Diana Jo Fletcher and Gary Whitaker, Independent Executors of the Estate of Torchy Bob Whitaker v. Geneva Mae Whitaker

Citation: Not availableDocket: 02-17-00138-CV

Court: Court of Appeals of Texas; October 11, 2018; Texas; State Appellate Court

Original Court Document: View Document

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Diana Jo Fletcher and Gary Whitaker, independent executors of Torchy Bob Whitaker's estate, are in a legal dispute with Geneva Mae Whitaker, Bob's sister-in-law. Following Bob's death, Diana and Gary sued Geneva, alleging she forged Bob's signature on a deed and converted his property. Geneva countered, claiming Gary converted $25,000 from a joint bank account while Bob was alive. After a bench trial, the court ruled in favor of Geneva on her conversion claim, ordering Diana and Gary to pay her jointly and severally. Conversely, Diana and Gary successfully proved the forgery claim against Geneva, who did not appeal this ruling. They now argue that the evidence did not support the trial court's judgment regarding Geneva's claim.

The background reveals that Geneva was married to Toby Whitaker, Bob's brother, and had assisted in Bob's care following his brain injury. In 2009, Bob executed a gift deed transferring his home to Toby and Geneva while retaining a life estate. In 2014, they opened a joint bank account where Geneva testified that all the funds originated from Bob. After Toby's death in 2015, Gary, as Bob's attorney-in-fact, withdrew $25,000 from this account on the same day Bob granted him power of attorney. This withdrawal significantly depleted the account, leaving only $163. Bob's will named Diana and Gary as co-independent executors, prompting their lawsuit against Geneva to void the gift deed and recover funds allegedly misappropriated for Toby's funeral expenses.

Geneva countersued for conversion, requesting the return of at least half of the $25,000 withdrawn by Gary from a joint account, and reimbursement of over $3,000 she claimed to have invested in a property, contingent upon the trial court voiding a gift deed. After a one-day bench trial, the court found that Bob had not signed the gift deed, declared it void, and ruled that Diana and Gary owned Bob's home. The court also concluded that Geneva's withdrawal for her husband's funeral was justified, as it came from a jointly owned account. Geneva was awarded $29,121.44 in damages, which included $4,121.44 for expenses related to the house and the $25,000 withdrawn by Gary, who was found to have violated his fiduciary duties. On appeal, Diana and Gary contested the $25,000 award. The legal standard for review in this case indicates that implied findings of fact support the trial court's judgment unless challenged by evidentiary-sufficiency issues. The court must affirm the judgment if it is supported by any legal theory within the record. Conversion, as defined, involves wrongful control over another’s property, and Geneva needed to prove her ownership or entitlement, unauthorized control by Gary and Diana, her demand for return of property, and their refusal to return it.

Money can be converted only when identifiable as a specific chattel, not as a general indebtedness. For money to qualify as a specific chattel, it must be (1) delivered for safekeeping, (2) intended to be kept segregated, (3) maintained in its original form or as part of an intact fund, and (4) not subject to a title claim by its keeper. In the case referenced, the court found that a son who withdrew funds from his mother's investment accounts without consent committed conversion.

In the appeal, Diana and Gary argued that the evidence was insufficient to show they unlawfully exercised control over Geneva's property. While they acknowledged Gary withdrew $25,000 from a joint account, they contended there was no conversion because Geneva did not own the funds (as Bob was the sole source) and because the withdrawal was authorized by a power of attorney. To succeed in her conversion claim, Geneva needed to prove ownership, legal possession, or entitlement to the funds.

The court noted that Diana and Gary did not dispute the trial court's finding that Geneva had a right to possess the funds in the joint account. Testimony indicated that Geneva was a joint owner with full access rights, as evidenced by the account's terms. The definition of a joint account allows for multiple parties to have a present right to payment.

Geneva also needed to demonstrate that Gary and Diana unlawfully controlled the funds. They claimed the withdrawal was lawful due to the power of attorney, which was uncontested by Geneva. However, Gary acknowledged he knew the account was a joint account with survivorship rights, that Geneva had full access, and that she would ultimately own the funds upon Bob's death. He admitted withdrawing the money to prevent Geneva from accessing it and deposited it into his own account, which Bob was not associated with. Furthermore, Gary confirmed that he filed probate documents stating Bob had no cash because he withdrew the funds, and there was no evidence that the funds were used for Bob's care prior to his death.

Gary acknowledged his fiduciary duty to Bob, established through a power of attorney, and admitted to breaching this duty by withdrawing funds for personal use. The trial court inferred that Gary's actions were not in Bob’s interests but rather an improper exercise of control over the funds, disregarding Geneva's rights. The court found sufficient evidence to support Geneva’s conversion claim, leading to the overruling of Diana and Gary's appeal. The trial court’s judgment was affirmed.