nipp’s attorney’s fees.

Nipp contends: (1) there is no evidence or factually insufficient evidence to support the

court’s findings of fact with regard to ownership of the funds represented by the CD’s;
(2) the court’s conclusions of law with regard to ownership are erroneous; (3) the

judgment cannot be affirmed on a gift theory because the court made no findings of fact

on even one element of such theory and there is no evidence or factually insufficient

evidence to support recovery under this theory; (4) the judgment cannot be affirmed on

the theory that the CD’s were P.O.D. accounts because the court made no findings of

fact on even one element of such theory and there is no evidence or factually

insufficient evidence to support recovery under this theory; and (5) because the court

erred in its ownership determination, the court erred by failing to award Nipp all of her

attorney’s fees. We will reverse and render in part and reverse and remand in part.

                                            Background

        Walterine Opal Broumley initially purchased three CD’s “in the mid to late

[19]80’s.” The CD’s were payable to “Mrs. H. O. Broumley or Terry Broumley.”1 Over

the years, Mrs. Broumley renewed the CD’s when they matured. Terry used them as

collateral on occasions for various loans.               Mrs. Broumley was diagnosed with

inoperable cancer in late 2003 and was given about five months to live. Terry cashed

the three CD’s (collectively worth about $76,000) eight days before Mrs. Broumley died.

        Nipp had learned about the existence of the CD’s while caring for her mother in

her last months.       After Nipp discovered that the CD’s were not included in the

inventory of the assets of her mother’s estate, she filed suit seeking a declaration that




1
        Nipp testified that the initials “H. O.” referred to her father Herman Otis Broumley who died in
1978.


Nipp v. Broumley                                                                                 Page 2
the CD’s were property of the estate and an order requiring Terry to reimburse the

estate for their value.

        The trial court determined that the funds represented by the CD’s were jointly

owned by Terry and Mrs. Broumley, that Terry had the right to cash the CD’s, and that

the CD’s were not assets of the estate on the date of Mrs. Broumley’s death.

Nevertheless, the court ordered Terry to pay $625 of the $19,063 in attorney’s fees

sought by Nipp.2

                                           Issues Presented

        The items listed in the “Issues Presented” section of Nipp’s brief do not precisely

correspond with the issues outlined in her table of contents or in the argument portion

of her brief. Restated, Nipp contends that the court erroneously determined that Terry

owned the CD’s because: (1) there is no evidence and factually insufficient evidence to

support such a finding; (2) the court’s conclusions of law with respect to ownership are

erroneous; (3) the judgment cannot be affirmed on a gift theory because the court made

no findings of fact on even one element of such theory and there is no evidence or

factually insufficient evidence to support recovery under this theory; and (4) the

judgment cannot be affirmed on the theory that the CD’s were P.O.D. accounts because

the court made no findings of fact on even one element of such theory and there is no

evidence or factually insufficient evidence to support recovery under this theory.




2
         Terry represented himself at trial. The court calculated this sum by applying the hourly rate
testified to by Nipp’s attorney to a delay in trial of two and one-half hours occasioned by Terry’s inability
to have a witness in court sooner.


Nipp v. Broumley                                                                                      Page 3
        On the issue of attorney’s fees, Nipp contends that, because the court erred in its

ownership determination, the court erred by failing to award her all of her attorney’s

fees.

                                   Standard of Review

               Findings of fact in a bench trial have the same force and dignity as
        a jury’s verdict upon jury questions. When challenged on appeal, the
        findings are not conclusive on the appellate court if there is a complete
        reporter’s record, as there is here. Generally, we will not disturb a trial
        court’s findings if there is evidence of probative force to support them.

               Although we show deference to a trial court’s findings, those
        findings are reviewable for legal and factual sufficiency of the evidence by
        the same standards that are applied in reviewing evidence supporting a
        jury’s answers. We review the trial court’s conclusions of law de novo.
        Under de novo review, the reviewing court exercises its own judgment and
        redetermines each legal issue.

Wells Fargo Bank, N.A. v. Citizens Bank of Tex., N.A., 181 S.W.3d 790, 796 (Tex. App.—

Waco 2005, pet. denied) (citations omitted).

                                        Ownership

        Nipp contends that there is no evidence and factually insufficient evidence to

support the court’s findings of fact with regard to ownership of the funds represented

by the CD’s insofar as ownership of multiple-party accounts is defined by sections 436

through 438 of the Probate Code. She also contends that the court’s conclusions of law

with regard to ownership are erroneous.

