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Click here for the full text of this decision FACTS:In 1985, Federico Beyer and his daughter, Alicia Beyer, both Mexican citizens, opened an investment account as joint tenants with right of survivorship (JTWROS) at an A.G. Edwards office in El Paso. Although Alicia had five siblings, all of them were estranged from her and her father. When Alicia became a resident alien in 1997, she removed herself from the account, because she believed she would be required to pay taxes on the investment income. After Frederico regained the ability to speak following a stroke he suffered in October 2000, he and Alicia contacted A.G. Edwards broker James Niemeier to return Alicia to the account. Niemeier recommended they transfer the old account into a new account as joint tenants with right of survivorship. The purpose of the change was to allow Alicia to access the funds to pay Federico’s medical expenses. Niemeier prepared three documents for Alicia and Federico to sign: 1. a letter authorizing the transfer of funds to a new account; 2. an authorization allowing both Alicia and Federico to write checks on the account; and 3. the joint account agreement containing language setting up the JTWROS account. Alicia testified that she and her father signed all three documents on Dec. 8, 2000, witnessed by his housekeeper, who does not read English. Alicia testified that later that day she drove to A.G. Edwards’ office with her father’s housekeeper, who delivered the documents in an envelope to the reception desk at A.G. Edwards, because Niemeier was not available. Alicia did not copy the documents. A week later, Alicia went to the A.G. Edwards office and discovered that the account had not been approved. At first, Niemeier claimed not to have received the documents but then verified with the receptionists that the envelope had been left at the front desk and that at least one of the three documents was being entered into their document management system. Niemeier assured Alicia that the account would be ready in a few days. On Dec. 27, 2000, A.G. Edwards’ St. Louis office wired Niemeier that the joint account agreement was missing. Niemeier never read the wire. Two days later, the St. Louis office issued a delinquent document report for the missing agreement, but before it could be delivered to El Paso, Federico lapsed into a coma. No one from A.G. Edwards contacted Alicia about the missing joint account agreement. The only contact was a Dec. 27, 2000, letter sent to Federico stating that the account was being processed. On Jan. 9, 2001, Federico died intestate. When Alicia tried to access the account, A.G. Edwards was unable to locate the joint account agreement and froze the account. Alicia sued A.G. Edwards and Niemeier in state court for conversion, negligence, fraud, negligent misrepresentation, breach of contract and breach of a fiduciary duty. She sought over $1 million in damages, including the portion of the account distributed to her five siblings. On Jan. 23, 2003, A.G. Edwards brought an interpleader action in federal district court, arguing that Alicia’s suit created competing claims to the funds. On Sept. 18, 2003, the federal district court dismissed the interpleader, concluding that there were no competing claims because Alicia admitted that, without the executed joint account agreement, under Texas law the account was not a JTWROS account. The federal district court ordered the interpleaded funds delivered to the estate administrator and distributed in accordance with the probate court’s administration of the estate. The Sept. 18, 2003, order also awarded Alicia attorneys’ fees against A.G. Edwards for improperly filing the interpleader action. In the meantime, Alicia tried her case in state district court. A jury returned a verdict for Alicia on all six claims, found that A.G. Edwards agreed with Alicia and Federico to open a joint account with right of survivorship, and awarded attorneys’ fees for breach of contract. Alicia elected to recover on the breach of contract claim, and the trial court entered judgment for $791,200, an amount equal to five-sixths of the investment account balance multiplied by the percentage of fault the jury assigned to A.G. Edwards; $225,000 in attorneys’ fees for trial; $48,000 in appellate attorneys’ fees, if necessary; and post-judgment interest on the $225,000 in attorneys’ fees for trial preparation. The trial court awarded attorneys’ fees for all the claims Alicia pursued in state court and her defense of the interpleader suit brought by A.G. Edwards in federal court. Although the federal district court initially awarded Alicia reasonable attorneys’ fees, the court later withdrew its award of fees to Alicia, because she had already received attorneys’ fees from the state district court. A.G. Edwards appealed, and the 8th Court of Appeals affirmed, concluding that Texas Probate Code �439(a) did not apply to bar Alicia from seeking ownership of joint account funds against the estate of the decedent. The 8th Court also