Estate of Ella Mae Haire v. Shelby J. Webster

02/22/2024
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
September 19, 2023 Session

ESTATE OF ELLA MAE HAIRE ET AL. v. SHELBY J. WEBSTER ET AL.

Appeal from the Chancery Court for Knox County
No. 191583-2 Richard B. Armstrong, Jr., Chancellor
___________________________________

No. E2022-01657-COA-R3-CV
___________________________________

Decedent’s son, individually and as personal representative of his mother’s estate, sued
several of his siblings and decedent mother’s bank. Among other things, the son alleged
that the bank breached its duties to the decedent by disbursing funds out of her checking
and savings accounts following her death. Eventually, the bank moved for summary
judgment, arguing that it was not negligent in its handling of the decedent’s accounts, nor
did it breach any contractual duty to either the decedent or her son. The son appeals and,
discerning no error by the trial court, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case remanded

KRISTI M. DAVIS, J., delivered the opinion of the Court, in which FRANK G. CLEMENT JR.,
P.J., M.S., and JOHN W. MCCLARTY, J., joined.

Robin M. McNabb, Knoxville, Tennessee, for the appellant, Phillip Daniel Haire,
Individually and as Personal Representative of the Estate of Ella Mae Haire, Deceased.

J. Michael Winchester and E. Brian Sellers, Knoxville, Tennessee, for the appellee, First
Horizon Bank.

OPINION

BACKGROUND

This appeal stems from a lawsuit between siblings and First Horizon Bank1 (“the
Bank”), arising from payable-upon-death (“POD”) bank accounts originally belonging to
Ella Mae Haire (“Decedent”) and her late husband. Phillip Daniel Haire (“Mr. Haire” or
“Danny Haire”), Shelby Webster, and Paul David Haire are siblings and three of
1
The Bank was formerly known as First Tennessee Bank.
Decedent’s five children. This is the parties’ second time before this Court, the previous
appeal having proceeded all the way to our Supreme Court. Our High Court’s opinion
contains helpful background:

[Decedent] and Paul Haire (“Father”) were married and had five children.
They held title as joint tenants with right of survivorship to real property in
Knoxville, Tennessee, and to bank accounts, including a savings account and
a checking account at First Tennessee Bank, N.A. (“Bank”). In the early
2000s, [Decedent] and Father grew too aged to manage their own affairs.
Thus, their eldest son, Mr. Haire, the plaintiff in this case, assisted his parents
with managing their finances. On August 1, 2005, [Decedent] executed a
durable power of attorney naming Mr. Haire as her attorney-in-fact for
financial matters. Father died on April 1, 2008, and [Decedent] became the
sole owner of all the property she and Father had owned as joint tenants with
right of survivorship, including the checking and savings accounts at issue in
this appeal.

[Decedent] was ninety-one years old when Father died and “incapable of
managing her finances.” On April 18, 2008, about three weeks after Father’s
death, [Decedent] and Mr. Haire completed a new signature card for the
checking account at the Bank. A year later, on October 30, 2009, [Decedent]
and Mr. Haire completed a new signature card for the savings account at the
Bank. In the sections of the signature cards titled “Style of Account,”
[Decedent’s] and Mr. Haire’s names were listed. On both signature cards, an
“X” had been placed in boxes next to preprinted text reading, “Joint tenants
with right of survivorship.” [Decedent’s] and Mr. Haire’s cursive signatures
appeared on lines at the bottom of the signature cards beneath the preprinted
instruction “SIGN HERE (exactly as Account is to read and as checks or
withdrawals are to be signed).”

From 2008 to 2012, Mr. Haire served as [Decedent’s] primary caretaker, and
during this time, [Decedent’s] health continued to decline. She no longer
drove and rarely left her home. Mr. Haire hired a home health care service to
visit her and attend to her personal needs, paying for the expenses related to
her care with funds from certificates of deposit he and [Decedent] also held
jointly at the Bank.

Near the beginning of 2012, due to disagreements with his younger sister,
Shelby Webster, Mr. Haire “relinquished management of [Decedent’s]
affairs” to Mrs. Webster and to his brother, Paul David Haire (“Mr. David
Haire”). Mrs. Webster “lived in New Mexico and visited [Decedent] a few

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times a year for one to two weeks at a time.” Mr. David Haire and his wife
lived in Knoxville.

According to the allegations of Mr. Haire’s complaint, “from early 2012 until
her death on November 15, 2013,” [Decedent] was “incompetent to manage
her own affairs and did not possess the legal capacity to execute deeds,
contracts, and other legal documents.” When Mr. Haire surrendered
[Decedent’s] care to his siblings, he did not discuss with anyone the savings
and checking accounts he and [Decedent] held at the Bank as joint tenants
with right of survivorship, nor at any time did he sign paperwork or take any
action to remove his name as a joint tenant of those accounts.

Nevertheless, a new set of signature cards was completed on June 7, 2012,
for the savings and checking accounts and later processed by the Bank.
[Decedent’s] name appeared in the section titled “Style of Account.” A box
next to the preprinted text “Joint tenants with right of survivorship” was
blank, but an “X” had been marked in a box next to a blank line, and the
abbreviations “POD SOL” appeared on that line. [Decedent’s] cursive
signature and Mrs. Webster’s and Mr. Haire’s names appeared on lines at the
bottom of the signature cards beneath the preprinted instruction “SIGN
HERE (exactly as Account is to read and as checks or withdrawals are to be
signed).” Next to the names of Mrs. Webster and Mr. Haire, the abbreviation
“PUD” appeared.

