T. Kyle Buehner v. Evansville Teachers Federal Credit Union

• Court: Indiana Court of Appeals
• Decided: December 19, 2013
• Docket: 82A01-1302-CC-61
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. Dec 19 2013, 9:52 am

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE: RHETT D. GONTERMAN TERRY G. FARMER Ziemer, Stayman, Weitzel, & Shoulders, LLP DANIEL R. ROBINSON, JR. Evansville, Indiana Bamberger, Foreman, Oswald & Hahn, LLP Evansville, Indiana

IN THE COURT OF APPEALS OF INDIANA

T. KYLE BUEHNER, ) ) Appellant-Plaintiff, ) ) vs. ) No. 82A01-1302-CC-00061 ) EVANSVILLE TEACHERS FEDERAL ) CREDIT UNION, ) ) Appellee-Defendant. )

APPEAL FROM THE VANDERBURGH SUPERIOR COURT The Honorable David D. Kiely, Judge Cause No. 82D03-1104-CC-1946

December 19, 2013 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge Timothy Kyle Buehner (“Kyle”) appeals the Vanderburgh Superior Court’s

judgment in favor of the Evansville Teachers Federal Credit Union (“the Credit Union”)

finding that the Credit Union had authority to seize funds in Kyle’s savings account to

satisfy his father’s debt. The dispositive issue presented in this appeal is whether Kyle’s

father was a joint owner of the savings account.

We affirm.

Facts and Procedural History

Kyle was born in December 1980 to Mary T. Buehner (“Mother”) and Timothy K.

Buehner (“Father”). In 1981, Mother was a member of the Credit Union, which is a

federally chartered credit union. On July 2, 1981, Mother executed a written account

agreement (“the 1981 Agreement”) to open a savings account for Kyle (“the Savings

Account”). The application for membership in the Credit Union was signed by Mother as

“Timothy Kyle Buehner by mother.” Appellant’s App. p. 36. Deposits into this account

were made by Mother on Kyle’s behalf or by Kyle himself. Father never withdrew or

deposited funds into the Savings Account.

In March 1998, when Kyle was seventeen-years-old, Kyle, Mother, and Father

executed an updated Application for Membership as well as a Joint Share Account

Agreement for the Savings Account (“the 1998 Agreement”). Kyle, Mother, and Father

signed the 1998 Agreement, and listed their social security numbers and dates of birth.

The agreement provides in pertinent part:

2 The Evansville Teachers Federal Credit Union is hereby authorized to recognize any of the signatures subscribed below in the payment of funds or the transaction of any business for this account. The joint owners of this account hereby agree with each other and with said credit union that all sums now paid in on shares, or heretofore or hereafter paid in on shares by any or all of said joint owners to their credit as such joint owners with all accumulations thereon, are and shall be owned by them jointly, with right of survivorship and be subject to the withdrawal or receipt of any of them, and payment to any of them or the survivor or survivors shall be valid and discharge said credit union from any liability for such payment. The joint owners also agree to the terms and conditions of the account as established by the credit union from time to time. Any or all of said joint owners may pledge all or any part of the shares in this account as collateral security to a loan or loans from the credit union, if said joint owner is a member of the Credit Union.

Appellant’s App. p. 38.

On June 2, 1999, after Kyle’s eighteenth birthday and prior to the start of his

freshman year of college, Kyle, Mother, and Father executed an additional Agreement

and Application with the Credit Union to open a joint checking account (“the Joint

Checking Account”). The Joint Checking Account agreement did not include any

collateral pledge terms.

On November 29, 2007, Father executed and delivered a promissory note to the

Credit Union, with a maturity date of December 15, 2008. The original principal amount

was $50,000. The promissory note was also governed by a business loan agreement

executed by Father and the Credit Union. That agreement provided that “all loan

advances under this [promissory note] are secured by all shares and deposits in all joint

and individual accounts Borrower has with Lender now and in the future. Borrower

authorizes Lender . . . to apply the balance in these accounts to pay any amounts due” in

the event of Borrower’s default. Ex. Vol., Stipulated Joint Ex. U. On July 2, 2010, the

3 promissory note was in default and the Credit Union transferred $46,523.34 from the

Savings Account to pay the balance owed on Father’s note.

On April 27, 2011, Kyle filed a complaint against the Credit Union alleging

breach of contract, breach of trust, fraud and conversion. Kyle claimed that the Credit

Union illegally seized his funds to satisfy Father’s debt to the Credit Union. A bench

trial was held on December 10, 2012, and the trial court issued Findings of Fact and

Conclusions of Law shortly thereafter. The trial court entered judgment in favor of the

Credit Union after concluding that the Credit Union “was within its rights to debit [the

Savings Account] and apply the proceeds toward the outstanding loan balance upon the

maturity of the Note.” Appellant’s App. p. 18. Kyle now appeals. Additional facts will

be provided as necessary.

