Estate of Ella Mae Haire v. Shelby J. Webster

03/20/2019

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

January 9, 2019 Session

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

Appeal by Permission from the Court of Appeals

Chancery Court for Knox County

No. 191583-2 Clarence E. Pridemore, Jr., Chancellor

___________________________________

No. E2017-00066-SC-R11-CV

___________________________________

We granted this appeal to determine whether a person listed as a joint tenant with right of

survivorship on checking and savings accounts sufficiently alleged claims for relief

against a bank by asserting that the bank removed his name from the accounts without his

consent and breached its duty to him as a co-owner of the account by accepting forged

signature cards. We conclude that the allegations of the complaint are sufficient to

survive the bank’s motion to dismiss because, under Tennessee law: (1) each joint tenant

with right of survivorship of a multiple-party account is deemed an owner of the account;

(2) all joint tenants have presumptively equal ownership of account funds; (3) a

contractual relationship arises between a bank and joint tenants upon the creation of joint

tenancy bank accounts; (4) contracts cannot be modified except upon consent of the

parties; and (5) no statute affords banks protection from liability for removing a joint

tenant’s name from an account without the joint tenant’s consent. Accordingly, we

reverse the decision of the Court of Appeals affirming the trial court’s judgment granting

the bank’s motion to dismiss for failure to state a claim and remand this matter to the trial

court for further proceedings consistent with this decision.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Appeals

Reversed; Judgment of the Trial Court Vacated and Case Remanded

CORNELIA A. CLARK, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS,

C.J., and SHARON G. LEE, HOLLY KIRBY, and ROGER A. PAGE, JJ., joined.

Robin M. McNabb, Knoxville, Tennessee, for the appellants, Phillip Daniel Haire and

Estate of Ella Mae Haire.

J. Michael Winchester, Knoxville, Tennessee, for the appellee, First Tennessee Bank

National Association.

OPINION

I. Factual and Procedural Background

This appeal arises from the trial court’s grant of a motion to dismiss for failure to

state a claim on which relief may be granted, pursuant to Rule 12.02(6) of the Tennessee

Rules of Civil Procedure. The following facts are summaries or quotations of the

allegations of the complaint, which are taken as true for purposes of this appeal.1

Ella Mae Haire (“Mother”) 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, Mother and Father

grew too aged to manage their own affairs. Thus, their eldest son, Philip Daniel Haire

(“Mr. Haire”), the plaintiff in this case, assisted his parents with managing their finances.

On August 1, 2005, Mother executed a durable power of attorney naming Mr. Haire as

her attorney-in-fact for financial matters. Father died on April 1, 2008, and Mother

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.

Mother 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, Mother and Mr.

Haire completed a new signature card for the checking account at the Bank. A year later,

on October 30, 2009, Mother 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,” Mother’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.” Mother’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 Mother’s primary caretaker, and during

this time, Mother’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 Mother also held jointly at the Bank.

1

Moore-Pennoyer v. State, 515 S.W.3d 271, 273 (Tenn. 2017).

-2-

Near the beginning of 2012, due to disagreements with his younger sister, Shelby

Webster, Mr. Haire “relinquished management of [Mother’s] affairs” to Mrs. Webster

and to his brother, Paul David Haire (“Mr. David Haire”). Mrs. Webster “lived in New

Mexico and visited [Mother] a few 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,” Mother 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 Mother’s care to his siblings, he did not discuss with anyone

the savings and checking accounts he and Mother 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. Mother’s name appeared

in the section titled “Style of Account.”2 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.3 Mother’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 Mother, Mrs. Webster, Mr. David Haire, and Mr. Haire

appeared in the section titled “Style of Account.”4 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

Mother, Mrs. Webster, and Mr. David Haire and the printed name of Mr. Haire appeared

2

On the signature card for the checking account, Mr. Haire’s typed name appeared beneath

Mother’s name, but lines were drawn through it.

3

The signature cards use but do not define the abbreviations “POD,” “PUD,” “POA,” and

“SOL.” In this context, “POD” and “PUD” likely are references to “payable on death” or “payable upon

death,” and “POA” likely is a reference to “power of attorney,” but the record on appeal provides no

contextual clues to the meaning of “SOL.”