The Bank later processed another set of signature cards that was completed
on October 5, 2012. The names of [Decedent], Mrs. Webster, Mr. David
Haire, and Mr. Haire appeared in the section titled “Style of Account.” The
abbreviations “POA POD” appeared next to the names of Mrs. Webster, Mr.
David Haire, and Mr. Haire. The box next to the preprinted phrase “Joint
tenants with right of survivorship” was again blank, but an “X” appeared in
the box next to the preprinted phrase “Additional authorized signer (Power
of Attorney).” An “X” also appeared in the box next to the blank line, and on
that line the abbreviations “POD SOL” had been typed. The cursive
signatures of [Decedent], Mrs. Webster, and Mr. David Haire and the printed
name of Mr. Haire appeared below the instruction “SIGN HERE (exactly as
Account is to read and as checks or withdrawals are to be signed).” Next to
the names of Mrs. Webster, Mr. David Haire, and Mr. Haire were the
abbreviations “POA/POD.” On October 8, 2012, three days after the
foregoing signature cards were completed, [Decedent] executed a durable
power of attorney naming Mr. David Haire as her attorney-in-fact and
naming Mrs. Webster as his successor, should he be unable to serve as
attorney-in-fact.

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Yet another set of signature cards was completed on November 16, 2012, and
subsequently processed by the Bank. This time, the savings account signature
card listed the names of [Decedent] and Mrs. Webster in the “Style of
Account” section. The box next to the preprinted text “Joint tenants with right
of survivorship” had been left blank, but an “X” appeared in the box next to
the blank line, and “SOL owner POD” had been written on that line. Beneath
the instruction “SIGN HERE (exactly as Account is to read and as checks or
withdrawals are to be signed)” were [Decedent’s] and Mrs. Webster’s cursive
signatures and Mrs. Webster’s handwritten printed name. Next to Mrs.
Webster’s cursive signature was the abbreviation “POA,” and next to her
handwritten printed name was the abbreviation “POD.”

The checking account signature card completed November 16, 2012, listed
the names of [Decedent] and Mr. David Haire in the “Style of Account”
section. Next to Mr. David Haire’s name were the handwritten abbreviations
“POA/POD.” The box next to the preprinted text “Joint Tenants with right
of survivorship” was again blank, but an “X” appeared in the box next to the
blank line, and on that line the abbreviations “SOL POD” appeared. Beneath
the instruction “SIGN HERE (exactly as Account is to read and as checks or
withdrawals are to be signed)” were [Decedent’s] and Mr. David Haire’s
cursive signatures and Mr. David Haire’s handwritten printed name. Next to
Mr. David Haire’s cursive signature was the abbreviation “POA,” and next
to his handwritten printed name was the abbreviation “POD.”

About a year later, on October 17, 2013, the final signature card for the
checking account was completed and later processed by the Bank. The names
of [Decedent], Mrs. Webster, and Mr. David Haire appeared in the section
titled “Style of Account.” Next to Mr. David Haire’s and Mrs. Webster’s
names were the abbreviations “POA POD.” The box next to the preprinted
text “Joint tenants with right of survivorship” was still blank. An “X”
appeared in the box next to the preprinted text “Additional authorized signer
(Power of Attorney)” and in the box next to the preprinted blank line. On the
blank line the abbreviations “POD SOL” were typed. Beneath the instruction
“SIGN HERE (exactly as Account is to read and as checks or withdrawals
are to be signed)” were [Decedent’s], Mrs. Webster’s, and Mr. David Haire’s
cursive signatures. Next to Mrs. Webster’s and Mr. David Haire’s signatures
were the abbreviations “POA POD.” [Decedent] died on November 15, 2013,
less than a month after this final signature card was completed.

After [Decedent’s] death, Mr. Haire was appointed personal representative
of her estate. Mr. Haire then learned, for the first time, that he was not listed
as a joint tenant with right of survivorship on the savings and checking

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 accounts at the Bank at the time of [Decedent’s] death. He also learned that
the Bank had paid the funds remaining in the savings account, approximately
$129,000.00, to Mrs. Webster and had paid the balance of the checking
account, approximately $11,500.00, to Mr. David Haire and Mrs. Webster.

Est. of Haire v. Webster, 570 S.W.3d 683, 685–87 (Tenn. 2019) (footnotes omitted). Mr.
Haire filed his lawsuit in the Chancery Court for Knox County (“trial court”) on May 9,
2016, naming Mrs. Webster, Paul David Haire, and various other individuals as
defendants.2 Mr. Haire also sued the Bank as both the personal representative of
Decedent’s estate and in his individual capacity, “claim[ing] that, by removing him from
the savings and checking accounts, the Bank had breached its contract with him and
[Decedent] and had engaged in actions that constituted conversion. Mr. Haire attached to
his complaint copies of all of the previously described signature cards.” Id. at 687–88
(footnote omitted).

The Bank filed a motion to dismiss for failure to state a claim for which relief could
be granted, which the trial court granted following a hearing. Mr. Haire appealed but this
Court affirmed. See Est. of Haire v. Webster, No. E2017-00066-COA-R3-CV, 2017 WL
5899860 (Tenn. Ct. App. Nov. 29, 2017). Our Supreme Court concluded, however, that
Mr. Haire’s “complaint [was] sufficient to survive the Bank’s motion to dismiss for failure
to state a claim.” 570 S.W.3d at 696.

Our Supreme Court remanded the case back to the trial court for further proceedings.
By agreement of the parties, Mr. Haire filed an amended complaint, alleging claims against
the Bank for breach of contract, breach of bailment contract, and negligence. Mr. Haire
also asked that the account signature cards signed during and after 2012 be declared void
due to Decedent’s incapacity and/or undue influence, and that a constructive trust be
imposed on the account funds. To the extent a constructive trust was not possible because
the funds had been disbursed, Mr. Haire requested money damages.

