LINDA C. BRITTON, Appellant v. SAUNDRA SUE WILSON, Independent Administrator of the Estate of Clifton Johnson, Deceased, Appellee

REVERSE and REMAND in Part, AFFIRM in Part and Opinion Filed December 20, 1996
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-95-01437-CV
............................
LINDA C. BRITTON, Appellant
V.
SAUNDRA SUE WILSON,
Independent Administrator of the
Estate of Clifton Johnson, Deceased, Appellee
..............................................................
On Appeal from the Probate Court No. 2
Dallas County, Texas
Cause No. 91-4526-P2(A)
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O P I N I O N
Before Justices Lagarde, Kinkeade, and Maloney
Opinion By Justice Maloney
        Saundra Sue Wilson, as co-independent administrator of the estate of Clifton Johnson, sued Linda Britton, seeking to set aside two purported gifts to Britton and to recover damages arising out of alleged conversions and forgeries by Britton. The trial court granted Wilson's motion for summary judgment. In two points of error, Britton contends the trial court erred in granting the summary judgment. We affirm the trial court's judgment on appellant's first point of error. We reverse the trial court's judgment on appellant's second point of error and remand that portion of the cause to the trial court.
BACKGROUND
        Britton was the deceased's natural daughter. Wilson, together with her two siblings, were the deceased's step-children. The deceased's will named all four children as joint beneficiaries. Additionally, the deceased's will named Britton and Wilson as co-independent administrators.
        The deceased gave Britton a check for $9,900 drawn on a NCNB Texas National Bank account, which the deceased held jointly with Britton. The check was dated November 28, 1991. On this same date, the deceased also signed various automobile transfer documents for his 1986 Chrysler Fifth Avenue automobile to Britton.
        The deceased suffered a massive stroke on December 1, 1991, and remained in the hospital until his death on December 3, 1991. Three days after the deceased died, Britton deposited the $9,900 check into a personal bank account and submitted the automobile title transfer documents to the Dallas County Tax Office. On December 9, 1991, NCNB paid the $9,900 check from the NCNB joint account funds.
        Wilson moved for partial summary judgment, arguing that the purported gifts were incomplete and ineffective. The trial court granted Wilson's partial summary judgment motion. Wilson subsequently non-suited her remaining causes of action against Britton, and the partial summary judgment became final.
SUMMARY JUDGMENT
        In Britton's two points of error, she contends that the trial court erred in granting summary judgment. In her first point of error, Britton argues her depositing the $9,900 check after the deceased's death did not render the gift of $9,900 incomplete and ineffective. In her second point of error, she argues her registering the automobile title transfer documents after the deceased's death did not render the gift of the automobile incomplete and ineffective.
1. Standard of Review
        The standard of review in summary judgment is well established. Tex. R. Civ. P. 166a(c); see McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 (Tex. 1990); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985); Gaines v. Hamman, 163 Tex. 618, 626, 358 S.W.2d 557, 563 (1962); Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952); Ross v. Texas One Partnership, 796 S.W.2d 206, 209 (Tex. App.--Dallas 1990), writ denied per curiam, 806 S.W.2d 222 (Tex. 1991).
        The movant for summary judgment has the burden of proving all essential elements of her causes of action or defenses as a matter of law. Victoria Lloyds, 797 S.W.2d at 27. When the movant establishes her right to summary judgment, the burden shifts to the non-movant, who must present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex. 1979).
 
2. THE CHECK
a. Applicable Law
        A gift inter vivos is a gift between the living which must operate in the donor's lifetime. Bridewell v. Clay, 185 S.W.2d 170, 172 (Tex. Civ. App.--Dallas 1944, writ ref'd). Further, a check drawn by a donor is only a promise of a gift. Id. Unless the payee presents the check to the bank and the bank either accepts or pays on the check before the donor's death, it is an incomplete and ineffective gift. Id.; see also Act of June 14, 1967, 60th Leg., R.S., ch. 785, § 1, 1967 Tex. Gen. Laws 2343, 2425, amended by Act of June 16, 1995, 74th Leg., R.S., ch. 921, § 1, 1995 Tex. Gen. Laws 4582, 4598 (current version at Tex. Bus. & Com. Code Ann. § 3.408 (Vernon Supp. 1997)) (a check does not operate as an assignment of funds in the hands of the drawee until the drawee accepts the check). The donor's death revokes ipso facto any attempted gift by check. Bridewell, 185 S.W.2d at 171-72.
b. Application of Law to Facts
        The deceased's $9,900 check to Britton was dated November 28, 1991. Britton did not deposit the check until December 6, 1991, and the check was not presented to NCNB for payment until December 9, 1991. Because the check was neither presented, accepted, nor paid until six days after the deceased's death, it was an incomplete and ineffective gift of $9,900 to Britton.
        We overrule appellant's first point of error.
 
