                             NUMBER 13-13-00149-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

RONDA KIRKPATRICK,                                                           Appellant,

                                            v.

KENNETH A. CUSICK,                                                            Appellee.


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


                         MEMORANDUM OPINION
                Before Justices Rodriguez, Garza and Perkes
                  Memorandum Opinion by Justice Garza

      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


        1
          Kenneth made at least one other distribution to Ronda out of the account funds, but the record
does not reveal the precise amount.

                                                   2
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 [Ronda]’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


        2
          Donna filed a separate motion for summary judgment which was granted. Ronda later non-
suited her claims against Donna. Donna is not a party to this appeal.
        3
           In another part of the motion, Kenneth asserts: “There is no evidence that [Gwen] failed to
understand what she was doing when she opened the bank accounts and named [Kenneth] joint owner
with right of survivorship and pay-on-death beneficiary, that she was not of sound mind to do so, or that
she was coerced in any way.”

                                                   3
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.



                                            4
              ....

       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 [Gwen]’s checking accounts, and (b) [Kenneth]’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]

                                            5
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 and Donna when she died.” Kenneth further testified as follows

in response to questions posed by Ronda’s counsel:

        Q.      Isn’t it true that you told Ronda and [Ronda’s husband Jon]
                Kirkpatrick that your intention was after [Gwen]’s death for the
                money in those two accounts to be divided equally between Ronda
                and Donna?

        A.      My original intent was after all administration of estate expenses,
                taxes, fees, anything related is—is paid, then as the beneficiaries,
                those two should each receive the—the residue.

        Q.      Okay. That was your original plan?

        A.      Yes.

        Q.      And you told that to [Jon] and [Ronda] before [Gwen] died, didn’t
                you?

                ....

        A.      If I put it in—as a condition if she behaved, let me do my job as
                executor, pay everything off, assist and not obstruct, yes, that her
                and Donna would share in what was left.[4]

Kenneth stated that he made payments to Ronda after Gwen’s death because he “was

trying to show my good faith and that that was my intent to follow through with that.” He

characterized the payments as “gifts.” He further conceded that he used some of the

account funds for personal “expenditures” because “[i]t’s my money.”

        Ronda’s response to the summary judgment motion also included affidavits by

herself and her husband. Ronda stated that her mother “specifically told me she was

splitting everything she had equally between Donna and me.” Both Ronda and her


        4
           Kenneth later denied that he told Ronda prior to Gwen’s death of his “original intent” regarding
distribution of the account funds.

                                                    6
husband averred that Kenneth assured them, prior to Gwen’s death, that he was being

named on the accounts “solely for the purpose of giving him the ability to sign checks on

her accounts in order to pay her bills in the event she could no longer do it herself.”

According to Ronda, Kenneth continued, after Gwen’s death, to tell her that he was

going to distribute the estate funds in equal shares to Donna and Ronda after paying

estate expenses. Ronda averred that Kenneth told Gwen, on her death bed, “don’t

worry I’ll take care of your girls.”

       The trial court granted Kenneth’s motion for summary judgment. Ronda then

filed a notice of non-suit pertaining to “[a]ll claims against [Kenneth] for violation of

fiduciary duties owed to [Ronda] before the death of [Gwen].” The notice stated:

       This nonsuit does not affect or dismiss [Ronda]’s claims against [Kenneth]
       for violation of fiduciary duties [owed] to [Gwen] before her death nor for
       violations of fiduciary duty committed by [Kenneth] in the performance of
       his duties as executor of [Gwen’s estate], all of which [Ronda] continues to
       assert in this cause.

Ronda later filed a separate notice non-suiting “all claims and causes of action that have

not been previously nonsuited or adjudicated by summary judgment in this cause.” This

appeal followed.

                                       II. DISCUSSION

A.     Standard of Review

       Kenneth’s motion for summary judgment does not explicitly state whether it was

brought on traditional or no-evidence grounds. However, the motion relies heavily on

Perez’s deposition testimony. Cf. TEX. R. CIV. P. 166a(i) (stating that a no-evidence

motion for summary judgment is made “without presenting summary judgment

evidence”); Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004) (noting that the



                                             7
attachment of evidence does not convert a no-evidence motion into a traditional motion

for summary judgment). Moreover, though the motion asserts that “no evidence exists

that [Gwen] suffered any kind of mental incapacity” or “was coerced in any way into

opening the bank accounts,” it neither cites rule of civil procedure 166(a)(i) nor specifies

which elements of Ronda’s causes of action, if any, lack evidentiary support. Cf. TEX.