held that Alicia was not required to segregate fees between her contract and tort claims, because all arose from the same transaction and were inextricably intertwined. The 8th Court finally concluded that the trial court did not err in its award of fees even though some of the fees were for defending the federal interpleader action. A.G. Edwards then petitioned the Texas Supreme Court for review, appealing the applicability of �439(a) and the segregation of attorneys’ fees. HOLDING:Affirmed in part, reversed and remanded in part. A.G. Edwards and Alicia agreed that �439(a) of the Texas Probate Code governs beneficial ownership of funds in a joint account at financial institutions upon the death of an owner of the account. They disagreed over whether �439(a) applies to financial institutions outside of the context of a dispute over the surviving joint tenant’s right to funds from the JTWROS account or bars the admission of extrinsic evidence of the existence of a joint tenancy with right of survivorship. Section 439(a) provides: “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.” A.G. Edwards argued that �439(a) imposes an absolute requirement, applicable to financial institutions in all circumstances, that any right of a survivor to recover damages involving funds in the JTWROS account or the opening of the account must be premised on the existence of a written agreement saying so. A.G. Edwards asserted that the 8th Court erroneously rewrote the statute by holding �439(a) inapplicable in this case. Alicia countered that �439(a) protects financial institutions only in multiple party disputes as to ownership of the JTWROS account, not in disputes alleging a financial institution’s malfeasance in failing to properly set up the account. Section 439(a), the court stated, governs controversies over the beneficial ownership of the sums in an account between parties, defined as persons with a present right to payment from a multiple party account, including a guardian, personal representative, assignee, or attaching creditor. For a party to have a right of survivorship in a joint account upon the death of the other joint owner, the right must be included in a written agreement signed by the decedent. Without the statutorily required written agreement, the joint owner has no cognizable claim to the sums in a JTWROS account. If �439(a) governs, extrinsic evidence to attempt to prove a right of survivorship is immaterial and is thus precluded, the court stated. In this case, however, the court stated that the dispute is not over whether A.G. Edwards incorrectly paid the funds to Alicia’s siblings. Alicia conceded that without the joint account agreement, A.G. Edwards had no other choice. Alicia conceded this point but claimed that but for A.G. Edwards’ breach of its contract with her and negligent failure to create the JTWROS account, she would have been entitled to sole ownership of the account funds after her father died. The issue, the court stated, is whether Alicia could introduce evidence other than the missing written agreement to establish A.G. Edwards’ tort and breach of contract in failing to set up the JTWROS account. Alicia argued that her claim for damages against A.G. Edwards was not barred by �439(a). The court concluded that �439(a) does not govern Alicia’s claim against A.G. Edwards. A.G. Edwards’ failure to take sufficient steps to create the JTWROS account necessary to establish Alicia’s right of survivorship is a breach of a separate duty owed to Alicia. The evidence showed that Alicia and her father performed the steps necessary to set up a JTWROS account but A.G. Edwards did not perform as agreed. The evidence before the jury included Niemeier’s testimony that he recommended creating the JTWROS account and promised to do so. Alicia and her housekeeper testified that they delivered the necessary documents to A.G. Edwards, and Niemeier testified that he confirmed receipt of at least one of the documents through the A.G. Edwards receptionist. Based on this and other evidence, the jury found that A.G. Edwards agreed to open a joint account with enforceable rights of survivorship for Alicia and her father but failed to do so. Because �439(a) did not apply to her claim, Alicia was not barred from providing such evidence to prove her case against A.G. Edwards. The court then ascertained whether Alicia was required to segregate attorneys’ fees between her breach of contract and tort causes of action. In its 2006 opinion Tony Gullo Motors v. Chapa, the court re-affirmed the rule that “if any attorney’s fees relate solely to a claim for which such fees are unrecoverable, a claimant must segregate recoverable from unrecoverable fees.” It is only when legal services advance both recoverable and unrecoverable claims that the services are so intertwined that the associated fees need not be segregated, the court stated. Thus, the court remanded the case for a new trial on attorneys’ fees. OPINION:Wainwright, J., delivered the opinion of the court.

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