4

The names of Mother, Mrs. Webster, and Mr. David Haire are typed onto these signature cards,

but Mr. Haire’s name is written in.

-3-

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, Mother 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.

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 Mother 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 Mother’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 Mother 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 Mother’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 Mother, 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

Mother’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.”

Mother died on November 15, 2013, less than a month after this final signature card was

completed.

-4-

After Mother’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 accounts at the Bank at the time of

Mother’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.

On May 9, 2016, Mr. Haire, in his capacity as personal representative of Mother’s

estate and in his individual capacity, filed a lawsuit against the Bank, Mrs. Webster, Mr.

David Haire, and various other individuals and entities. Mr. Haire claimed that, by

removing him from the savings and checking accounts, the Bank had breached its

contract with him and Mother and had engaged in actions that constituted conversion.5

Mr. Haire attached to his complaint copies of all of the previously described signature

cards.

On July 15, 2016, the Bank filed a motion to dismiss for failure to state a claim for

relief, relying on Rule 12.02(6) of the Tennessee Rules of Civil Procedure. For the

breach of contract claim, the Bank also argued that Mr. Haire had failed to comply with

Rule 10.03 of the Tennessee Rules of Civil Procedure, which states that, when a claim is

founded on a written document, a copy of the document, or its pertinent parts, must be

attached to the pleading, unless one of the enumerated exceptions to Rule 10.03 applies.

The Bank argued that Mr. Haire had failed to attach any document that contractually

obligated the Bank to obtain Mr. Haire’s consent before removing his name from the

joint tenancy with right of survivorship accounts or changing the “ownership, control, or

disposition of funds” of the accounts. The Bank also asserted that two statutes provided

it protection from liability and doomed Mr. Haire’s claims against it. First, the Bank

relied on Tennessee Code Annotated section 45-2-703(a), which provides that a bank is

released and discharged from liability for payment of funds if the payment is to a joint

tenant of a multiple-party deposit account. Tenn. Code Ann. § 45-2-703(a) (Supp.

2018).6 Second, the Bank relied on Tennessee Code Annotated section 45-2-707(a),

which allows a bank to recognize and honor the authority of a depositor’s attorney-in-fact

“to operate, in whole or in part, the account of a depositor . . . until the bank receives

written notice of the revocation of this authority.” Tenn. Code Ann. § 45-2-707(a)

(2007). The Bank claimed that it was entitled to rely on the power-of-attorney Mother

had granted to Mr. David Haire on October 9, 2012.

5

Mr. Haire also alleged a number of claims against other defendants, some of which related to

the real property his Mother had owned, but this appeal involves only his claims against the Bank, so we

confine our discussion to the facts relevant to those claims.

6

Unless indicated otherwise, citations in this opinion are to the current version of the relevant

statutes because no material differences exist between the current statutes and those in effect when the

events giving rise to this appeal occurred.

-5-

Mr. Haire did not file a written response to the Bank’s motion to dismiss. Instead,

on October 21, 2016, just four days before the hearing on the motion, he filed a motion

for leave to amend his complaint and attached the amended complaint he proposed to

file.7 In the amended complaint, Mr. Haire alleged that the Bank had breached the

contracts that arose when the joint tenancy with right of survivorship accounts were

established by changing the ownership of the accounts without his consent. He also

alleged a negligence claim against the Bank, asserting that the Bank owed him a duty as a

co-owner of the accounts and had breached that duty by accepting forged signature cards

removing him as co-owner of the accounts. Finally, he alleged a claim for breach of a

bailment contract. Attached to the amended complaint were copies of all of the signature

cards previously described herein.8

At the October 24, 2016 hearing on its motion, the Bank did not object to the trial

court’s granting Mr. Haire’s motion to amend but simply asserted that the amended

complaint also failed to state a claim for relief against the Bank. Based upon the

agreement of the parties, the trial court orally granted Mr. Haire’s motion to amend, but

the order reflecting this decision was not entered until later.9

The hearing on the motion to dismiss proceeded. At the conclusion of the hearing,

the trial court stated: “In looking at the complaint on its face, concerning the allegations

against [the Bank], I think that lacks clarity and specifics. And, also, most of these

allegations against the [B]ank are conclusory and speculation and, therefore, I’m going to

grant” the Bank’s motion to dismiss. In its written order of dismissal, filed December 12,