Lengthy trial delays ensued due to the COVID-19 pandemic. Eventually, the Bank
filed a motion for summary judgment, the subject of the present appeal, on August 12,
2022. The trial court modified the trial date and set the motion for summary judgment for
hearing on November 7, 2022. In support of its motion, the Bank filed, among other things,
the affidavit of Tina L. Jones (“Jones affidavit”) and the affidavit of Tracy L. Pressley
(“Pressley affidavit”). Ms. Jones is the Vice President of the Bank, and her affidavit
provided, as relevant, that she previously worked as a branch manager and in that capacity
had personal interactions with Decedent as well as Mrs. Webster and Mr. Paul David Haire.
Ms. Jones recalled assisting Decedent, in person, with the execution of the signature cards

2
This appeal pertains only to Mr. Haire’s claims against the Bank, and no other parties are
participating.

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with which Mr. Haire takes issue. The Jones affidavit also provides that to the best of Ms.
Jones’ memory, Decedent appeared to understand the nature and consequences of the
disputed signature cards. The Pressley affidavit explains that Ms. Pressley is Vice
President and Retail Market Support Specialist/East Market for the Bank. Ms. Pressley
stated that she had been employed by the Bank for many years and was familiar with the
depositor agreements controlling the accounts at issue.

The Bank argued in its motion that Mr. Haire’s claims to declare the signature cards
void, impose a constructive trust on the accounts, and obtain money damages, were
unsupported by the depositor agreements and applicable law. According to the Bank,
Decedent’s alleged incompetence or undue influence by the siblings was insufficient to
establish liability against the Bank. The Bank also argued estoppel and laches, noting that
the accounts at issue were closed and the funds distributed to the beneficiaries years before
the present litigation. Along with the affidavits and other materials, the Bank filed with its
motion five depositor agreements. The Bank claimed the agreements establish rules and
contractual terms controlling its accounts from 2007 through 2014. Relying on the
depositor agreements, the Bank asserted that Mr. Haire could not establish a breach of
contract, as the terms of the depositor agreements allow changes in account ownership:

The relevant Depositor Agreements in effect at all material times contain
specific provisions and terms appointing each person that is a joint owner or
account holder signing a signature card as attorney in fact for each other
person signing the signature card “for all matters involving the account,
rendering each of you personally liable for the others account activity,
including but not limited to receiving and giving notice,... appointing or
removing additional signers, and withdrawing funds from charging or
terminating the account.”

On October 31, 2022, Mr. Haire filed a motion to strike portions of the Bank’s rule
56.03 statement of undisputed material facts. Mr. Haire argued that several of the Bank’s
purported facts were not supported by admissible evidence and were not concise statements
containing only one fact. Because the Jones and Pressley affidavits contain statements
about interactions with Decedent, Mr. Haire also argued that certain statements in the
affidavits were inadmissible under the Dead Man’s statute. See Tenn. Code Ann.
§ 24-1-203.

The trial court held a hearing on November 7, 2022, after which it took the motion
to strike and the motion for summary judgment under advisement. It then entered an order
on November 28, 2022, denying Mr. Haire’s motion to strike and granting the Bank’s

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motion for summary judgment as to all of Mr. Haire’s claims against the Bank.3 The trial
court certified the order as final, and Mr. Haire filed a timely notice of appeal to this Court.

ISSUES

Mr. Haire raises the following issues on appeal:

1. Whether the trial court erred in denying Mr. Haire’s motion to strike.

2. Whether the trial court erred in granting the Bank’s motion for summary
judgment.

DISCUSSION

A. Motion to strike

Mr. Haire argues first that the trial court erred in denying his motion to strike,
making several sub-arguments in support. First, Mr. Haire takes issue with the Pressley
affidavit and the depositor agreements, claiming that the depositor agreements are
inadmissible. Evidence offered in support of a motion for summary judgment must be
admissible, and “evidence that would be substantively inadmissible at trial would likewise
be inadmissible at the summary judgment stage.” Lexon Ins. Co. v. Windhaven Shores,
Inc., 601 S.W.3d 332, 340 (Tenn. Ct. App. 2019) (quoting Shipley v. Williams, 350 S.W.3d
527, 564, 565 & n.12 (Tenn. 2011) (Koch, J., concurring in part and dissenting in
part)). “An abuse of discretion standard applies to decisions regarding the admissibility of
evidence filed in support of or in opposition to motions for summary judgment.” Id.

In relevant part, the Pressley affidavit provides that

the Depositor Agreements attached to the Bank’s Answer, Counterclaims,
and Crossclaims, as amended, as Exhibits 1-5, inclusive, are true and
complete copies of the Depositor Agreements relating to the Accounts that
establish rules and contractual terms that control such Accounts at the Bank
from and after 2007 through and including 2013-14[.]

Ms. Pressley opined in her affidavit that she was familiar with the Bank’s depositor
agreements and the types of accounts to which those agreements apply, including
Decedent’s checking and savings accounts. The Pressley affidavit also provides that the
3
The trial court’s final order provides that during the November 7, 2022 hearing, Mr. Haire
conceded that the issue of a constructive trust was moot. Mr. Haire does not challenge that on appeal or
address his claim for a constructive trust at all. Nor does he address the trial court’s dismissal of his claim
for breach of bailment contract. Accordingly, we need not address these claims.

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signature cards and depositor agreements associated with Decedent’s accounts were
retained by the Bank in its normal course of business.

According to Mr. Haire, the depositor agreements should be “disregarded” because
“Ms. Pressley cannot tie each Depositor Agreement to the time period during which it
allegedly governed the accounts forming the basis of [Mr. Haire’s] claims against the
Bank.” Mr. Haire urges that “the applicable dates and duration of a contract are material
terms[,]” and without them, “the documents are not relevant to the Bank’s defense against
[Mr. Haire’s] breach of contract claims and should have been stricken.” At the November
7, 2022 hearing, Mr. Haire argued that the signature cards, which he admits signing, are
contracts standing alone. Thus, he contends the depositor agreements are unnecessary.

