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Stefan v. Lewis

Court of Appeals of Nebraska

December 17, 2013

Debra Stefan, Successor Personal Representative of the Estate of Virginia Hawkins, deceased, appellant,
Roger Lewis, Appellee.


Appeal from the District Court for Hitchcock County: David Urbom, Judge.

Nick Halbur, of Thompson Law Office, P.C., L.L.O., for appellant.

Maurice A. Green, of Green Law Offices, P.C., for appellee.

Inbody, Chief Judge, and Moore and Riedmann, Judges.


Moore, Judge.


Virginia Hawkins added Roger Lewis as a joint owner to her Wells Fargo Bank account. After Hawkins' death, Lewis claimed ownership of the funds in the account. Richard Fuller, personal representative of Hawkins' estate, brought this equitable action in the district court for Hitchcock County against Lewis, seeking the return of funds withdrawn by Lewis after Hawkins' death. Debra Stefan later replaced Fuller as personal representative and was substituted as plaintiff. For the sake of simplicity, we have referred to the plaintiff-appellant in this case as Stefan. The district court entered judgment in favor of Lewis, finding that Hawkins and Lewis were joint owners of the account at the time of Hawkins' death and that Hawkins had not designated Lewis as an agent. Stefan appealed. Because we find that Hawkins did not intend for Lewis to have survivorship rights to the remaining balance in the account, and the account most nearly conforms to an agency account, we reverse the order of the district court and remand the cause with directions to enter judgment in favor of Stefan for return of the sums remaining in the account at the time of Hawkins' death.


Hawkins died from complications with cancer on March 12, 2007. Hawkins died intestate, and her surviving heirs included Fuller, Stefan, another son, and the children of her deceased daughter. Prior to Hawkins' death, Lewis' wife was Hawkins' private paid caregiver. On March 2, 10 days prior to Hawkins' death, she added Lewis as a joint owner of the bank account in question. Also prior to Hawkins' death, Lewis signed the signature card for the account. After her death, the bank informed Lewis that the money was his. On April 17, Lewis consulted with the attorney for Fuller about Lewis' concern regarding any liabilities he might have because his name was on the account. The attorney asked Lewis to turn the account funds over to the estate, which Lewis did not do. On April 26, Lewis completed the bank form to change the account to his name as sole owner. At the time of Hawkins' death, there was a net balance in the account of approximately $96, 000, which was transferred to Lewis.

In the operative complaint, filed September 10, 2007, Stefan alleged that Hawkins lacked donative capacity and was the subject of undue influence, that Lewis fraudulently induced Hawkins to place his name on the account as a joint owner, that the funds received by Lewis greatly exceeded any compensation to which he would have been entitled, and that Lewis breached a fiduciary duty to Hawkins. Stefan asked the district court to impose a constructive trust on all account proceeds and order that Lewis' name be removed from the account, along with other equitable relief.

Trial was held on November 6, 2012. The court heard testimony from several witnesses, including Lewis. We have discussed only those portions of the testimony relevant to the issues on appeal. The court also received various exhibits, including Lewis' deposition and a copy of the application adding Lewis' name to the account.

Lewis testified at trial that he knew Hawkins because his wife took care of her, but that he did not know Hawkins well. Lewis removed snow for Hawkins a couple of times but did not perform odd jobs for her on a regular basis. With respect to the account, Lewis testified that Hawkins asked him to be on the account, that he did not help in any way to create the joint account, and that Hawkins did it "all on her own."

In his deposition, Lewis testified about the Christmas prior to Hawkins' death, when she came to Lewis' house for breakfast. The record shows that Hawkins wrote a check to Lewis and his wife for $10, 000 on December 25, 2006. According to Lewis, Hawkins asked him at that time about signing checks for her because it was becoming difficult for her to do so herself. Lewis testified, "And so that's what I thought I was doing. I was just getting on the account to sign checks." Lewis testified further and confirmed that his understanding was that he was placed on Hawkins' account to sign checks, but he also testified that Hawkins "said one time that I might get some money you know if she died or something. But I didn't know what she was talking about for sure."

Lewis testified that within a week before Hawkins passed away, he met Hawkins' children at her house and signed some checks totaling approximately $50, 000. The checks were already made out and Lewis merely signed them. Lewis thought that the checks were for a few of Hawkins' bills and gifts to Hawkins' children. Lewis testified that this was the only occasion he signed checks from the account prior to Hawkins' death. When Lewis was asked if he was "her power of attorney, " he replied that he did not know what he was, that he went to the bank and was placed on Hawkins' account, and that all he knew at the time was that he was going to sign checks for her. Lewis later testified that, to his knowledge, he was never designated under any written power of attorney or healthcare power of attorney and was never named as a beneficiary of any insurance or other contract with respect to Hawkins. Lewis testified that after the bank informed him the proceeds in the account were his, he used some of the money to purchase things for his business and to pay bills and that there was approximately $8, 000 remaining in the account.

An affidavit was received in evidence at trial from Robert Hawkins, the former spouse of Hawkins. He stated that he was personally familiar with the transactions surrounding the transfer of ownership interests in Hawkins' Wells Fargo Bank account to Lewis and that he believed this to have been a free and voluntary act on behalf of Hawkins. He stated that Hawkins made a promise of ownership transfer to Lewis for his assistance to Hawkins during her last fatal illness. Robert believed that Hawkins was repaying the kindness of Lewis for services provided to Hawkins.

The Wells Fargo Bank form on which Lewis was added to Hawkins' account is a preprinted form entitled "Consumer Account Application for Relationship Change." The name of the banker is listed at the top of the form as well as the account number of the account to be changed. In a section entitled "Relationship Changes, " the form identifies "Virginia A. Hawkins" and "Roger D. Lewis" as the customers and lists their customer numbers. This section of the form also identifies Hawkins' and Lewis' "Current Relationship" as that of "Sole Owner" and "Not Relate, " respectively, and their "New Relationship" as that of "Prim JntOr" and "Sec JntOr." This section indicates that signatures of the customers are not required. The next section of the form lists Hawkins' and Lewis' identifying information including addresses, telephone numbers, and taxpayer identification numbers. The lower half of the form includes sections with information to be completed only for customers in Wisconsin or Texas. The only mention of a "joint account with rights of survivorship" is in the section for "Texas use only." Finally, there is a section certifying the correctness of Hawkins' taxpayer identification number and of the correctness of the information supplied in the form; however, there are no signatures in this section. The form, instead, shows that the signatures were submitted manually.

On January 30, 2013, the district court entered an order finding in favor of Lewis. The court concluded that Hawkins and Lewis were joint owners of the account in question on the date of her death and that she did not designate him as an agent. Accordingly, the court entered judgment in favor of Lewis. Stefan subsequently perfected her appeal to this court.


Stefan asserts that the district court erred in failing to find that Lewis (1) was an agent of Hawkins, (2) owed a fiduciary duty to Hawkins in carrying out the responsibilities of his agency, and (3) breached ...

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