2016, the trial court stated that it had granted the Bank’s motion to dismiss “for the

reasons presented and stated at the hearing . . . including oral argument, and the

authorities set forth in the supporting [b]rief filed by the Bank, all such matters being

incorporated herein by reference.” The trial court directed entry of an order of dismissal

with prejudice as to all of Mr. Haire’s claims against the Bank and certified the judgment

as final for purposes of appeal pursuant to Rule 54.02 of the Tennessee Rules of Civil

Procedure.10

7

Based on statements made at the hearing on the motion to dismiss, Mr. Haire apparently filed

his motion to amend late in the day on the Friday before the scheduled Monday hearing on the motion to

dismiss, even though the motion to dismiss had been pending for about three months.

8

The amended complaint also included the numerous other claims Mr. Haire brought against the

other defendants, but as already noted, only the claims Mr. Haire brought against the Bank are at issue in

this appeal.

9

The order granting Mr. Haire’s motion to amend was filed on March 1, 2017.

10

The trial court granted the Bank’s request for attorney’s fees and costs but reserved decision on

the assessment of reasonable and necessary attorney’s fees and litigation costs until the conclusion of the

appeal. On its face, this ruling seemingly conflicts with prior Court of Appeals’ decisions holding that a

case may not be certified as final for purposes of appeal under Rule 54.02 if a trial court reserves a ruling

-6-

Mr. Haire appealed from this December 12, 2016 order. The Court of Appeals

affirmed the trial court’s judgment granting the Bank’s motion to dismiss. In so holding,

the Court of Appeals stated:

It is unclear to us how, taking all of Danny Haire’s allegations as true, the

Bank would be liable. It is no small matter to a breach of contract claim

that a contract is not produced or cited. In this case, the Bank was a mere

stakeholder for the funds in the joint account. When [Mother] designated

Danny Haire as a joint tenant with right of survivorship to her accounts, the

Bank executed her wishes. When [Mother] removed Danny Haire as joint

tenant on the accounts, the Bank also executed her wishes. Danny Haire

acknowledges that [Mother] could have withdrawn the entire sum from the

joint accounts if she wished. That effectively is what happened here.

We are not tasked in this appeal with determining any liability for

the Haire siblings for their role in these events or any possible claim Danny

Haire might have against [Mother’s] estate. We are concerned only with

the Bank’s role herein. In our judgment, the Bank simply did what it was

asked to do by an account holder as allowed by Tennessee law.

Taking all of the factual allegations in Danny Haire’s amended

complaint as true and construing the amended complaint liberally in favor

of Danny Haire, as we must at this stage, we agree with the Trial Court and

hold that Danny Haire failed to state a claim for which relief may be

granted. We affirm the judgment of the Trial Court.

on a request for attorney’s fees. See E Sols. for Bldgs., LLC v. Knestrick Contractor, Inc., No. M2017-

00732-COA-R3-CV, 2018 WL 1831116, at *3–4 (Tenn. Ct. App. Apr. 17, 2018), perm. app. denied

(Tenn. Aug. 9, 2018). But the trial court here acted pursuant to Tennessee Code Annotated section 20-12-

119(c)(3), which states that an award of attorney’s fees and costs made upon the granting of a motion to

dismiss for failure to state a claim “shall be made only after all appeals of the issue of the granting of the

motion to dismiss have been exhausted and if the final outcome is the granting of the motion to dismiss.”

Tenn. Code Ann. § 20-12-119(c)(3) (Supp. 2018). The interplay between prior decisions of the Court of

Appeals and section 20-12-119(c)(3) has generated some confusion concerning the certification of orders

as final under Rule 54.02. See Snyder v. First Tenn. Bank, N.A., No. E2013-01524-COA-R3-CV (Tenn.

Ct. App. Oct. 28, 2013) (unpublished order requiring a plaintiff to explain why a trial court’s reservation

of the assessment of attorney’s fees pursuant to Tennessee Code Annotated section 20-12-119(c) qualified

as a final judgment pursuant to Tennessee Rule of Civil Procedure 54.02). We conclude that a trial

court’s compliance with section 20-12-119(c) does not prevent the certification of an order as final for

purposes of appeal under Rule 54.02. See Snyder v. First Tenn. Bank, N.A., No. E2013-01524-COA-R3-

CV (Tenn. Ct. App. Jan. 15, 2014) (unpublished order acknowledging that, due to the language in

Tennessee Code Annotated section 20-12-119(c), the case was final for purposes of appeal under Rule

54.02 even though the trial court had reserved assessment of attorney’s fees).