The trial court rejected Mr. Haire’s objections to the Pressley affidavit and the
depositor agreements, concluding in its final order as follows:

As to the admissibility and authenticity of the evidence proffered on
summary judgment by the Bank, the Court finds and concludes that the
affidavits submitted by the Bank, which states that the affiants are personally
familiar with the Bank’s records, properly authenticate the documents to
which they reference pursuant to Tenn. R. Evid. 901. The affidavit of Mrs.
Pressley further states that the copies of the Depositor Agreements and the
Signature Cards as attached to the various pleadings in this case, including
the Motion for Summary Judgment, are true and accurate copies of the
Bank’s records. The Court is also of the opinion that the documents would
be admissible at trial as the records are relevant to the matter and qualify for
a hearsay exception under Tenn. R. Evid. 803(6).

The trial court did not abuse its discretion. While Mr. Haire makes much of the fact
that the Bank has not explained the exact dates upon which each depositor agreement went
into effect and terminated, it is not necessarily problematic given the particular
circumstances of this case. None of the depositor agreements contain termination dates.
Rather, all furnished versions of the Bank’s depositor agreement provide that a customer’s
bank account may be closed and the agreement terminated by the customer at any time, but
also that the Bank may revise its depositor agreements at any time.4 The Bank is also

4
In Estate of Haire, our Supreme Court noted that, per the complaint allegations, “Mr. Haire was
an owner of the account in a contractual relationship with the Bank,” and that “[c]ontracts in Tennessee
may not be modified except with the consent of all the parties.” 570 S.W.3d at 693 (citing Galbreath v.
Harris, 811 S.W.2d 88, 92 (Tenn. Ct. App. 1990)). However, in the first appeal our Supreme Court
addressed only whether Mr. Haire’s allegations were sufficient to withstand a Tennessee Rule of Civil
Procedure 12.02(6) challenge. The Supreme Court did not consider the language of the depositor
agreements, which provide that the Bank may revise the agreement at any time and that the customer
therefore may terminate the relationship at any time.

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required, under all versions of the depositor agreement, to maintain a copy of the current
agreement for the customer’s inspection. Contrary to Mr. Haire’s contentions, it is possible
under the circumstances for more than one depositor agreement to apply to one bank
account, depending upon how many times the Bank revises its blanket depositor agreement
while that bank account is open. The Bank provided its revised depositor agreements for
the years 2007, 2008, 2009, 2011, and 2013. Ms. Pressley explained in her affidavit that
these agreements controlled the accounts at issue during the relevant time period, the clear
import being that the previous depositor agreement controls until the Bank issues a revised
version.

Mr. Haire signed the checking account signature card on April 18, 2008, and the
savings account signature card on October 30, 2009. Both signature cards provide that
“signers below acknowledge receipt of the Depositor Agreement with disclosures for the
account indicated and agree to be bound by its terms as well as any changes or additions
hereafter adopted by [the Bank].” (Emphasis added). Accordingly, the Bank’s failure to
more specifically tie the depositor agreements to particular dates is inapposite. The Bank
had the right to revise its agreement with Mr. Haire and Decedent at any point. While the
Pressley affidavit could have been more specific, we do not agree with Mr. Haire that the
depositor agreements are entirely irrelevant on this basis. Nor can we endorse his argument
that the signature cards alone represent the full terms of Mr. Haire’s agreement with the
Bank; indeed, the plain language of the signature cards quoted above belies that argument.
Mr. Haire was bound by each version of the depositor agreement that was in effect during
the times he was a joint owner on his mother’s accounts.5

Moreover, Mr. Haire has not explained in his brief, with sufficient citations to the
technical record and legal authority, how the trial court’s ruling amounts to an abuse of its
broad discretion on evidentiary issues. See Lexon Ins. Co., 601 S.W.3d at 340 (“An abuse
of discretion standard applies to decisions regarding the admissibility of evidence filed in
support of or in opposition to motions for summary judgment.”). Even if we disagreed
with the trial court’s ruling on this issue, which we do not, we are not permitted under the
deferential standard of review to substitute our judgment for that of the trial court. Myint
v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). Rather, Mr. Haire would need to
show that the trial court applied an incorrect legal standard, reached an illogical conclusion,
based its decision on a clearly erroneous assessment of the evidence, or employed
reasoning that caused an injustice. State v. Clark, 452 S.W.3d 268, 287 (Tenn. 2014)
(citing State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008)). He has not done so.

5
As addressed in more detail below, the provisions of the depositor agreements that are dispositive
in this appeal are the same in each revised version of the agreement. This buttresses our conclusion that
despite the lack of better specificity in the Bank’s affidavits, the depositor agreements are not irrelevant.

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 Next, Mr. Haire claims that the trial court erred in denying his motion to strike
because certain portions of the Jones and Pressley affidavits violate Tennessee Code
Annotated section 24-1-203, also known as the Dead Man’s statute, which provides:

In actions or proceedings by or against executors, administrators, or
guardians, in which judgments may be rendered for or against them, neither
party shall be allowed to testify against the other as to any transaction with
or statement by the testator, intestate, or ward, unless called to testify thereto
by the opposite party. If a corporation is a party, this disqualification shall
extend to its officers of every grade and its directors.

