Shapiro v. Bishop

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Debra L. Shapiro,
Plaintiff and Appellant,

v.

Jone R. Bishop,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000491-CA

F I L E D
March 29, 2001 2001 UT App 100 -----

Third District, Salt Lake Department
The Honorable Leslie A. Lewis

Attorneys:
George E. Harris, Jr., and Jennifer Ward, Salt Lake City, for Appellant
Kent B. Alderman, Elizabeth S. Conley, and Suzanne L. Larsen, Salt Lake City, for Appellee

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Before Judges Greenwood, Bench, and Orme.

GREENWOOD, Presiding Judge:

The trial court and the parties rely on section 75-6-104 of the Utah Code, which provides that "[s]ums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intention at the time the account is created." Utah Code Ann. § 75-6-104(1) (1993) (emphasis added). This section is inapplicable to the present case because Robert B. Bishop (Bishop), defendant's husband and plaintiff's father, was alive when defendant withdrew the CD funds and no sum remained on deposit at his death. Even so, the underlying standard, clear and convincing evidence, is still required to reform a joint account to an individual account. See, e.g., Tangren v. Ingalls, 12 Utah 2d 388, 367 P.2d 179, 184 (1961); Braegger v. Loveland, 12 Utah 2d 384, 367 P.2d 177, 178 (1961). Thus, while section 75-6-104 is not pertinent, the cited standard applies to the present case.

Plaintiff argues that the trial court erred in granting summary judgment in favor of defendant, thereby denying plaintiff's request to reform the joint CD account to one held in Bishop's name only. A joint account is presumed valid "unless it is successfully attacked for fraud, mistake, incapacity, or other infirmity, or unless it is shown by clear and convincing evidence that the parties intended otherwise." Tangren, 367 P.2d at 184 (emphasis added). In this case, plaintiff does not argue fraud, mistake, incapacity, or other infirmity; thus, "the critical question . . . is whether the appellant could meet the requirement of presenting clear and convincing evidence" that Bishop did not intend to create a joint account with defendant. Id. Plaintiff's essential arguments upon which she relies for this purpose are: that Bishop previously divided his assets to take care of both plaintiff and defendant; that Bishop was most likely unaware that by adding defendant to the CD plaintiff's future interest would be jeopardized; that Bishop and plaintiff had a close relationship; that Bishop added defendant as an owner of the CD as a convenience and not because he intended to reorganize his estate plan; that the CD was funded entirely by Bishop; that defendant never made any contribution thereto; and that Bishop allegedly told his cousin that he wanted plaintiff to be his principal heir.

Plaintiff argues that First Sec. Bank of Utah v. Demiris, 10 Utah 2d 405, 354 P.2d 97 (1960), controls the present case. In Demiris, defendant's husband transferred his private bank account into joint tenancy with defendant shortly before he entered the hospital. See id. at 98. Then, just before her husband's death, defendant withdrew all the funds from the account and deposited them into her own separate account. See id. After defendant's husband died, his brothers and sister filed suit claiming that he was not mentally competent; that his wife unduly influenced him; and that the purported transfer of his individual account to a joint account with defendant did not give her ownership of that account. See id. The trial court refused to find that the decedent was incompetent or acting under undue influence, but held that defendant was entitled to the joint account funds as the survivor. See id. In a split decision, the Utah Supreme Court upheld the trial court's finding that the decedent was not incompetent or acting under undue influence, but reversed the trial court's decision that defendant was an owner of the funds. See id. at 99-100. In so doing, the court stated that: Looking at the matter through the eyes of equity it seems indisputable that defendant's act of grabbing the money at the earliest opportunity was for the purpose of getting it for herself and excluding the cotenant therefrom; and that this was a wrongful act which should not be rewarded. Under such circumstances the court should look beyond the superficiality of the form in which the money was held and determine the true facts as to its ownership. Id. at 99. The court noted that the account was established for the decedent's "convenience in the face of the exigency that he had to go to the hospital," and that a history of marital discord would negate "any intent on [decedent's] part to make a gift or a transfer of ownership of this fund to his wife." Id. at 100. Further, the court noted defendant's own testimony that decedent put the account in her name because he was going to the hospital, and that defendant "grasp[ed] the fund practically as soon as she could get her hands on it argue persuasively that he had no intent to endow her with the money." Id. Accordingly, the court held "that the ownership of the [monies] remained in [decedent] and belong[] to his estate." Id.

In the present case, plaintiff has not proffered any persuasive reason as to why the CD account was changed to a joint account. Also, unlike Demiris, there is no evidence of marital discord or attitudes that would negate Bishop's intent to establish a joint account. Plaintiff does not dispute that Bishop and defendant had a loving relationship and that defendant cared for Bishop when he was ill. Accordingly, Demiris is distinguishable from the present case. Plaintiff's evidence and arguments are largely speculative and do not constitute clear and convincing evidence to overcome the presumption that a joint account was intended; thus, the trial court did not err in granting summary judgment on that basis.

Plaintiff also claims that defendant unlawfully converted the CD funds. Utah recognizes conversion as a viable cause of action. See Allred v. Hinkley, 8 Utah 2d 73, 328 P.2d 726, 728 (1958) ("A conversion is an act of wilful interference with a chattel, done without a lawful justification by which the person entitled thereto is deprived of its use and possession."). However, because we have held that defendant had a legal right to the CD proceeds as a joint owner, plaintiff's claim for conversion necessarily fails.

Accordingly, we affirm.
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

I CONCUR:
 
 

______________________________
Russell W. Bench, Judge -----

I CONCUR IN THE RESULT:
 
 

______________________________
Gregory K. Orme, Judge