-7-

Estate of Haire v. Webster, No. E2017-00066-COA-R3-CV, 2017 WL 5899860, at *11

(Tenn. Ct. App. Nov. 29, 2017).

Mr. Haire then applied for permission to appeal to this Court. We granted the

application and address two issues: (1) whether Mr. Haire sufficiently complied with

Rule 10.03 of the Tennessee Rules of Civil Procedure by attaching the signature cards to

his complaint; and (2) whether the allegations of Mr. Haire’s complaint are sufficient to

survive the Bank’s motion to dismiss for failure to state a claim for relief. 11

II. Standard of Review

This appeal arises from the trial court’s decision granting the Bank’s motion to

dismiss for failure to state a claim under Rule 12.02(6) of the Tennessee Rules of Civil

Procedure. A motion to dismiss on this ground “challenges only the legal sufficiency of

the complaint, not the strength of the plaintiff’s proof or evidence.” Webb v. Nashville

Area Habitat for Humanity, Inc., 346 S.W.3d 422, 426 (Tenn. 2011) (citation omitted).

The relevant and material allegations of the complaint are taken as true, and the plaintiff

is afforded the benefit of all reasonable inferences that may be drawn from the

allegations. Webb, 346 S.W.3d at 426; Brown v. Tenn. Title Loans, Inc., 328 S.W.3d

850, 854 (Tenn. 2010). To survive a motion to dismiss, “‘[t]he facts pleaded, and the

inferences reasonably drawn from these facts, must raise the pleader’s right to relief

beyond the speculative level.’” Webb, 346 S.W.3d at 427 (quoting Abshure v. Methodist

Healthcare–Memphis Hosps., 325 S.W.3d 98, 104 (Tenn. 2010)). “[L]egal arguments or

‘legal conclusions’ couched as facts” are not taken as true. Moore-Pennoyer v. State, 515

S.W.3d 271, 276 (Tenn. 2017) (quoting Webb, 346 S.W.3d at 427). We apply de novo

review to the lower court’s legal conclusions, including its ruling on the legal sufficiency

of the complaint. Webb, 346 S.W.3d at 426. “De novo review also applies to the

questions of statutory construction presented in this appeal . . . .” Smith v. Tenn. Nat’l

Guard, 551 S.W.3d 702, 708 (Tenn. 2018) (citing Moreno v. City of Clarksville, 479

S.W.3d 795, 802 (Tenn. 2015)).

III. Analysis

A. Compliance with Rule 10.03

We consider first whether Mr. Haire complied with Rule 10.03 of the Tennessee

Rules of Civil Procedure. Rule 10.03 provides:

Whenever a claim or defense is founded upon a written instrument other

than a policy of insurance, a copy of such instrument or the pertinent parts

11

Mr. Haire does not contest the trial court’s dismissal of his breach of bailment contract claim,

and this appeal involves only the claims he alleged against the Bank in his individual capacity.

-8-

thereof shall be attached to the pleading as an exhibit unless the instrument

is (1) a matter of public record in the county in which the action is

commenced and its location in the record is set forth in the pleading; (2) in

the possession of the adverse party and this fact is stated in the pleading; (3)

inaccessible to the pleader or is of such nature that attaching the instrument

would be unnecessary or impracticable and this fact is stated in the

pleading, together with the reason therefor. Every exhibit so attached or

referred to under (1) and (2) shall be a part of the pleading for all purposes.

Here, Mr. Haire attached several exhibits to his complaint, including the signature cards

he and Mother completed in April 2008 and October 2009 and the signature cards others

completed from June 2012 to October 2013 by which he was removed from the savings

and checking accounts. While Mr. Haire has alleged a breach of contract claim against

the Bank, his claim is not premised on an allegation that specific language of the

signature cards or account agreements obligated the Bank to obtain his consent before

removing his name from the accounts. Rather, Mr. Haire’s claim is based on his

assertion that he is a co-owner of the accounts by virtue of his status as a joint tenant with

right of survivorship on the accounts. This status, he asserts, obligated the Bank to obtain

his consent before removing him from the accounts. The signature cards Mr. Haire

attached to the complaint confirm that he was by contract a joint tenant with right of

survivorship on the accounts, and the Bank does not dispute his status as such.