        Section 436 provides various definitions for Chapter XI of the Probate Code

which are relevant to the parties’ dispute. See TEX. PROB. CODE ANN. § 436 (Vernon

2003). Certificates of deposit are included within the definition of “accounts.” Id. §



Nipp v. Broumley                                                                       Page 4
436(1); Bandy v. First State Bank, 835 S.W.2d 609, 615 (Tex. 1992). Joint accounts like the

CD’s at issue are considered “multiple-party accounts.” TEX. PROB. CODE ANN. § 436(5).

And a “party” to such accounts is defined as “a person who, by the terms of the

account, has a present right, subject to request, to payment from a multiple-party

account.” Id. § 436(7).

       Section 438(a) states, “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.” Id. § 438(a) (Vernon

2003). And section 437 explains that the pertinent statutes concern only the beneficial

ownership of such accounts and have no bearing on the right of withdrawal.

              The provisions of Sections 438 through 440 of this code that concern
       beneficial ownership as between parties, or as between parties and P.O.D.
       payees or beneficiaries of multiple-party accounts, are relevant only to
       controversies between these persons and their creditors and other
       successors, and have no bearing on the power of withdrawal of these
       persons as determined by the terms of account contracts.

Id. § 437 (Vernon 2003).

       Chapter XI also contains provisions which address the right of withdrawal and a

bank’s obligations with regard to that right. Section 444 provides:

              Financial institutions may enter into multiple-party accounts to the
       same extent that they may enter into single-party accounts. A multiple-
       party account may be paid, on request, to any one or more of the parties.
       A financial institution shall not be required to inquire as to the source of
       funds received for deposit to a multiple-party account, or to inquire as to
       the proposed application of any sum withdrawn from an account, for
       purposes of establishing net contributions.

Id. § 444 (Vernon 2003).



Nipp v. Broumley                                                                      Page 5
       Section 445 provides in pertinent part, “Any sums in a joint account may be paid,

on request, to any party without regard to whether any other party is incapacitated or

deceased at the time the payment is demanded.” Id. § 445 (Vernon 2003). And section

448 provides in pertinent part, “Payment made as provided by Section 444, 445, 446, or

447 of this code discharges the financial institution from all claims for amounts so paid

whether or not the payment is consistent with the beneficial ownership of the account

as between parties, P.O.D. payees, or beneficiaries, or their successors.”          Id. § 448

(Vernon 2003).

       In addition to these statutes, the Uniform Commercial Code contains relevant

provisions. Under the UCC, “’[c]ertificate of deposit’ means an instrument containing

an acknowledgment by a bank that a sum of money has been received by the bank and

a promise by the bank to repay the sum of money. A certificate of deposit is a note of

the bank.” TEX. BUS. & COM. CODE ANN. § 3.104(j) (Vernon Supp. 2008); May v. Walter,

956 S.W.2d 138, 142 (Tex. App.—Amarillo 1997, pet. denied); see Thompson v. Thompson,

149 Tex. 632, 236 S.W.2d 779, 791 (1951) (pre-UCC decision);3 Dallas/Fort Worth Airport

Bank v. Dallas Bank & Trust Co., 667 S.W.2d 572, 575 (Tex. App.—Dallas 1984, no writ)

(citing previous version of UCC).

       “If an instrument is payable to two or more persons alternatively, it is payable to

any of them and may be negotiated, discharged, or enforced by any or all of them in

possession of the instrument.” TEX. BUS. & COM. CODE ANN. § 3.110(d) (Vernon 2002).



3
        The Uniform Commercial Code was not enacted in Texas until 1965. See Uniform Commercial
Code, 59th Leg., R.S., ch. 721, 1965 Tex. Gen. Laws 1.


Nipp v. Broumley                                                                         Page 6
As Comment 4 to section 3.110 explains, “If an instrument is payable to X or Y, either is

the payee and if either is in possession that person is the holder and the person entitled

to enforce the instrument.” Id. cmt. 4.

        It is important to distinguish between the right of negotiation or enforcement of

the CD’s themselves and beneficial ownership of the funds the CD’s represent. See

Kenneth McLaughlin, Jr., Joint Accounts, Totten Trusts, and the Poor Man’s Will, 44 TEX.

B.J. 871, 875 (1981). A CD constitutes intangible personal property which is a record of

the debt owed by the bank to the holder(s) but does not establish ownership of the

funds evidenced by the CD. See Edwards v. Pena, 38 S.W.3d 191, 197 (Tex. App.—

Corpus Christi 2001, no pet.); May, 956 S.W.2d at 142; see also TEX. TAX CODE ANN. §

1.04(6) (Vernon 2008). Section 438 governs the beneficial ownership of funds evidenced

by a multiple-party CD. See TEX. PROB. CODE ANN. §§ 437, 438; Stegall v. Oadra, 868

S.W.2d 290, 292 (Tex. 1993).