R. CIV. P. 166a(i) (stating that a no-evidence motion for summary judgment “must state

the elements as to which there is no evidence”). Accordingly, we construe Kenneth’s

motion as asserting traditional grounds for summary judgment only. See TEX. R. CIV. P.

166a; see also Richard v. Reynolds Metal Co., 108 S.W.3d 908, 911 (Tex. App.—

Corpus Christi 2003, no pet.) (noting that, when it is not readily apparent that summary

judgment is sought on no-evidence grounds, “the court should presume that it is filed

under the traditional summary judgment rule and analyze it according to those well-

recognized standards”).

       A motion for traditional summary judgment must show that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of law. TEX.

R. CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). The

movant bears the burden of proof, and all doubts about the existence of a genuine issue

of material fact are resolved against the movant. See Sw. Elec. Power Co., 73 S.W.3d

at 215. We take as true all evidence favorable to the non-movant, and we indulge every

reasonable inference and resolve any doubts in the non-movant’s favor.             Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We review the trial court’s

granting of a traditional motion for summary judgment de novo.            Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); Branton v. Wood, 100



                                             8
S.W.3d 645, 646 (Tex. App.—Corpus Christi 2003, no pet.). We will affirm a summary

judgment if any of the theories presented to the trial court and preserved for appellate

review are meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157

(Tex. 2004).

B.     Applicable Law

       1.      Right of Survivorship Accounts

       Section 439 of the probate code provides the exclusive means for creating a right

of survivorship in joint accounts in Texas. Stauffer v. Henderson, 801 S.W.2d 858, 862

(Tex. 1990). The statute provides, in relevant part:

       Sums remaining on deposit at the death of a party to a joint account
       belong to the surviving party or parties against the estate of the decedent
       if, by a written agreement signed by the party who dies, the interest of
       such deceased party is made to survive to the surviving party or parties.
       Notwithstanding any other law, an agreement is sufficient to confer an
       absolute right of survivorship on parties to a joint account under this
       subsection if the agreement states in substantially the following form: “On
       the death of one party to a joint account, all sums in the account on the
       date of the death vest in and belong to the surviving party as his or her
       separate property and estate.”

TEX. PROB. CODE ANN. § 439(a) (West 2003). The statute “makes a written agreement

determinative of the existence of a right of survivorship in a joint account.” Stauffer, 801

S.W.2d at 863. “If such agreement is complete and unambiguous, then parol evidence

is inadmissible, as with written agreements generally, to vary, add to or contradict its

terms.” Id. Furthermore,

       no presumption can be created to contradict the agreement or to supply a
       term wholly missing from its provisions. Any such presumption would
       violate both the parol evidence rule by necessitating admission of extrinsic
       evidence to rebut the presumption, and the express prohibition of section
       439(a) against inferring a right of survivorship from the mere creation of a
       joint account. Thus, if the terms of an agreement pertaining to a joint



                                             9
          account are clear, the parties may not introduce extrinsic evidence of the
          parties’ intent.

Id. at 863–64.

          2.     Breach of Fiduciary Duty

          There are two types of fiduciary relationships in Texas: (1) a formal fiduciary

relationship arising as a matter of law, such as between partners or an attorney and a

client; and (2) an informal or confidential fiduciary relationship, arising from a moral,

social, domestic, or merely personal relationship where one person trusts in and relies

upon another. Crim Truck & Tractor v. Navistar Int’l Transp. Corp., 823 S.W.2d 591,

594 (Tex. 1992); Smith v. Deneve, 285 S.W.3d 904, 911 (Tex. App.—Dallas 2009, no

pet.).5

          The determination of the existence of a confidential fiduciary relationship is

normally for the trier of fact. Hoggett v. Brown, 971 S.W.2d 472, 488 (Tex. App.—

Houston [14th Dist.] 1997, pet. denied). A confidential fiduciary relationship may exist

where influence has been acquired and abused, or where confidence has been reposed

and betrayed.       Crim Truck, 823 S.W.2d at 594.               A family relationship, while it is

considered as a factor, does not by itself establish a fiduciary relationship. Moore, 595

S.W.2d at 508. As the Texas Supreme Court stated in Moore:

          [W]here trust is reposed and substantial benefits gained equity will
          recognize that the beneficiary in such transactions is a fiduciary, and as
          such is under the fiducial obligation of establishing the fairness of the
          transaction to his principal. . . . [T]he imposition by equity of a fiduciary
          relationship in such circumstances does no more than cast upon the
          profiting fiduciary the burden of showing the fairness of the transactions.


          5
           The relationship between an executor and the estate’s beneficiaries is one that gives rise to a
fiduciary duty as a matter of law. Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996). However, Ronda
non-suited her claim that Kenneth violated fiduciary duties owed to her as a beneficiary of Gwen’s estate.
Accordingly, that claim is not before us on appeal.