Therefore, we conclude that Mr. Haire sufficiently complied with Rule 10.03 by

attaching the signature cards reflecting his status a joint tenant with right of survivorship,

which is the basis of his breach of contract claim.

B. Sufficiency of the Complaint

To determine whether the allegations of Mr. Haire’s complaint, taken as true, are

sufficient to state a claim for relief, we begin with basic principles concerning the nature

of joint tenancy with right of survivorship bank accounts. Tennessee citizens may

establish multiple-party bank accounts as joint tenants with right of survivorship. Tenn.

Code Ann. § 45-2-703(d)(1)(A), (e)(4).12 Indeed, banks are statutorily required to offer

customers the option of choosing the ownership designation “[j]oint tenants with right of

12

At common law, a joint tenancy incidentally and implicitly included a right of survivorship.

Bryant v. Bryant, 522 S.W.3d 392, 399 (Tenn. 2017). But Tennessee never adopted this common-law

definition. Id. at 402–03; see also Tenn. Code Ann. § 66-1-107 (2015) (“In all estates, real or personal,

held in joint tenancy, the part or share of any tenant dying shall not descend or go to the surviving tenant

or tenants, but shall descend or be vested in the heirs, executors, or administrators, respectively, of the

tenant so dying, in the same manner as estates held by tenancy in common.”). So, a joint tenancy with

right of survivorship must be expressly created. Tenn. Code Ann. § 45-2-703(e)(4) (discussing multiple-

party bank accounts and stating that “property held under the title, joint tenancy, carries no right of

survivorship unless a contrary intention is expressly stated”).

-9-

survivorship” when multiple-party accounts are opened or amended. Tenn. Code Ann. §

45-2-703(d)(1)(A).13 Here, Mother and Mr. Haire selected that ownership designation

when amending Mother’s existing checking and savings accounts at the Bank after Father

died.

The creation of a joint tenancy with right of survivorship account gives rise to a

contractual relationship between the depositors and the financial institution. Lowry v.

Lowry, 541 S.W.2d 128, 131–32 (Tenn. 1976) (“[A] joint account agreement with rights

of survivorship establishes a contract which transfers the account proceeds at death by

operation of law.”); see also In re Estate of Miller, 158 S.W.3d 429, 435 (Tenn. Ct. App.

2004) (recognizing that when a customer opens a deposit account, a contractual

relationship forms between the customer and the bank evidenced by the signature card

and/or other documents that show the terms under which the account will be managed).

Therefore, as Mr. Haire alleged, a contractual relationship arose between the Bank, Mr.

Haire, and Mother when the accounts were established.

Additionally, each joint tenant is considered an owner of the account, with equal

authority to withdraw funds from the account and with presumptively equal ownership of

account funds. A statute declares the right of joint tenants to withdraw funds from a

multiple-party account, stating:

13

Subsection (d) provides:

(d)(1) When opening a multiple-party deposit account, or amending an existing

deposit account so as to create a multiple-party deposit account, each bank shall utilize

account documents that enable the depositor to designate ownership interest therein in

terms substantially similar to the following:

(A) Joint tenants with right of survivorship;

(B) Additional authorized signatory; and

(C) Other deposit designations that may be acceptable to the bank.

(2) Account documents that enable the depositor to indicate the depositor’s intent

of the ownership interest in any multiple-party deposit account may include any of the

following:

(A) The signature card;

(B) The deposit agreement;

(C) A certificate of deposit;

(D) A document confirming purchase of a certificate of deposit; or

(E) Other documents provided by the bank or deposit institution that

indicate the intent of the depositor.

Tenn. Code Ann. § 45-2-703(d). The Court of Appeals has stated that statutes “addressing

ownership designations for multiple-party deposit accounts evince [the General Assembly’s] quest for

clarity, certainty, and a reasonable amount of uniformity so as to reduce error and limit bank liability for

the payment of funds from such accounts.” In re Estate of Nelson, No. W2006-00030-COA-R3CV, 2007

WL 851265, at *11 (Tenn. Ct. App. Mar. 22, 2007).

