COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS WES L EY KENN EMER, I NDEPENDEN T EXECUTOR OF THE ESTATE OF L OREN SMI TH B ARTOO, DECEASED, Appellant,

v. FORT WORTH COMMUNI TY CREDI T UNI ON, Appellee

. § § § § § § No. 08-10-00127- CV

Appea l from the County Court at L aw No. 2 of Parke r County , Texas (TC# CI V 10-0315)

O P I N I O N Wesley Kenne mer, as I ndepende nt E x ecutor of the Estate of L oren Smit h, appea ls the trial
court’s summary judgme nt in favor of For t Worth Communi ty Credit Union (F WC CU). I n a single issue, he contends that the trial cour t erre d by finding an ag ree ment convey ing sur vivorship rig hts

on Billie Ba

rtoo, L oren’ s wife, to an acc ount containing over $97,000. For the rea sons that follow,

we a ffirm.
BACK GR OUND
Ba sed on the fac ts of this case , it appea rs to be the prac tice of FWCCU to a ssign a member identification number to its customers. Fr om that member id entifica tion number, a customer’ s

acc ount is not labeled with a separ ate id en t ification or acc ount number but mere ly ref ere nced as “Ac count #1” or “Ac count #2” based on the number of acc ounts a customer may have. The written and si g ned “Application fo r M embership,” which the parties refe r t o as t he Account M ember ship Card or Signatur e Card, ref ers to the member identification number, not to eac h individual acc ount identified by the membership number, and there fore , sets the terms and conditions for all acc ounts falling under tha t membership number.I n 1952, L oren Ba rtoo opened a share (saving s) acc ount at FWCCU. He wa s assi g ned 1 Membership Number 1064-0, and his acc ount was labeled Accoun t #1. After marry ing, his wife, Billie B artoo, wa s added as a joi nt owner under the same membe rship number sometime betwe en Dec ember 1985 and Marc h 1986. Acc ording to the “Applica tion for Membership” car d, the parties
ag ree d that all funds on deposit “shall be owned by [t hem] jointly , with rig hts of survivorship.” The Application also stated that the parties ag ree d “to the terms and conditions of any acc ount that [t hey ] have in the cre dit union now or in the future and ag ree that the cre dit union may chang e those terms and conditions from ti me t o time.” The Applica tion ref ere nced Membership Number 1064-0 and was sig ned by

both L oren a

nd Billie.
On J une 3, 1986, Acc ount #4, a cash- manag ement or money -m ar k et acc ount, was opened under the same membership number. Be cause both ac co u n t s were opened prior to J une 1998,
FWCCU did not require s eparate signa ture car ds for eac h acc ount falling under a membership number; rathe r, only one signa ture car d was require d that rela ted to the membership number, which would then follow all acc ounts opened under that membership number. Fur ther, in J uly 2 0 03, FWCCU revised its Acc ount I nformation Booklet, which contained a se ction entitled “Te rms and Conditi ons of Your Acc ount” and stated that if multipl e parties are included on an acc ount, they own the acc ount in proportion and that on the death of a party , that dece ased party ’s owner ship passes to the surviving party

. Ac co rd i ng to the membership statement for Membership Number 1064-0, which was addre ssed to both L oren and Billie, it a ppear s that $97,029.93 was tra nsfer red f rom Acc ount #4 to
Acc ount #1 on November 20, 200 3 , and that five day s later, those funds wer e transfe rre d back to

A t t h e t i m e t h e a c c o u n t w a s o p e n e d , t h e C r e d i t U n i o n w a s k n o w n a s F o r t W o r t h F e d e r a l E m p l o y e e s 1 F e d e r a l C r e d i t U n i o n .Acc ount #4. At the time of the transfe r, Acc ount #1 only ear ned 0.50 perc ent in inter est, wher eas 2
Acc ount #4 ear

ned 1.51 perc ent. Prior to the transfe r, on November 2, 2003, L oren died. Rely ing

on the Application for Membership car d, which confe rre d rig hts of survivorship, FWCCU believed all funds perta ining to Membership Number 106 4 -0 belong ed to and wer e owned by Billie, as survivor. Thus, F WC CU paid those funds to B illie. Almost one y ear later, Kenne mer, as I ndepende nt Ex ecutor of L oren’ s estate, sued FWCCU, complaining of t h e C re d i t Union’s deter mination to pay those funds rema ining in Acc ount #4 to Billie. Acc ording to Kenne mer, those funds wer e community funds without any enfor cea ble written survivorship ag ree ment, and there fore , Kenne mer soug ht to rec over one-ha lf of those funds from the Credit Union. Kenne mer also sued Billie and Billie’s heirs. FWCCU denied the claims and moved 3
for summary judgme nt. The trial court subsequently g rante d summary judgme nt in fav o r o f F WC CU and seve red K enneme r’s re maining c laims.
DISCUSSIO N
I n his sole issue prese nted for our revie w, Kennemer asser ts that the trial court err ed in
g ranting s u m m ar y judgme nt in favor of FWCCU. Acc ording to Kenne mer, the survivorship
ag ree ment was e x ecute d prior to the cr eation of A ccount #4 a nd there fore only