                                                   10
Id. at 508–09. Texas appellate courts have held, consistent with Moore, that when a

fiduciary accepts a gift or bequest from the principal, a burden is placed on the fiduciary

to demonstrate the fairness of the transaction. See Young v. Fawcett, 376 S.W.3d 209,

216 (Tex. App.—Beaumont 2012, no pet.); Daniel v. Falcon Interest Realty Corp., 190

S.W.3d 177, 185 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (noting that a fiduciary

has a “duty to deal fairly with the principal in all transactions between them”); Gatlin v.

GXG, Inc., No. 05-93-01852-CV, 1994 WL 137233, at *5 (Tex. App.—Dallas Apr. 19,

1994, no writ) (per curiam); Chien v. Chen, 759 S.W.2d 484, 495 (Tex. App.—Austin

1988, no writ) (noting that “[a]ll transactions between the fiduciary and his principal are

presumptively fraudulent and void”).

       In establishing the fairness of a transaction involving a fiduciary, some of the

most important factors are:      (1) whether there was full disclosure regarding the

transaction, (2) whether the consideration (if any) was adequate, (3) whether the

beneficiary had the benefit of independent advice, (4) whether the fiduciary benefitted at

the expense of the beneficiary, and (5) whether the fiduciary significantly benefitted from

the transaction as viewed in light of circumstances existing at the time of the

transaction. Lee v. Hasson, 286 S.W.3d 1, 21 (Tex. App.—Houston [14th Dist.] 2007,

pet. denied).

C.     Analysis

       As a result of Ronda’s notices of non-suit, filed after partial summary judgment

was rendered, the only one of Ronda’s original claims at issue in this appeal is her claim

that Kenneth violated fiduciary duties owed to Gwen before Gwen’s death and in his

performance as executor of Gwen’s estate.        Kenneth bore the initial burden, as a



                                            11
movant for traditional summary judgment, to establish his entitlement to judgment as a

matter of law on this claim. See TEX. R. CIV. P. 166a(c); Sw. Elec. Power Co., 73

S.W.3d at 215. “The non-movant has no burden to respond to or present evidence

regarding the motion until the movant has carried its burden to conclusively establish

the cause of action or defense on which its motion is based.” State v. $90,235.00 in

U.S. Currency, 390 S.W.3d 289, 292 (Tex. 2013), Petree v. S. Farm Bureau Cas. Ins.

Co., 315 S.W.3d 254, 258 (Tex. App.—Corpus Christi 2010, no pet.). Therefore, if

Kenneth’s motion did not by itself establish his entitlement to judgment as a matter of

law, then Ronda had no burden to produce evidence generating a fact issue. See M.D.

Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (“Summary

judgments must stand on their own merits.         Accordingly, the nonmovant need not

respond to the motion to contend on appeal that the movant’s summary judgment proof

is insufficient as a matter of law to support summary judgment.”).

       Here, Kenneth’s summary judgment motion relied exclusively on the fact that

Gwen knowingly and voluntarily named Kenneth as a joint tenant with right of

survivorship on the two Prosperity Bank accounts. The evidence attached to his motion

does, indeed, establish that fact. Perez’s deposition testimony shows that she properly

informed Gwen of the ramifications of naming Kenneth as a joint tenant with right of

survivorship, and that Gwen voluntarily executed the forms establishing the accounts.

But this fact alone does not establish Kenneth’s entitlement to judgment as a matter of

law on Ronda’s claim. That is, even if Gwen knowingly and voluntarily named Kenneth

as a joint tenant with right of survivorship on the bank accounts, that fact by itself does




                                            12
not conclusively demonstrate that Ronda could not prove her pleaded allegations that

Kenneth breached a fiduciary duty to Gwen.

       Two cases cited by Ronda are instructive in this regard. In Morehead v. Gilmore,

2003 WL 1848724 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (mem. op.), the First

District Court of Appeals considered a similar fact pattern and found sufficient evidence

to support a finding of a fiduciary relationship. In that case, the Gilmores named their

daughter Patsy as executor of their will and as their attorney-in-fact. Id. at *1. The

Gilmores began transferring assets to Patsy, and they named Patsy as a joint tenant

with right of survivorship on two certificate of deposit accounts. Id. Patsy told her seven

siblings that any of their parents’ money that was available at their deaths would be split

equally among the siblings. Id. However, when the Gilmores died, Patsy kept all the

funds in the accounts for herself. Id. at *2. The court held:

       The evidence suggests that Mr. Gilmore and appellees relied on Patsy’s
       assertions that she would assist Mr. and Mrs. Gilmore with their finances,
       and that the assets were to be managed by Patsy for the benefit of all of
       the children. We hold that, in this situation, where the evidence shows
       that, in a family setting, Patsy encouraged appellees to rely on her
       management of their parents’ assets, and where there is evidence that
       appellees did rely on Patsy to manage the assets, there is some evidence
       of a fiduciary relationship.