- 10 -

When a deposit has been made or is hereafter made, in any bank, in the

names of two (2) or more persons, payable to either, or survivor, the

deposit, or any part of the deposit, or any interest or dividend on the

deposit, may be paid to either person, whether the others are living or

not . . . .

Tenn. Code Ann. § 45-2-703(a) (emphasis added). The presumption of equal ownership

is reinforced by another portion of section 45-2-703(a), which provides that funds in a

multiple-party account are “subject to assignment by, or the claim of any creditor of,

either depositor, as if the depositor were the sole owner of the funds,” but this statute

does not prevent another joint tenant from filing suit against a creditor to establish his or

her own rights in the funds. Id.14

Prior Tennessee decisions also describe joint tenants with right of survivorship as

owners of bank accounts with presumptively equal ownership interests in the account

funds. As the Court of Appeals has explained:

Where funds are on deposit in a joint account with right of

survivorship, we hold that during the lifetime of the joint tenants a

rebuttable presumption arises that the parties own the money on deposit

equally. As a consequence, upon a suit by one joint tenant against the

other, the parties may prove the ownership of the funds that went into the

account.

Even though a joint tenant may withdraw the entire fund, one who

does withdraw funds in excess of his moiety is liable to the other joint

tenant for the excess so withdrawn.

Leffew v. Mayes, 685 S.W.2d 288, 291 (Tenn. Ct. App. 1984) (citations omitted), perm.

app. denied (Tenn. Oct. 29, 1984), quoted with approval in Knight v. Lancaster, 988

S.W.2d 172, 174–75 (Tenn. Ct. App. 1998), perm. app. denied (Tenn. Feb. 1, 1999).

As the foregoing discussion illustrates, joint tenants with right of survivorship on a

multiple-party bank account in Tennessee are in a contractual relationship with the bank.

Each joint tenant is considered an owner of the account. Each joint tenant has an

unlimited right to withdraw from the account. Joint tenants are presumptively equal

owners of the funds in the account during their lifetimes. Evaluated against these legal

14

By contrast, persons described by the other statutory ownership designations or by any other

ownership not designated in the statute are expressly deemed not to be owners of multiple-party accounts.

Tenn. Code Ann. § 45-2-703(e)(2) (stating that an authorized signatory “is not an owner of the account”);

Tenn. Code Ann. § 45-2-703(e)(4) (stating that persons identified by any designation other than those

enumerated in the statute “shall be presumed to have power of attorney with respect to the account . . .

and not to be an owner of the account”).

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principles, the allegations of Mr. Haire’s complaint are sufficient to state claims for relief

against the Bank. Mr. Haire was an owner of the account in a contractual relationship

with the Bank, along with Mother. Contracts in Tennessee may not be modified except

with the consent of all the parties. Galbreath v. Harris, 811 S.W.2d 88, 92 (Tenn. Ct.

App. 1990) (citing V.L. Nicholson Co. v. Transcon Inv. & Fin. Ltd., 595 S.W.2d 474,

482 (Tenn. 1980)). Mr. Haire alleges that the Bank modified the contract without his

consent by processing new signature cards that changed the ownership of the account.

He also alleges that the Bank owed him a duty of care as a co-owner of the accounts and

breached its duty of care “by accepting the forged signature on the signature cards and

removing [Mr. Haire] as a co-owner” and that this breach constitutes negligence. Mr.

Haire’s allegations, taken as true for purposes of this appeal, are sufficient to state claims

for relief.

Nevertheless, the Bank asks us to affirm the decision of the Court of Appeals by

interpreting Tennessee Code Annotated section 45-2-703(a) as affording it protection

from liability in these circumstances. This statute provides banks with protection from

liability for paying funds from a multiple-party account to a person on the account,

stating, “the receipt or acquittance of the person so paid shall be a valid and sufficient

release and discharge to the bank for any payment so made.” Tenn. Code Ann. § 45-2-

703(a) (emphasis added). The Bank asserts that its removal of Mr. Haire’s name from

the accounts had the same practical effect as paying all the funds in the accounts to

Mother for which section 45-2-703(a) expressly provides it protection. In support of its

argument, the Bank cites decisions from other jurisdictions, including Arkansas,

Colorado, and Kentucky,15 that have described a joint tenant’s right to withdraw all funds

from a joint account as encompassing the right to remove the names of other joint tenants

from the account.