The statute’s purpose “is to protect estates from spurious claims and prevent
interested parties from giving self-serving testimony regarding conversations or
transactions with the deceased when the testimony involves transactions or statements that
would either increase or decrease the deceased’s estate.” Mitchell v. Johnson, 646 S.W.3d
754, 765 (Tenn. Ct. App. 2021) (citing In re Est. of Marks, 187 S.W.3d 21, 28 n.2 (Tenn.
Ct. App. 2005)). Section 24-1-203 is “an exception to the presumption of competence that
exists under [Tennessee Rule of Evidence 601], which states that ‘[e]very person is
presumed competent to be a witness except as otherwise provided in these rules or by
statute.’” Id. at 765 n.12. As such, the statute “must be strictly construed against the
exclusion of testimony and in favor of its admission.” Id. (citing Haynes v. Cumberland
Builders, Inc., 546 S.W.2d 228, 230–31 (Tenn. Ct. App. 1976)).

Here, Mr. Haire sought exclusion of certain portions of the Pressley and Jones
affidavits, particularly portions in which Ms. Jones opines about having seen Decedent
execute the later signature cards. The trial court rejected Mr. Haire’s argument, finding
section 24-1-203 inapplicable because Ms. Pressley and Ms. Jones are not “officers” of the
Bank within the meaning of the statute.

While we agree with the trial court’s ultimate conclusion that the Dead Man’s statute
is inapplicable in this case, we reach that conclusion on a different basis. See Bobo v. City
of Jackson, 511 S.W.3d 14, 26 n.14 (Tenn. Ct. App. 2015) (explaining that this Court may
affirm a trial court’s entry of summary judgment on grounds different than those found by
the trial court, so long as those grounds are supported by the record). Section 24-1-203
bars “interested parties from giving self-serving testimony regarding conversations or
transactions with the deceased when the testimony involves transactions or statements that
would either increase or decrease the deceased’s estate.” Mitchell, 646 S.W.3d at 765
(citing Est. of Marks, 187 S.W.3d at 28 n.2); see also Holliman v. McGrew, 343 S.W.3d
68, 73 (Tenn. Ct. App. 2009); Newark Ins. Co. v. Seyfert, 392 S.W.2d 336 (Tenn. 1964).
In Newark Ins. Co., for example, this Court held that statements by a widow were
permissible under the statute because the life insurance proceeds at issue would go directly
to the decedent’s widow, as opposed to the widow as executrix of the deceased’s estate:

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 Since in this case the recovery would not go to the estate but to statutorily
designated beneficiaries, and the judgment would not be for or against Mrs.
Seyfert as personal representative, her interest as such being nominal, the
estate having no interest whatsoever in the res of the action, the insurance
proceeds, we are of opinion the statute does not apply. (See Miller v. First
Natl. Bank of Linton, 62 N.D. 122, 242 N.W. 124; 97 C.J.S. Witnesses § 137;
Pugh v. Turner, 145 Tex. 292, 197 S.W.2d 822, 172 A.L.R. 707; St. Louis
Union Trust Co. v. Hammans, 204 Ark. 298, 161 S.W.2d 950[)].

Id. at 345–46; see also Baker v. Baker, 142 S.W.2d 737, 744 (Tenn. Ct. App. 1940) (“[W]e
think it a reasonable view that the statute does not contemplate a proceeding, the result of
which can neither increase nor diminish the assets of the estate but concerns only the
manner in which the assets will be distributed.”).

In the present case, the relief sought would not increase or decrease the value of
Decedent’s estate because Mr. Haire, individually, is asking to be restored as the owner of
the bank accounts. In the operative complaint, Mr. Haire states that “[t]he changes made
by the Fiduciaries through those signature cards from and after June 2012 are void or
voidable due to Decedent’s lack of capacity or undue influence[,]” and that “[t]he signature
cards dated June 7, 2012, are [] void or voidable due to the forged signature of Danny
Haire.” The Bank points this out in its principal brief, arguing that no estate funds are
being sought considering Mr. Haire’s posture. Mr. Haire disputes this in his reply brief,
arguing as follows:

[Mr. Haire] would also point out that there was also a formal request for the
Signature Cards from 2012 onward to be voided. Voiding those Signature
Cards could result in a few outcomes, one of which would be that the
decedent’s estate and Danny Haire individually would have each been
entitled to half of the Accounts as of June 7, 2012 by finding that the joint
tenancy was severed by removing Danny Haire’s name from the Accounts.
If that were the court’s holding, the trial court could conceivably require the
Bank to restore those amounts to the respective parties. Doing so would
increase the Estate’s assets by tens of thousands of dollars.

We are unpersuaded by the foregoing, as voiding the signature cards from 2012 on
would simply result in Mr. Haire individually acquiring the account funds. Decedent added
Mr. Haire to her checking account in 2008 and to her savings account in 2009. Decedent
made Mr. Haire a joint tenant with rights of survivorship on both accounts. See Est. of
Haire, 570 S.W.3d at 685. Under all versions of the Bank’s depositor agreement, funds in
joint accounts with rights of survivorship belong to the surviving account owner. Per every
version of the depositor agreement, this is true “even if the decedent had a will directing
disposition to someone else.”