        Conversely, sections 444 through 450 are designed primarily for the benefit and

protection of the bank and do not govern ownership of the funds represented by a

multiple-party CD. See Stegall, 868 S.W.2d at 293; Bandy, 835 S.W.2d at 616; see also

Chopin v. Interfirst Bank Dallas, N.A., 694 S.W.2d 79, 83 (Tex. App.—Dallas 1985, writ

ref’d n.r.e.).

        Here, the court stated in Finding of Fact No. VI that Terry and Mrs. Broumley

“owned” the three CD’s. In Conclusion of Law No. XII,4 the court found as a matter of


4
         We are not bound by the labels the court applied to its findings of fact and conclusions of law.
See Ray v. Farmers State Bank of Hart, 576 S.W.2d 607, 608 n.1 (Tex. 1979); Clay v. Mercado, 224 S.W.3d 277,
283 n.1 (Tex. App.—El Paso 2005, no pet.).


Nipp v. Broumley                                                                                     Page 7
law that they were “joint owners” of the CD’s when Terry cashed them. In Conclusion

of Law No. XIII, the court found as a matter of law that Terry then had “the present

right . . . to request and receive payment of the sums on deposit” evidenced by the

CD’s. And in Conclusion of Law No. XIV, the court found as a matter of law that (1)

these “sums of deposit     . . . were multi-party accounts jointly owned by [Mrs.

Broumley and Terry]” when he cashed the CD’s and (2) these sums “were not assets of

the estate” of Mrs. Broumley at her death.

       It appears from the court’s findings of fact and conclusions of law that the court

based its ownership determination solely on Terry’s status as a party to the CD’s who

had an undisputed right to withdraw the funds represented by the CD’s. See TEX. PROB.

CODE ANN. §§ 437, 444, 445; see also TEX. BUS. & COM. CODE ANN. § 3.110(d). However,

beneficial ownership of the funds is determined by application of section 438 and is

distinct from the right of withdrawal. See TEX. PROB. CODE ANN. §§ 437, 438; Stegall, 868

S.W.2d at 293; Bandy, 835 S.W.2d at 616; Chopin, 694 S.W.2d at 83.

       It is undisputed that Mrs. Broumley was the sole source of the funds at issue.

Therefore, she retained beneficial ownership of these funds at the time of their

withdrawal absent clear and convincing evidence to the contrary. See TEX. PROB. CODE

ANN. § 438(a).

                                             Gift

       At trial, Terry took the position that the funds were a gift to him from his mother.

Much of the parties’ closing argument focused on whether Terry proved the elements of

a gift. Nipp argues that the court’s findings are silent on this theory. She argues in the


Nipp v. Broumley                                                                     Page 8
alternative that there is no evidence or factually insufficient evidence to support a

finding on this theory.

       Nipp’s contention that the court made no findings on any element of the gift

theory is based on Rule of Civil Procedure 299, which provides:

             When findings of fact are filed by the trial court they shall form the
       basis of the judgment upon all grounds of recovery and of defense
       embraced therein. The judgment may not be supported upon appeal by a
       presumed finding upon any ground of recovery or defense, no element of
       which has been included in the findings of fact; but when one or more
       elements thereof have been found by the trial court, omitted unrequested
       elements, when supported by evidence, will be supplied by presumption
       in support of the judgment. Refusal of the court to make a finding
       requested shall be reviewable on appeal.

TEX. R. CIV. P. 299.

       We begin by examining the elements necessary to establish the existence of a gift.

              A gift is a voluntary transfer of property to another made
       gratuitously and without consideration. Three elements are required to
       establish the existence of a gift: (1) the donor’s intent to make a gift; (2)
       delivery of the property; and (3) acceptance of the property. Donative
       intent must exist at the time of the transfer, not at the time of a subsequent
       event.

Lopez v. Lopez, 271 S.W.3d 780, 788 (Tex. App.—Waco 2008, no pet.) (citations omitted);

accord Magness v. Magness, 241 S.W.3d 910, 912 (Tex. App.—Dallas 2007, pet. denied).

       The court stated in Finding of Fact No. XII that the bank “paid all sums on

deposit” for the CD’s to Terry. We construe this as a finding that the funds were

delivered to Terry, and delivery is one of the elements of a gift. See Bishop v. Bishop, 359

S.W.2d 869, 871 (Tex. 1962) (delivery of gift may be accomplished by actual or

constructive delivery); Smith v. Smith, 607 S.W.2d 617, 620 (Tex. Civ. App.—Waco 1980,



Nipp v. Broumley                                                                        Page 9
no writ) (same). Therefore, we will examine the record to determine whether there is

evidence to support implied findings on the other two elements. See TEX. R. CIV. P. 299.