15

McEntire v. McEntire’s Estate, 590 S.W.2d 241 (Ark. 1979); Kacirek v. Mangan, 489 P.2d

342 (Colo. Ct. App. 1971); Bealert v. Mitchell, 585 S.W.2d 417 (Ky. 1979). The Bank also argues that

this Court essentially adopted the Arkansas approach for which it advocates in this appeal in our recent

decision In re Estate of Fletcher, 538 S.W.3d 444 (Tenn. 2017), by citing and adopting a portion of the

holding in McEntire. The Bank is mistaken. The only portion of McEntire adopted in Fletcher is its

holding that funds withdrawn from a tenancy by the entireties bank account cease to be part of the estate

by the entireties. 538 S.W.3d at 454 (“We adopt the Arkansas approach and hold that, once a husband or

wife withdraws funds from a joint bank account held as tenants by the entirety, the funds cease to be held

by the entirety.”). Fletcher did not involve the issue of whether a bank has an obligation to obtain the

consent of a joint tenant before removing the joint tenant’s name from a multiple-party account. In

Fletcher, the husband did not remove his wife’s name from the account. He simply withdrew most of the

funds from the account and placed them in a certificate of deposit in his name alone. Id. at 445. The

Bank’s reliance upon Fletcher to support its position in this appeal is misplaced.

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Mr. Haire, in response, agrees that section 45-2-703(a) would have provided the

Bank with protection from liability had it simply paid Mother all the funds in the account.

Mr. Haire emphasizes, however, that the Bank did not actually pay Mother all the funds

and that the statute simply does not provide the Bank with protection from liability for

removing his name from the account without his consent. Mr. Haire also relies on

decisions from New York and Maryland16 to support his position that section 45-2-703(a)

should not be interpreted as affording the Bank protection from liability in these

circumstances.17

We have carefully examined the decisions from other jurisdictions each side has

provided. Few of these decisions involve disputes between a joint tenant and a bank, and

the holdings in these cases are heavily dependent on the specific facts of the cases, as

well as the statutes and precedent of the jurisdictions in which the cases arose. Our task

in this appeal is not to determine, by reference to a survey of the law in other

jurisdictions, whether the Bank is protected from liability. Rather, our task is to

determine only whether Tennessee Code Annotated section 45-2-703 provides the Bank

with protection from liability in these circumstances. This task requires us to apply the

following familiar rules of statutory construction.

“Our primary objective when construing statutes is to determine and carry out

legislative intent without broadening or restricting statutes beyond their intended scope.”

State v. Gentry, 538 S.W.3d 413, 420 (Tenn. 2017) (citing State v. Pope, 427 S.W.3d

363, 368 (Tenn. 2013)). “Courts may neither alter or amend statutes nor substitute our

own policy judgments for those of the General Assembly.” Gentry, 538 S.W.3d at 426

(citing Britt v. Dyer’s Emp’t Agency, Inc., 396 S.W.3d 519, 523 (Tenn. 2013)). We

always begin with the words used in a statute, and when “the statutory language is clear

and unambiguous, we apply its plain meaning, understood in its normal and accepted

usage.” Thurmond v. Mid-Cumberland Infectious Disease Consultants, PLC, 433

S.W.3d 512, 517 (Tenn. 2014) (citing Baker v. State, 417 S.W.3d 428, 433 (Tenn.

2013)).

16

Wright v. Commercial & Sav. Bank, 464 A.2d 1080 (Md. 1983); Brown v. Bowery Sav. Bank,

415 N.E.2d 906 (N.Y. 1980).

17

As an alternative argument, Mr. Haire invites this Court to apply our recent decision in Bryant

to this case and hold that, when his name was removed from the bank account, the joint tenancy

terminated, and he and Mother held the funds as tenants in common. We decline Mr. Haire’s invitation.