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 Voiding all signature cards from 2012 on, as Mr. Haire has consistently requested
from the start of this case, would leave remaining the 2008 and 2009 signature cards on
which Mr. Haire is listed as a joint owner with rights of survivorship.6 Thus, Mr. Haire
would be the sole surviving owner of the accounts. Pursuant to the depositor agreements,
regardless of which version is applicable, the account funds would belong to Mr. Haire
individually as opposed to Decedent’s estate. And Mr. Haire has never suggested that the
2008 and 2009 signature cards should be voided or set aside. See Tenn. Code Ann.
§ 45-2-703(e)(1) (“A designation of joint tenants with right of survivorship, or
substantially similar language, shall be conclusive evidence in any action or proceeding of
the intentions of all named that title vests in the survivor[.]”). Consequently, Mr. Haire has
not sought relief against the Bank that would result in increased assets for Decedent’s
estate. See Holliman, 343 S.W.3d at 73 (“The [Dead Man’s] statute only applies to ‘actions
. . . by or against executors, administrators, or guardians, in which judgments may be
rendered for or against them.’” (quoting Tenn. Code Ann. § 24-1-203)). On appeal, Mr.
Haire argues that because the trial court is a court of equity, there is a world in which some
funds from the accounts could go to Decedent’s estate. This argument is speculative at
best and is inconsistent with the manner in which Mr. Haire has couched and pursued his
claims against the Bank. Because of the plain language of the depositor agreements, and
the nature of joint tenancies with rights of survivorship, we are unconvinced by Mr. Haire’s
argument.

Construing the statute strictly against exclusion and in favor of admissibility, as we
must, see Mitchell, 646 S.W.3d at 765 n.12, we conclude that Tennessee Code Annotated
section 24-1-203 does not apply to the statements with which Mr. Haire takes issue. The
trial court did not err in denying Mr. Haire’s motion to strike on this basis.

Finally, Mr. Haire asserts that the trial court should have granted the motion to strike
certain “undisputed material fact[s]” proffered by the Bank because its “Rule 56 Statement
contained many numbered paragraphs with multiple ‘facts’, such that the statements should
have been stricken or, at a minimum, the Bank should have been required to separate the
paragraphs[.]” According to Mr. Haire, “this process becomes confusing and, in some
cases, potentially misleading for the non-movant.” On this point, the trial court found the
statements sufficient, concluding that “the Court does not find that the statements are so
unconcise as to require striking. Although some of the statements may be somewhat long
and may incorporate many documents, each statement only accomplishes to set out one
fact for consideration.”

6
At the November 7, 2022 hearing, counsel for Mr. Haire stated that the relief sought was “to have
the signature cards declared void from the first one in which Mr. Haire was removed as a co-owner . . .”
Counsel also stated that “[w]e want [the later signature cards] to be nullified and we want to return the
account to its previous status as joint tenants with right of survivorship between [Decedent] and Danny
Haire.”

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 We agree with the trial court’s ruling and find no abuse of discretion. This is
especially true in light of Mr. Haire’s failure to include citations to the appellate record and
legal authority, aside from Tennessee Rule of Civil Procedure 56.03, in this portion of his
appellate brief. See Tenn. R. App. P. 27(a)(7).

Based on all of the foregoing, we find no abuse of discretion in and affirm the denial
of Mr. Haire’s motion to strike.

B. Motion for summary judgment

Mr. Haire’s second issue presented for review is whether the trial court erred in
granting the Bank’s motion for summary judgment. A trial court may grant summary
judgment only if the “pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits . . . show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ.
P. 56.04. The propriety of a trial court’s summary judgment decision presents a question
of law, which we review de novo with no presumption of correctness. Kershaw v. Levy,
583 S.W.3d 544, 547 (Tenn. 2019).

“The moving party has the ultimate burden of persuading the court that there are no
genuine issues of material fact and that the moving party is entitled to judgment as a matter
of law.” Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008). As our Supreme
Court has instructed,

when the moving party does not bear the burden of proof at trial, the moving
party may satisfy its burden of production either (1) by affirmatively negating
an essential element of the nonmoving party’s claim or (2) by demonstrating
that the nonmoving party’s evidence at the summary judgment stage is
insufficient to establish the nonmoving party’s claim or defense.

Rye v. Women’s Care Ctr. of Memphis, 477 S.W.3d 235, 264 (Tenn. 2015). “[I]f the
moving party bears the burden of proof on the challenged claim at trial, that party must
produce at the summary judgment stage evidence that, if uncontroverted at trial, would
entitle it to a directed verdict.” TWB Architects, Inc. v. Braxton, LLC, 578 S.W.3d 879,
888 (Tenn. 2019) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986)).

When a party files and properly supports a motion for summary judgment as
provided in Rule 56, “to survive summary judgment, the nonmoving party may not rest
upon the mere allegations or denials of its pleading, but must respond, and by affidavits or
one of the other means provided in Tennessee Rule 56, set forth specific facts . . . showing
that there is a genuine issue for trial.” Rye, 477 S.W.3d at 265 (internal quotation marks
and brackets in original omitted). “Whether the nonmoving party is a plaintiff or a

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defendant – and whether or not the nonmoving party bears the burden of proof at trial on
the challenged claim or defense – at the summary judgment stage, ‘[t]he nonmoving party
must demonstrate the existence of specific facts in the record which could lead a rational
trier of fact to find in favor of the nonmoving party.’” TWB Architects, 578 S.W.3d at 889
(quoting Rye, 477 S.W.3d at 265). “This court will affirm the trial court’s summary
judgment if it finds that the trial court reached the correct result, ‘irrespective of the reasons
stated.’” Wood v. Parker, 901 S.W.2d 374, 378 (Tenn. Ct. App. 1995) (quoting Clark v.
Metro. Gov’t of Nashville and Davidson Cnty., 827 S.W.2d 312, 317 (Tenn. Ct. App.
1991)).

As a threshold matter, several sub-arguments under Mr. Haire’s second issue lack
both record citations as well as citations to legal authority. The Tennessee Rules of
Appellate Procedure provide that the argument of an appellant’s brief shall contain “the
contentions of the appellant with respect to the issues presented, and the reasons therefor,
including the reasons why the contentions require appellate relief, with citations to the
authorities and appropriate references to the record (which may be quoted verbatim) relied
on[.]” Tenn. R. App. P. 27(a)(7).