Standard of Review

The trial court issued findings of fact and conclusions thereon pursuant to Indiana

Trial Rule 52(A). Under such circumstances, our standard of review is well-settled:

First, we must determine whether the evidence supports the trial court’s findings of fact. Second, we must determine whether those findings of fact support the trial court’s conclusions of law. We will set aside the findings only if they are clearly erroneous. Findings are clearly erroneous only when the record contains no facts to support them either directly or by inference. A judgment is clearly erroneous if it applies the wrong legal standard to properly found facts. In applying this standard, we neither reweigh the evidence nor judge the credibility of the witnesses. Rather, we consider the evidence that supports the judgment and the reasonable inferences to be drawn therefrom. To make a determination that a finding or conclusion is clearly erroneous, our review of the evidence must leave us with the firm conviction that a mistake has been made.

4 Hartley v. Hartley, 862 N.E.2d 274, 281 (Ind. Ct. App. 2007) (quoting Gregg v. Cooper,

812 N.E.2d 210, 214–15 (Ind. Ct. App. 2004), trans. denied).

Discussion and Decision

The dispositive issue presented in this appeal is whether Father was a joint owner

of the Savings Account. Kyle argues that the Savings Account was a custodial savings

account and he is the sole owner of the Savings Account; therefore, the Credit Union’s

seizure of his funds to satisfy Father’s debt was unauthorized and illegal.

In finding number three, the trial court found that Mother solely executed a written

account agreement on July 2, 1981, “as custodian for Kyle and opened a savings account

for Kyle[.]” Appellant’s App. p. 13. Therefore, the trial court implicitly found that

Father was not a joint owner of the Savings Account when it was opened in 1981.

We also observe that contrary to Kyle’s claim, the Savings Account was not a

custodial account as that term is used in the Uniform Transfer to Minors Act, which was

enacted in 1989 to replace the Uniform Gifts to Minors Act. See Tr. p. 122; Ind. Code §

30-2-8.5-24 (providing that “[c]ustodial property is created and a transfer is made if . . .

money is paid or delivered to a broker or financial institution for credit to an account in

the name of [] the transferor . . . followed by the words: ‘as custodian for [name of

minor] under the Indiana uniform transfers to minors act’”) (formerly Ind. Code § 30-2-8-

1 et seq.). On the application for membership, Mother simply signed, “Timothy Kyle

Buehner by mother.” Appellant’s App. p. 36. Mother did not designate herself as Kyle’s

custodian.

5 Also, the 1981 Agreement expressly states that the account is a “joint” account.

See id. at 37. The agreement also expressly provides that the “joint owners of this

account, hereby agree with each other and with said Credit Union that all sums now paid

in on shares, or heretofore or hereafter paid in on shares by any or all of said joint owners

to their credit as such joint owners with all accumulations thereon, are and shall be owned

by them jointly, with right of survivorship . . . .”1 Id.

The trial court entered the following additional findings concerning ownership of

the Savings Account:

4. On March 10, 1998, [Kyle, Mother and Father] executed an updated Application for Membership as well as an updated Joint Share Account Agreement . . . for the purpose of updating each of the parties’ signatures on record. 5. The signing of the application and account agreement in 1998 ratified in all respects each of the parties’ membership in [the Credit Union], as well as each parties’ joint ownership of the [Savings Account]. *** 8. On June 2, 1999, [Kyle, Mother, and Father] executed an additional Agreement and Application with [the Credit Union] relating to a Checking Agreement with Overdraft Transfer from Regular Shares and/or Loan Account agreement with [the Credit Union} . . . . 9. The signing of the application and checking agreement in 1999 further ratified each of the parties’ membership in [the Credit Union], as well as each parties’ joint ownership of the [Savings Account] and the [Checking Account].

Appellant’s App. pp. 14-15. The Savings and Checking Accounts exist under the same

member number and the “Overdraft Transfer from Regular Shares and/or Loan Account”

1 In light of this evidence, we conclude that the trial court’s use of the term “custodian” in finding number 3 was not used as a term of art, but simply as a reference to the relationship between Kyle and Mother. 2 The account statements were specifically addressed to T. Kyle Buehner on the first line and “Mary or 6 agreement signed by Kyle, Mother, and Father lists the account number for the Savings

and Checking Accounts.

Kyle argues that the trial court’s finding that Mother opened the Savings Account

“as custodian for Kyle” is “inconsistent with the conclusion that the” 1999 Agreement

ratified “each parties’ joint ownership of the” Savings Account. Appellant’s Br. at 10.

Kyle contends that “ratification does not create something new; it only confirms what

previously existed.” Id. at 11. Therefore, because Father was not a joint owner of the

Savings Account when it was created in 1981, Kyle argues that the theory of ratification

cannot be applied to later add Father as a joint owner of the account.