3. The Automobile
a. Applicable Law
        To establish a gift of tangible personal property, a party must show: (1) the donor's intent to make a gift; (2) delivery of the property; and (3) acceptance of the property. See In re Estate of Hamill, 866 S.W.2d 339, 344 (Tex. App.--Amarillo 1993, no writ); Thompson v. Lawson, 793 S.W.2d 94, 96 (Tex. App.--Eastland 1990, writ denied). The donor must deliver the property to the donee with the intent to vest immediate and unconditional ownership of the property in the donee. Oadra v. Stegall, 871 S.W.2d 882, 890 (Tex. App.--Houston [14th Dist.] 1994, no writ) (citing Wells v. Sansing, 151 Tex. 36, 245 S.W.2d 964, 965 (1952)). A gift of an automobile is effective as between the donor and donee as long as the automobile is delivered to the donee. FN:1 The failure to present title to the automobile to the county tax office for registration before the donor's death does not revoke the gift. Truck Ins. Exchange v. Schuenemann, 391 S.W.2d 130, 131-33 (Tex. Civ. App.--San Antonio 1965, writ ref'd n.r.e.); Bishop v. Bishop, 359 S.W.2d 869, 871-72 (Tex. 1962); Johnson v. Safeco Ins. Co., 464 S.W.2d 164, 168 (Tex. App.--El Paso 1971, no writ); Wise v. Cain, 212 S.W.2d 880, 882 (Tex. Civ. App.--Austin 1948, writ ref'd n.r.e.).
b. Application of Law to Facts
        Britton's response and summary judgment evidence showed that the deceased signed and delivered to Britton a Title Assignment form, an Application for Texas Certificate of Title Seller, Donor, or Trader's Affidavit, and an Odometer Disclosure Statement on November 28, 1991. These documents indicate the deceased's intent to transfer his 1986 Chrysler automobile to Britton.
        The uncontested evidence shows that Britton did not present the transfer documents to the county tax office for registration before the deceased's death. However, as long as the automobile is delivered to the donee, failure to present the title to the county tax office for registration before the donor's death will not void the gift. Wilson's summary judgment evidence showed that the deceased never delivered the automobile to Britton. Britton's affidavit showed that the deceased actually delivered the automobile to her before his death.
        Because Britton's affidavit created a fact issue on whether the deceased actually delivered the automobile to Britton, the trial court erred in granting summary judgment on setting aside the purported gift of the automobile. We sustain appellant's second point of error.         We reverse that portion of the trial court's summary judgment purporting to set aside the gift of the automobile and remand this case for further proceedings consistent with this opinion.
 
 
 
 
 
                                                          
                                                          FRANCES MALONEY
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
 
FN:1 Appellee relies solely on Hoskins v. Carpenter, 201 S.W.2d 606 (Tex. Civ. App.--El Paso 1947, writ ref'd n.r.e.), for the proposition that a gift of an automobile remains unexecuted at the donor's death if the parties have not satisfied Certificate of Title Act requirements. Later cases, however, have held otherwise and have distinguished Hoskins. In Hoskins, the jury found that the alleged donor did not intend to vest title in the automobile to the alleged transferee. Because there was no donative intent, the issue of compliance with statutory title requisites was unnecessary to disposition of the case. See Truck Ins. Exchange v. Schuenemann, 391 S.W.2d 130, 133 (Tex. Civ. App.--San Antonio 1965, writ ref'd n.r.e.); Wise v. Cain, 212 S.W.2d 880, 882 (Tex. Civ. App.--Austin 1948, writ ref'd n.r.e.).
File Date[12-20-96]
File Name[951437F]