As we have previously held, a “skeletal argument that is really nothing more
than an assertion will not properly preserve a claim.” Chiozza v. Chiozza, 315
S.W.3d 482, 489 (Tenn. Ct. App. 2009) (quoting Newcomb v. Kohler Co.,
222 S.W.3d 368, 400 (Tenn. Ct. App. 2006)). Moreover, “the failure to make
appropriate references to the record and to cite relevant authority in the
argument section of the brief as required by Rule 27(a)(7) constitutes a
waiver of the issue.” Bean [v. Bean], 40 S.W.3d [52, 55 (Tenn. Ct. App.
2000)].

Little v. City of Chattanooga, 650 S.W.3d 326, 370 (Tenn. Ct. App. 2022).

Mr. Haire’s first sub-argument under issue two is that the Bank failed to “state which
Depositor Agreement(s) applied at the time that Danny Haire was listed as a joint owner
of the Checking and Savings Accounts or how a modification of same could be binding
upon owners who did not have notice of the changes.” However, this argument contains
no citations to the appellate record or supporting legal authority. Consequently, it is
skeletal, and we deem it waived. Further, we addressed this argument in the first section
of our opinion and explained why it is unpersuasive. Mr. Haire acknowledged receipt of
the Bank’s depositor agreements by signing signature cards in both 2008 and 2009, thereby
agreeing to be bound by any changes to the agreement made by the Bank. Consequently,
Mr. Haire was subject to the terms of each revised version of the Bank’s depositor
agreements until he was removed as an account owner.

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 Mr. Haire also asserts that the trial court erred in granting summary judgment to the
Bank as to Mr. Haire’s negligence claim. This argument is also skeletal, as it contains no
citations to the appellate record or supporting legal authority. As such, both of these
arguments are waived pursuant to Tennessee Rule of Appellate Procedure 27, and we need
not consider them. See Little, 650 S.W.3d at 370.

The only remaining argument in Mr. Haire’s brief is the assertion that the trial court
“erred in granting summary judgment to the Bank based on an ‘attorney-in-fact’ provision
in at least one Deposit Agreement.” We understand this argument to be addressing the trial
court’s conclusion that the Bank is entitled to summary judgment on Mr. Haire’s breach of
contract claim.

To reiterate, Mr. Haire claims that the signature cards themselves represent the
contract breached by the Bank. The crux of his claim is that the Bank failed to give Mr.
Haire notice before removing him from Decedent’s accounts and that Mr. Haire did not
consent to being removed as an owner of the accounts. The Bank asserts that there is no
provision, in any version of the depositor agreement, that requires the Bank to have given
Mr. Haire notice before Decedent removed him from her accounts.

The trial court agreed with the Bank, finding that

The Bank’s Rule 56 Statements shows that the Depositor Agreements
that have been included in the Bank’s summary judgment materials are the
Depositor Agreements, inclusively, that were effective after 2007 through
and including 2013 and 2014, which is the entire period of time material to
the claims against the Bank. The April 2008 Signature Card, which is also
included in the Bank’s summary judgment materials, states that “Signers
below acknowledge receipt of the Depositor Agreement with disclosures for
the Account indicated and agree to be bound by its terms as well as any
changes or additions hereafter adopted by bank.” This Signature Card is
signed by the Decedent and by Plaintiff Danny Haire. By signing this
Signature Card, Plaintiff Danny Haire acknowledge [sic] receipt of the
Depositor Agreement and agreed to be bound by its terms as well as any
changes or additions. The Court finds and concludes that the Signature Card
expressly incorporates the terms of the Depositor Agreement and reflects the
Plaintiffs’ assent to be bound by those terms and any changes or additions
thereto.

The Bank’s Rule 56 Statement, however, does not state which
Depositor Agreement was in effect when Plaintiff Danny Haire signed the
April 2008 Signature Card. That being said, the provisions of the Depositor
Agreements on which the Bank relies are essentially identical throughout the

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 five documents the Bank proffers on summary judgment. Upon reviewing
the applicable provisions of the five documents, the Court finds and
concludes that the provisions on which the Bank relies are uniform or, at the
very least, substantively similar between the documents as to not affect this
Court’s construction of the provisions. The Court finds and concludes that
the Bank has shown that the Plaintiffs were not only bound by the 2008
Signature Card, but also by at least one of the five Depositor Agreement, all
of which having the same effective provisions for the purposes of this Motion
for Summary Judgment.

The trial court then reasoned that a “Liability” provision in the 2008 depositor
agreement absolved the Bank:

The Depositor Agreement, by which Plaintiff Danny Haire agreed to
be bound when he signed the April 2008 Signature Card, appoints each joint
owner of an account as an attorney-in-fact for the other joint owners under
the provision titled LIABILITY. Under this provision, Plaintiff Danny Haire
appointed the Decedent as his attorney-in-fact “for all matters involving the
account, ..., including, but not limited to, receiving and giving notice, ...,
pledging or entering separate agreements affecting the account, ..., appoint
or removing additional signers, and withdrawing funds from, charging or
terminating the account.” That provisions also “render[s] each of [the joint
owners] personally liable for the other’s account activity.” The Court finds
and concludes that the plain language of that provision allows Decedent to
modify the contract to remove Plaintiff Danny Haire’s name as joint owner
of the account. The Court further finds and concludes that the Decedent
consented on behalf of Plaintiff Danny Haire as his attorney-in-fact to
remove his name from the account as joint owner.