“A principal will be bound by a contract entered into by the principal’s agent on

his behalf regardless of the agent’s lack of authority if the principal subsequently ratifies

the contract as one to which he is bound.” Guideone Ins. Co. v. U.S. Water Sys. Inc., 950

N.E.2d 1236, 1242 (Ind. Ct. App. 2011). Ratification may be express, where the

principal explicitly approves the contract, or implied, where the principal does not object

to the contract and accepts the contract’s benefits. Id. More specifically,

[r]atification means the adoption of that which was done for and in the name of another without authority. It is in the nature of a cure for [lack of] authorization. When ratification takes place, the act stands as an authorized one, and makes the whole act, transaction, or contract good from the beginning. Ratification is a question of fact, and ordinarily may be inferred from the conduct of the parties. The acts, words, silence, dealings, and knowledge of the principal, as well as many other facts and circumstances, may be shown as evidence tending to warrant the inference or finding of the ultimate fact of ratification. . . . Knowledge, like other facts, need not be proved by any particular kind or class of evidence, and may be inferred from facts and circumstances.

7 Id. (quotation and citation omitted). Importantly, “[k]nowledge of all the material facts

by the person to be charged with the unauthorized acts of another is an indispensable

element of ratification.” Id. We further observe that “‘[r]atification applies when a party

to a contract, with knowledge of facts entitling that party to rescind the contract, treats the

contract as a continuing and valid obligation, thus leading the other party to believe that

the contract is still in effect.’” Smith v. McLeod Distributing, Inc., 744 N.E.2d 459 (Ind.

Ct. App. 2000) (quoting Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d 1228, 1236 n. 6

(Ind. 1994)).

The trial court properly found that the Savings Account was a joint account when

Mother executed a written account agreement with the Credit Union to open a Savings

Account for Kyle in 1981. See Tr. p. 69; Ex. Vol. Credit Union Ex. C. The 1981

membership application for the Savings Account lists Kyle, Mother, and Father’s initial.

Father signed the Joint Share Account Agreement but his signature is crossed out.

Father’s birthdate and social security number were not listed on the agreement.

In March 1998, when Kyle was seventeen-years-old, Kyle, Mother, and Father

executed an updated Application for Membership as well as a Joint Share Account

Agreement for the Savings Account, the 1998 Agreement. The Credit Union requested

that the parties sign a new agreement because the Credit Union was updating its records

and changing computer systems. Tr. p. 68.

Kyle, Mother, and Father all signed the 1998 Agreement and listed their social

security numbers and dates of birth. The 1981 Agreement and 1998 Agreement are

nearly identical. The 1998 Agreement provides:

8 The Evansville Teachers Federal Credit Union is hereby authorized to recognize any of the signatures subscribed below in the payment of funds or the transaction of any business for this account. The joint owners of this account hereby agree with each other and with said credit union that all sums now paid in on shares, or heretofore or hereafter paid in on shares by any or all of said joint owners to their credit as such joint owners with all accumulations thereon, are and shall be owned by them jointly, with right of survivorship and be subject to the withdrawal or receipt of any of them, and payment to any of them or the survivor or survivors shall be valid and discharge said credit union from any liability for such payment. The joint owners also agree to the terms and conditions of the account as established by the credit union from time to time. Any or all of said joint owners may pledge all or any part of the shares in this account as collateral security to a loan or loans from the credit union, if said joint owner is a member of the Credit Union.

Appellant’s App. p. 38. Also, until 2003, the Savings Account statements were sent to

Kyle, Mother and Father.2

In 1999, after Kyle’s eighteenth birthday, Kyle, Mother, and Father executed an

additional Agreement and Application with the Credit Union to open a joint checking

account. The Savings Account and Joint Checking Account are listed under the same

account or “member” number. See e.g. Appellee’s App. p. 25.

Kyle continued to maintain the Savings Account as a joint account after his

eighteenth birthday, consistent with his implicit understanding pursuant to 1998

Agreement that the Savings Account was a joint account. See Tr. p. 86. After he turned

eighteen, Kyle continued to actively use the Savings Account and Joint Checking

Account. See e.g. tr. p. 92.

2 The account statements were specifically addressed to T. Kyle Buehner on the first line and “Mary or Tim Buehner” on the second line of the address section of the statement. See e.g. Ex. Vol., Credit Union Ex. B.

9 Under these facts and circumstances, we conclude that while the Credit Union

may have initially included Father as a joint owner of the Savings Account, by mistake,

Kyle ratified or acquiesced in the Credit Union’s addition of Father as a joint owner of

the Savings Account by failing to address that error. Father’s name appears on nearly

every document associated with the Savings Account including the account statements up

to 2003. Also, Kyle does not dispute that after his eighteenth birthday he opened a joint

checking account with Mother and Father, which account was listed under the same

member number as the Savings Account. Kyle could have, but failed to, take any action

to remove either of his parents as a joint owner of the account or close the account after

his eighteenth birthday in 1999.

We therefore conclude that the trial court properly found that Kyle, Mother, and

Father were joint owners of the Savings Account. In his Appellant’s Brief, Kyle

concedes that our conclusion in this regard means that the Credit Union had the authority

to seize the funds in the Savings Account to satisfy Father’s debt. See Appellant’s Br. at

9. For all of these reasons then, we affirm the trial court’s judgment in favor of the Credit

Union.

Affirmed.

NAJAM, J., and BROWN, J., concur.