       Terry bore the burden of proving that a gift was made. Hayes v. Rinehart, 65

S.W.3d 286, 289 (Tex. App.—Eastland 2001, no pet.); Edwards, 38 S.W.3d at 197; Dorman

v. Arnold, 932 S.W.2d 225, 228 (Tex. App.—Texarkana 1996, no writ); cf. Akin v. Akin, 649

S.W.2d 700, 703 (Tex. App.—Fort Worth 1983, writ ref’d n.r.e.) (appellee had burden to

prove gift to overcome community-property presumption).           He had to prove the

making of a gift by clear and convincing evidence. See TEX. PROB. CODE ANN. § 438(a);

Hayes, 65 S.W.3d at 289. Because of this elevated burden of proof at trial, an elevated

standard of review also applies on appeal. Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627

(Tex. 2004).

       Under a no-evidence review, we view all the evidence in the light most favorable

to the court’s finding, taking into account contrary undisputed evidence, to determine

whether a reasonable factfinder could have formed a firm belief or conviction regarding

the making of a gift. Id. Under a factual sufficiency review, we ask whether the

“disputed evidence is such that a reasonable factfinder could not have resolved that

disputed evidence in favor of its finding.” In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)

(citing In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)).

       The alleged donor’s intent is the primary issue. Hayes, 65 S.W.3d at 289; Lee v.

Lee, 43 S.W.3d 636, 642 n.4 (Tex. App.—Fort Worth 2001, no pet.); Dorman, 932 S.W.2d at

227; Thompson v. Lawson, 793 S.W.2d 94, 96 (Tex. App.—Eastland 1990, writ denied).




Nipp v. Broumley                                                                   Page 10
       Among the indispensable conditions of a valid gift are the intention of the
       donor to absolutely and irrevocably divest himself of the title, dominion,
       and control of the subject of the gift in praesenti at the very time he
       undertakes to make the gift; . . . the irrevocable transfer of the present
       title, dominion, and control of the thing given to the donee, so that the
       donor can exercise no further act of dominion or control over it.

Harmon v. Schmitz, 39 S.W.2d 587, 589 (Tex. Comm’n App. 1931, judgm’t adopted)

(quoting Allen-West Comm’n Co. v. Grumbles, 129 F. 287, 290 (8th Cir. 1904)). Thus the

requisite donative intent is established by, among other things, evidence that the donor

intended an immediate and unconditional divestiture of his or her ownership interests and

an immediate and unconditional vesting of such interests in the donee. See Wells v.

Sansing, 151 Tex. 36, 245 S.W.2d 964, 965 (Tex. 1952); Edwards, 38 S.W.3d at 197; Oadra v.

Stegall, 871 S.W.2d 882, 890 (Tex. App.—Houston [14th Dist.] 1994, no writ); Thompson,

793 S.W.2d at 96; Akin, 649 S.W.2d at 703.

       Here, Terry testified that Mrs. Broumley first purchased the CD’s about twenty

years ago and renewed them from time to time as they matured. Terry used them as

collateral on occasions for various loans, but there is no evidence that he ever withdrew

any of the funds represented by the CD’s until eight days before Mrs. Broumley’s death.

Terry testified that “[t]here were several instances” over the years when Mrs. Broumley

discussed with him her intent that he have those funds “to use as [he] needed or as [he]

pleased.” The last time they had such a conversation was at some unspecified time

“before the bad days of her illness” when she started receiving hospice care.




Nipp v. Broumley                                                                     Page 11
       During this same period, Terry conceded that Mrs. Broumley retained the

authority to cash the CD’s herself. She kept the CD’s in a lock box in her home where

they remained until Terry retrieved them and cashed them at the bank.

       Under similar factual circumstances, Texas courts have consistently concluded

that no gift of funds was made. See Hayes, 65 S.W.3d at 289; McConathy v. McConathy,

No. 05-95-1036-CV, 1997 WL 145172, at *4 (Tex. App.—Dallas Apr. 1, 1997, writ denied)

(not designated for publication); Dorman, 932 S.W.2d at 227-28; Oadra, 871 S.W.2d at 893;

Akin, 649 S.W.2d at 704-05; see also Ayers v. Mitchell, 167 S.W.3d 924, 929-30 (Tex. App.—

Texarkana 2005, no pet.) (applying gift law to alleged transfer of trust property). First,

the evidence establishes that days or weeks passed between the date of Terry’s last

conversation with Mrs. Broumley about the CD’s and the date he cashed them. And

second, Mrs. Broumley retained control over the funds represented by the CD’s until

the date Terry withdrew those funds.       Thus, no reasonable factfinder could have

formed a firm belief or conviction that an immediate and unconditional divestiture of

Mrs. Broumley’s ownership occurred on the occasion of their last conversation

regarding her intentions about the CD’s. Id.