rela ted to Acc ount #1, not to any future acc ounts that wer e opened by the parties. Rather, Kenne mer arg ues that a new written ag ree ment was require d to set the terms and conditions of Acc ount #4, including what survivorship the acc ount may have, if any . Thus, Kenne mer conclude s that the trial court err ed by finding that the funds on deposit in Ac co u n t # 4 wer e subject to the ag ree ment convey ing

A l t h o u g h n o t f

o u n d i n t h e c l e r k ’ s r e c o r d , t h e p a r t i e s c o n t e n d e d d u r i n g o r a l a r g u m e n t t h a t t h e C r e d i t 2 U n i o n , o n i t s o w n m o t i o n , t r a n s f e r r e d t h o s e f

u n d s t o A c c o u n t # 1 a n d t h e n l a t e r r e v e r s e d t h e t r a n s f e r .
B i l l i e d i e d a f

t e r a p p e a r i n g i n t h e c a s e . 3survivorship rig hts on Billie. Standard of Review

We revie w summary judgme nts d e n o v o . V a le nce Operating Co. v. Dorsett , 164 S.W .3d 656,
661 (Tex. 2005); In re Estate of Rogers , 322 S.W .3d 361, 363 (Tex. App. – El Paso 2010, no pet.);
First Union Nat. Bank v. Richmon t Ca p i t a l Partners I, L.P. , 168 S.W .3d 917, 923 (Tex. App.

– Dallas 2005, no pet.). We take the nonmovant’s evidenc e as true, indulge ever y rea sonable infere nce in favor of the nonmovant, and resolve all doubts in favor the nonmovant. Valence Operating Co. , 164 S.W .3d at 661; Rogers , 322 S.W .3d at 363; First Union Nat. Bank , 168 S.W .3d at 923. To be entitled to a s ummary judgme nt, the moving pa rty must establish that no material fa ct issue exist s and that he is entitled to judgme nt as a matter of law. T E X
. R. C I V
. P. 166a(c ); Rogers , 322 S.W .3d at 363; First Union Nat . Bank , 168 S.W .3d at 923.

Applicable Law Section 439(a) of the Texas Probate Code g overns the cre ation of a rig ht of survivorship in

a joint acc ount, providing that “an ag ree ment is sufficie nt to confe r an absolute rig ht of survivorship

on parties to a joint acc ount

. . . if the ag ree ment states in substantially the following form: ‘On the d eath of one party to a joint acc ount, all sums in the acc ount on the date of the d ea t h v es t i n an d belong to the surviving pa rty as hi s or her separ ate property and estate.’” T E X
. P R O B
. C O D E A N N
. § 439(a ) (W est 2003). I n 1993, the Texas L eg islature enac ted Section 439A, entitled “Unifor m Single- Party or Multipl e-Par ty Acc ount For

m,” as a supp le me n t to Se c ti o n 4 3 9 (a) ’s acc eptable forms of survivorship lang uag e. See Acts 1993, 73rd L eg ., R.S., ch. 795, § 2, 1993 Tex. Gen. L aws 3154, 3154, eff

. Aug

. 30, 1993 (codifie d at T E X
. P R O B
. C O D E AN N
. § 439A (West Supp. 2010); In re Estate

o f De l l i nger , 224 S.W .3d 434, 438 (Tex. App. – Dallas 2007, no pet.). Although Section 4 3 9 A provides form lang uag e to establish particula r ty pes of acc ounts, it also states that a financ ialinstit ution may vary the format of the form and “make disclosures in the acc ount ag ree ment or in any

other form which adequa

tely discloses the information provided in this section.” Id

. § 439A(b), (c)

. I n essenc e, the require ments for the cre ation of a rig ht of survivorship to a joint acc ount are that there be (1) a written ag ree ment, (2) signe d by the dece dent, (3) which makes his interest “survive” to the other pa rty

. Dellinger , 224 S.W .3d at 438.
An acc ount signa ture car d, being a ty pe of contra ct, must be “re ad, considere d, and construed in its entirety i n k ee p i n g with the g ener al principles of contra ct interpre tation.” Allen v. W achtendorf