The LIABILITY provision also acts as a limitation of liability clause
that limits the Bank’s liability to “actual damages proved that are proximately
caused by [the Bank’s] failure to exercise ordinary care.” The Court further
finds and concludes that the Bank’s processing of a new Signature Card at
the direction of the Decedent to remove Plaintiff Danny Haire’s name from
the account is not a failure to exercise ordinary care when Plaintiff Danny
Haire appointed the Decedent as his attorney-in-fact for such an action. The
LIABILITY provision renders a joint account owner personally liable to the
other joint account owners for his or her account activity. The LIABILITY
provision, when read together as a whole, would render the Decedent liable
to Plaintiff Danny Haire for her account activity, including removing his
name as a joint owner, and would remove any liability on part of the Bank.
Any liability the Decedent, or the estate, may have to Plaintiff Danny Haire

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 for the removal of his name as joint owner of the account is not, and has
never been, before the Court in this litigation.

Ultimately, we agree with the trial court’s decision to grant summary judgment on
Mr. Haire’s breach of contract claim. Our analysis, however, is slightly different from that
of the trial court. See Bobo, 511 S.W.3d at 26 n.14; Wood, 901 S.W.2d at 378. The trial
court relied heavily on the “Liability” provision quoted above; however, that provision is
but one piece of the puzzle. Following a thorough review of the record, we conclude that
the Bank was entitled to summary judgment for a number of reasons.

First, Mr. Haire asserted at the summary judgment stage that his breach of contract
action lies based upon the signature cards he admittedly signed in 2008 and 2009.
Nonetheless, those signature cards do not contain provisions supporting Mr. Haire’s breach
of contract claims. Specifically, the cards do not provide that the Bank was required to
give Mr. Haire notice if Decedent removed him as an account owner, nor do the cards
require the Bank to get Mr. Haire’s consent for Decedent to remove him as an account
owner. As such, even if we were to agree with Mr. Haire’s contention that the signature
cards alone contain the terms of Mr. Haire’s contract with the Bank, the cards do not
establish any duty breached by the Bank. In any event, the Bank established in its motion
for summary judgment that the signature cards bind the signers to the terms of the Bank’s
depositor agreement. Importantly, Mr. Haire has not pointed to any provision, in any
version of the depositor agreement, requiring the Bank to give a joint account owner notice
if he or she is removed by another joint owner. Nor do the depositor agreements provide
that one joint owner needs documented consent from another joint owner to take action
related to an account. As the trial court noted, Mr. Haire as a joint owner appointed
Decedent as his attorney-in-fact “for all matters involving the account[s].” This power
included, but was not limited to, “receiving and giving notice, . . . pledging or entering
separate agreements affecting the account[s], . . . appointing or removing additional
signers, . . .” or “charging or terminating the account.” As such, Decedent was allowed to
remove Mr. Haire as a joint owner of, or even terminate altogether, either account. Such
actions would not trigger a contractual obligation by the Bank to notify or obtain consent
from Mr. Haire. On appeal, Mr. Haire has not pointed to anything in the record that
suggests otherwise.

Additional provisions in the depositor agreements insulate the Bank from the type
of contractual liability alleged by Mr. Haire. First, regarding POD accounts, “[t]he
person(s) creating such an account may: (1) change beneficiaries, and (2) withdraw all or
part of the account funds at any time.” Accordingly, the depositor agreements expressly
provide that Decedent was allowed to add Mr. Haire’s siblings as POD beneficiaries at any
point. There is nothing in this provision requiring notice to other account owners or other
beneficiaries. Second, the depositor agreements provide, under a “Power of Attorney”
provision, that the Bank “ha[s] no duty or agreement whatsoever to monitor or insure that

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the acts of the agent are for [the account owner’s] benefit.” The same provision provides
that account owners “agree not to hold [the Bank] responsible for any loss or damage
[account owners] may incur as a result of [the Bank] following instructions given by an
agent acting under a valid power of attorney.” Here, several of the later signature cards
with which Mr. Haire takes issue were executed by his siblings acting as Decedent’s
attorney-in-fact. On the record before us, the Bank had no reason to suspect such action
was nefarious, and, as noted above, the Bank had no contractual duty to monitor such
actions to ensure they were for Decedent’s benefit.

To conclude, there is no language in either the signature cards or the depositor
agreements suggesting that the Bank breached a contractual duty to Mr. Haire or Decedent.
Rather, there are several provisions in the depositor agreements that, when taken together,
protect the Bank from Mr. Haire’s breach of contract claim. When the Bank made this
argument at the summary judgment stage, Mr. Haire’s response was not to point out
contractual provisions requiring the Bank to give Mr. Haire the notice he claims he was
due. See Rye, 477 S.W.3d at 265 (noting that in order to withstand a supported motion for
summary judgment, “the nonmoving party ‘may not rest upon the mere allegations or
denials of [its] pleading,’ but must respond, and by affidavits or one of the other means
provided in Tennessee Rule 56, ‘set forth specific facts’ . . . ‘showing that there is a genuine
issue for trial.’” (quoting Tenn. R. Civ. P. 56.06)). Instead, Mr. Haire chose to die on the
hill of which depositor agreement was in effect on which day. As addressed at length
already, this point is inapposite under the particular circumstances of this case. There is
no provision in any of the agreements requiring the Bank to do what Mr. Haire claims the
Bank failed to do. Further, the relevant provisions discussed in our analysis are the same
in each and every revised version of the Bank’s depositor agreement.

Considering all of the foregoing, we agree with the trial court’s conclusion that the
Bank is entitled to summary judgment as to all of Mr. Haire’s claims. Thus, we affirm the
trial court.
CONCLUSION

The ruling of the Chancery Court for Knox County is affirmed, and this case is
remanded for proceedings consistent with this opinion. Costs on appeal are assessed to the
appellant, Phillip Daniel Haire, individually and as personal representative of the Estate of
Ella Mae Haire, for which execution may issue if necessary.

_________________________________
KRISTI M. DAVIS, JUDGE

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