                                     Other Theories

       Nipp contends that the court did not make a finding on even one element of the

alternative theory that the CD’s were P.O.D. accounts. She argues in the alternative that

there is no evidence or factually insufficient evidence to support a finding on this

theory. However, Terry did not pursue this theory at trial, nor does he on appeal.

Thus, we do not address whether the CD’s were P.O.D. accounts.


Nipp v. Broumley                                                                   Page 12
        A bank officer testified that the CD’s were joint accounts with rights of

survivorship.      However, the record contains no written agreement between Mrs.

Broumley and the bank evidencing that the CD’s were accounts with rights of

survivorhip. A written agreement is required by section 439(a) of the Probate Code,

and parol evidence is not admissible to prove a right of survivorship in an account

governed by this statute. TEX. PROB. CODE ANN. § 439(a) (Vernon 2003); A.G. Edwards &

Sons, Inc. v. Beyer, 235 S.W.3d 704, 708 (Tex. 2007); Stauffer v. Henderson, 801 S.W.2d 858,

865-66 (Tex. 1990).

        Accordingly, there is no evidence in the record to support a finding that the CD’s

were joint accounts with rights of survivorship.

                                           Attorney’s Fees

        Finally, Nipp argues that, because the court’s findings and conclusions with

regard to ownership of the funds are erroneous, the court likewise erred by failing to

award her all of her attorney’s fees.

        Although Nipp’s attorney testified5 concerning reasonable and necessary

attorney’s fees, the court made no findings of fact or conclusions of law on the issues of

whether Nipp was entitled to attorney’s fees or the amount of reasonable and necessary

attorney’s fees incurred. Nipp did not object to the absence of such findings, even

though she filed a request for findings of fact and conclusions of law and later filed a

notice of past due findings of fact and conclusions of law. Because of the absence of any

5
         Terry complains that Nipp’s attorney provided no sworn testimony. However, Terry waived the
requirement that the witness be placed under oath by failing to object when the court permitted counsel
to testify without first being placed under oath. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (per
curiam); Keith v. Keith, 221 S.W.3d 156, 169-70 (Tex. App.—Houston [1st Dist.] 2006, no pet.).


Nipp v. Broumley                                                                                   Page 13
findings on the issue of attorney’s fees, we will not render judgment in Nipp’s favor for

attorney’s fees. See Nelson v. Nelson, 193 S.W.3d 624, 630 (Tex. App.—Eastland 2006, no

pet.); cf. Buckeye Retirement Co., LLC v. Bank of Am., N.A., 239 S.W.3d 394, 405-06 (Tex.

App.—Dallas 2007, no pet.) (affirming denial of attorney’s fees where bank did not

object to lack of findings or request additional findings). Instead, we will remand for

the court to reconsider whether to award attorney’s fees.

                                       Conclusion

       Mrs. Broumley retained beneficial ownership of the funds represented by the

CD’s until her death. There is no evidence to support a finding that she made a gift of

these funds to Terry or that he obtained ownership of the funds under some other

theory. Thus, the court erred by concluding that Terry owned these funds at the time of

withdrawal.

       Accordingly, we reverse the judgment of the trial court and render judgment in

part declaring that the funds represented by the CD’s were the property of Mrs.

Broumley at the time of her death and are property of the estate. We further remand

this cause to the trial court to reconsider whether to award attorney’s fees to Nipp.




                                                        FELIPE REYNA
                                                        Justice




Nipp v. Broumley                                                                    Page 14
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurring with note)*
Reversed and rendered in part,
       Reversed and remanded in part
Opinion delivered and filed April 1, 2009
[CV06]

*       (Chief Justice Gray concurs in the judgment to the extent that it determines the
certificates of deposit were owned by Opal Broumley at the time they were cashed out
by Terry Broumley and that as a result thereof the Estate of Opal Broumley has a claim
against Terry Broumley for the amount thereof. Further, Chief Justice Gray concurs in
the remand of this proceeding to the trial court for reconsideration by the trial court of
the issue of attorney’s fees. Other than as expressly stated in this note, Chief Justice
Gray does not join the opinion or judgment. A separate opinion will not follow.)




Nipp v. Broumley                                                                   Page 15