, 962 S.W .2d 279, 282 (Tex. App. – Corpus Christi 1998, pet. denied)

. Although it is not pr oper to r ely on a single clause or para g raph to a scer tain the intent of the parties and meaning of the ag ree ment, “if it appea rs that only one para g raph deals with the matter, the intent of the parties
may be deter

mined from that para g raph alone.” Id

. at 282; see also Dellinger , 224 S.W .3d at 438. Application
Kenne mer arg ues that the written ag ree ment, the Application for Membership car d, confe rs

a rig ht of survivorship as to Acc ount # 1 o n l y , n o t to Acc ount #4. Acc ording to Kenne mer, only
Acc ount #1 was in exis tence when Billie was added as a joint owner . Thus, he conclude s t h at a
separ ate written ag ree ment containing a r i gh t o f survivorship was required when Account #4 was opened y ear s later.
Howeve r, Kennem er fails to acknow ledg e that the Application for Membership car d confe rre d rig hts of survivorship perta ining to M e mb e r s h ip N u mb e r 1064-0, not to a specific acc ount.
I ndeed, the Application for Membership card does not ref er to “Ac count #1” but rathe r st ates that the parties ag ree that the terms and conditions are controlling as to “ any acc ount that [t hey ] have in the cre dit union now or in the future.” (Emphasis added.) As the rig ht-of-sur vivorship lang uag e is
not contested save as to which acc ount it applied to, we find that rig ht of survivorship, by the plainterms of the Appli cation for Membership card, applied to all acc ounts creat ed under Membership

Number 1064- 0.
Moreove r, we find other e vidence in the rec ord to support the par ties’ i ntention to cre ate a j o i n t rig ht of survivorship for all acc ounts bear ing Membership Number 1064-0. I ndeed, the Applicat i o n for Membership car d is signe d by both L oren and Billie, and acknow ledg es that the parties would be bound by future terms ad o p t ed b y t he Credit Union. FWCCU’s Acc ount
I nformation Bookle t was chang ed in J uly 2003 to provide that if multipl e parties are included on an

acc ount, they

own the ac count in proportion and that on the de ath of a party , that dece ased pa

rty ’s

owner ship pa sses to the surviving party

. Such lang uag e trac ks that found in Sec tion 439A( b), and provides further support for finding of a rig ht of survivors h i p i n Bi l l i e for all acc ounts. See Dellinger , 224 S.W .3d at 440 (holding lang uag e in the “A cc o u n t Ag ree ment, Disclosures and Privacy Policy ” wa s sufficient to conf er a rig ht of survivorship).
Fur ther, both Acc ount #1 and Account #4 ar e re fer ence d by Membership Number 1064-0, and the Credit Union’s statement, which lists the s p ec i fi cs of both acc ounts, is addre ssed to both
L oren and Billie. Such are other fac tors which support the trial court’s finding that both L oren and Billie owne d Acc ount #4 jointl y with rig hts of survivorship.
I n short, based on our entire revie w of the record and the evidence p re s ented, we find that the survivorship lang uag e fo u n d in the Application for Membership car d applied not to a cer tain, specific acc ount, but to all acc ounts falling under Membership Number 1064-0. Kenne mer cites no
statutes or case s that provide that a written ag ree ment containing survivorship lang uag e is require d for eac h acc ount at a financ ial instit ution and cannot simply be applied, as here , to eac h membershipnumber that would apply to all acc ounts falling under that number. Acc ording ly , we hold that the 4
trial court proper ly g rante d summary judgme nt in favor of FWCCU and overr ule Kenne mer’s sole issue.
CONCLUSION Having overr

uled Kenne mer’s sole issue, w e af firm the trial c ourt’s judg ment.

GUADA L UPE RI VERA, J ustice Marc h 9, 2011
Be fore Chew, C.J ., McClure, a nd Rivera, JJ

.

T h a t i s n o t t o s a y t h a t w e a p p r o v e o f F W C C U ’ s p r a c t i c e s a s t h e y , a s d e m o n s t r a t e d b y t h i s c a s e , c a u s e 4
c o n f u s i o n a n d m a y l e a d t o u n w a n t e d l i t i g a t i o n . R a t h e r , w e b e l i e v e t h e b e t t e r p r a c t i c e w o u l d b e t o h a v e a s e p a r a t e a c c o u n t n u m b e r a n d w r i t t e n a g r e e m e n t a s t o s u r v i v o r s h i p r i g h t s f o r e a c h a c c o u n t

.