Id. at *3 (citing Moore, 595 S.W.2d at 507).

       Also relevant here is Vogt v. Warnock, 107 S.W.3d 778 (Tex. App.—El Paso

2003, pet denied), in which the El Paso Court of Appeals considered whether a breach

of fiduciary duty action could be sustained by the estate of Barton Warnock against

Rebecca Vogt. Warnock named Vogt, a woman forty years his junior, as his attorney-

in-fact; he later transferred several parcels of real property to her. Id. at 780. After

Warnock died, the executor of his estate sued Vogt, alleging several causes of action.

                                            13
Id. at 781. At trial, the estate dropped all of its claims except for the fiduciary duty claim,

and it “stipulated that [Warnock] had done what he wanted to do in transferring property,

and his competency and undue influence were no longer questions that would be

submitted to the jury.”        Id.   The trial court ruled as a matter of law that Vogt was

Warnock’s fiduciary, thereby shifting the burden of proof to Vogt to prove that the

property transfers to her were fair. Id. The jury then found after trial that some of the

transfers were unfair, and the trial court rendered judgment voiding those transfers. Id.

On Vogt’s appeal, the court of appeals affirmed the trial court’s legal conclusion that

Vogt was a fiduciary solely on the basis of the power of attorney, even though Vogt

never actually performed any actions as Warnock’s attorney-in-fact. Id. at 782.6

        Applying the analysis used by Morehead and Vogt, Ronda could establish that

Kenneth owed a fiduciary duty to Gwen and breached that duty, despite the fact (as

established by Kenneth’s summary judgment evidence) that Gwen knowingly and

voluntarily made Kenneth a joint tenant with right of survivorship on the Prosperity Bank

accounts.7      For example, if Ronda produced evidence, in accordance with her


        6
          Vogt is partially distinguishable from the instant case in that the disputed transfers there took
place after the decedent had executed the power of attorney. Vogt v. Warnock, 107 S.W.3d 778, 780
(Tex. App.—El Paso 2003, pet denied). Here, it is undisputed that Gwen named Kenneth as joint tenant
on the bank accounts prior to naming Kenneth as her attorney-in-fact. Nevertheless, Vogt is relevant
because it establishes that a fiduciary bears a burden to prove that any transactions with the principal are
fair, even when it is “stipulated that [the decedent] had done what he wanted to do in transferring
property, and his competency and undue influence were no longer questions . . . .” Id. at 781.
        7
         As it turned out, the evidence produced by Ronda in response to Kenneth’s motion showed only
that: (1) Gwen told Ronda she intended to “split[] everything she had equally” between her two
daughters; (2) Kenneth assured Ronda and her husband that he was only being named on the accounts
so that he could pay Gwen’s bills in the event of her incapacity; and (3) Kenneth originally intended to
give Ronda half of the account funds after paying estate expenses.

        Kenneth contends that this evidence is inadmissible because it constitutes parol evidence
seeking to “vary, add to or contradict” the terms of the joint accounts. See Stauffer v. Henderson, 801
S.W.2d 858, 863 (Tex. 1990); Punts v. Wilson, 137 S.W.3d 889 (Tex. App.—Texarkana 2004, no pet.);
see also TEX. PROB. CODE ANN. § 439(a) (West 2003). We disagree that this was inadmissible parol
evidence because it was not intended to “vary, add to or contradict” the terms of the accounts. See

                                                    14
pleadings, that Kenneth owed a fiduciary duty to Gwen as a result of his “(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,” then she could have established that

Kenneth owed a fiduciary duty to Gwen as of early August 2009 when he agreed to

manage Gwen’s finances. The burden would then be placed on Kenneth to establish

that any transactions between him and Gwen were fair. See Moore, 595 S.W.2d at

508–09.

       Kenneth points to Punts v. Wilson, 137 S.W.3d 889 (Tex. App.—Texarkana

2004, no pet.), in support of his argument that a breach of fiduciary duty action cannot

be based on a facially valid right of survivorship account. In that case, J.W. Kelly

named Hubert Wilson as pay-on-death beneficiary of several credit union accounts, as

one of two residual beneficiaries of his will, and as the executor of his will. Id. at 890.

When Kelly died, the other residual beneficiary of his estate, Edward Punts, sued

Wilson, claiming that Wilson “breached his fiduciary duty to [Punts] as a beneficiary of

the will by paying the [credit union] funds directly to him instead of depositing the funds

into Kelly’s estate, thereby depriving [Punts] of his fifty percent residual share.” Id. at

890–91. The Texarkana Court of Appeals concluded that Wilson “did not owe any


Stauffer, 801 S.W.2d at 863. Ronda does not dispute that, under the unequivocal terms of the joint
accounts, Kenneth became sole owner of the funds in the accounts upon Gwen’s death. Instead, the
evidence she attached to her summary judgment response was intended to establish that Kenneth owed
Gwen a fiduciary duty and breached that duty by accepting joint tenancy of the bank accounts.

        In any event, although Ronda’s evidence was admissible, we need not address whether it raised
an issue of material fact because Kenneth’s motion for traditional summary judgment did not, by itself,
establish his entitlement to judgment as a matter of law. See State v. $90,235.00 in U.S. Currency, 390
S.W.3d 289, 292 (Tex. 2013); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.
2000). Accordingly, the burden to produce evidence never shifted to Ronda. See $90,235.00, 390
S.W.3d at 292; see also TEX. R. CIV. P. 166a(c).


                                                  15
fiduciary duty to Punts with regard to the funds in the Credit Union accounts, as they

were not included in Kelly’s estate.” Id. at 892. The court further held that, although

there was evidence that Kelly told Punts of his intent that Punts have half of the funds

under the residual clause of his will, “extrinsic evidence may not be offered to prove

intent” of a decedent where the terms of a survivorship account are “complete and

unambiguous.” Id. at 893 (citing TEX. PROB. CODE ANN. § 439(b)).

      The fact pattern considered in Punts is similar to the one at issue here; however,

the case is distinguishable because it involved a claim of breach of fiduciary duty to the

beneficiary rather than to the decedent. The Punts court, in considering whether Wilson

owed a fiduciary duty, focused exclusively on the fiduciary duty that arises as a matter

of law between an executor and the beneficiaries of an estate. See id. at 891 (citing

Huie v. DeShazo, 922 S.W.2d 920, 923 (Tex. 1996)). Here, on the other hand, Ronda’s

active claim is a derivative claim, brought on behalf of her deceased mother, that

Kenneth breached his fiduciary duty to Gwen. And, crucially, unlike a fiduciary duty

owed by an executor to a beneficiary, a fiduciary duty based on a “confidential

relationship”—such as the one Ronda alleges that Kenneth owed to Gwen—burdens

the fiduciary to demonstrate the fairness of any transaction with the principal.     See

Moore, 595 S.W.2d at 508–09. Accordingly, Punts does not compel the granting of

Kenneth’s summary judgment motion.

      Finally, Kenneth contends in his appellee’s brief that Ronda lacks standing to

assert a breach of fiduciary duty cause of action on behalf of Gwen. Although Kenneth

did not make this argument in his summary judgment motion, lack of standing may be

raised for the first time on appeal because it implicates the trial court’s subject matter



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jurisdiction. See, e.g., Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444

(Tex. 1993).    Kenneth cites Frazier v. Wynn, 472 S.W.2d 750 (Tex. 1971), for the

proposition that “[t]he personal representative of the decedent’s estate is the only

person entitled to sue to recover estate property.” However, the Texas Supreme Court

in Frazier acknowledged that “[t]here are exceptions” to that general rule. Id. at 752.

One such exception is recognized in “cases where, there being an administration, it

appears that the administrator will not or cannot act, or that his interest is antagonistic to

that of the heirs desiring to sue.” Chandler v. Welborn, 156 Tex. 312, 318, 294 S.W.2d

801, 806 (1956); In re Estate of Preston, 346 S.W.3d 137, 163 (Tex. App.—Fort Worth

2011, no pet.); In re Guardianship of Archer, 203 S.W.3d 16, 22 (Tex. App.—San

Antonio 2006, pet. denied). Kenneth’s interest is indisputably antagonistic to Ronda’s

with respect to her claim that he breached a fiduciary duty owed to Gwen by accepting

joint tenancy on Gwen’s bank accounts. Accordingly, Ronda has standing to assert the

claim on behalf of her deceased mother.

                                      III. CONCLUSION

       We conclude that the trial court erred by granting Kenneth’s motion for partial

summary judgment.        We therefore reverse the judgment and remand for further

proceedings consistent with this opinion.


                                                  DORI CONTRERAS GARZA,
                                                  Justice


Delivered and filed the
19th day of December, 2013.




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