The issue in this appeal is only whether the allegations of Mr. Haire’s complaint are sufficient to survive

the Bank’s motion to dismiss for failure to state a claim for relief, and nothing more than that. Bryant,

which involved real property, not joint tenancy with right of survivorship bank accounts, 522 S.W.3d at

399, has no bearing on the question presented by this appeal.

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Applying these guiding principles, we conclude that the language of section 45-2-

703(a) simply does not provide the Bank with protection from liability for removing a

joint tenant’s name from a multiple-party joint tenancy with right of survivorship

account. The Legislature is certainly free to provide such protection, but it has not done

so in section 45-2-703(a).18 We are not at liberty to read this protection from liability

into the statute. We agree with the Bank and Mr. Haire that the Bank would have had

protection from liability under Tennessee Code Annotated section 45-2-703(a) had it

“paid” Mother all of the funds in the accounts. In that instance, Mother’s “receipt or

acquittance” of the funds would have constituted “a valid and sufficient release and

discharge to the bank for any payment so made.” But the Bank made no payment to

Mother, and section 45-2-703(a) simply does not address the factual circumstances on

which Mr. Haire bases his claims against the Bank.

In declining to interpret the statute beyond its expressed terms, we adopt the

reasoning that the Court of Appeals of New York used when declining to interpret a

similar New York statute as providing a bank protection from liability in similar

circumstances:

Although the end result was the same in the sense that plaintiff was

deprived of her share of half of the funds in the account, this was

accomplished through a different method removing her name from the

account rather than withdrawing the money from the account. Because the

Legislature chose to insulate savings banks from liability when one joint

tenant wrongfully deprives another of an interest by one route, it does not

follow that courts should stretch the statute to confer immunity when the

tenant uses another avenue. This is especially true when the methods differ

in important respects. Immunity from liability where one joint tenant

withdraws more than his or her moiety from an account without the other

tenant’s permission relieves the bank of the burdensome responsibility of

monitoring each withdrawal from a joint account to ensure that one joint

tenant is not misappropriating another’s funds. Obtaining the acquiescence

of a joint tenant before removing his or her name from an account,

however, poses a much lesser burden. Extending the statute to absolve

18

We note that three states—California, Georgia, and South Carolina—have enacted statutes

delineating how modifications to ownership of multiple-party accounts may be accomplished. Cal. Prob.

Code § 5303(b)(1)–(3) (West, Westlaw through Ch. 2 of 2019 Reg. Sess.) (requiring all parties with a

right of withdrawal to give consent before a financial institution can modify a multiple-party account);

Ga. Code Ann. § 7-1-814 (West, Westlaw Act 1 of the 2019 legislative session) (requiring consent from

all parties before the terms of a multiple-party account can be changed); S.C. Code Ann. § 34-30-

1630(A)(3) (West, Westlaw through 2018 Act No. 292) (noting that all tenants to a joint tenancy account

must agree on which of them has the right to remove a joint tenant from the account).

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savings banks from liability for failing to obtain such acquiescence is

therefore an action more appropriately left to the Legislature.

Brown, 415 N.E.2d at 908–09.

Finally, we also reject the Bank’s alternative argument that the trial court’s

decision granting its motion to dismiss should be affirmed on the separate ground that

Mr. Haire has failed to allege damages. According to the Bank, because Mr. Haire has

not alleged that he contributed any funds to the accounts, Mr. Haire has failed to allege

grounds to establish that he could have recovered against Mother “even if he had known

of and disputed the changes in the [a]ccounts.” The Bank argues, therefore, that because

Mr. Haire has failed to allege a basis for recovery against Mother during her lifetime, he

has failed to allege a basis for recovery against the Bank for removing his name from the

accounts to which he made no contributions. The Bank’s argument fails to recognize,

however, that Mr. Haire’s status as a joint tenant with right of survivorship on the

accounts with Mother gave rise to a rebuttable presumption that Mr. Haire was an equal

owner of the funds in the accounts. The Bank may ultimately be able to overcome this

rebuttable presumption and prevail on its claim that Mr. Haire cannot prove damages, but

at this preliminary stage of the litigation, we afford Mr. Haire the benefit of the rebuttable

presumption in evaluating whether his complaint is sufficient to survive the Bank’s

motion to dismiss for failure to state a claim. In this appeal, we assess only the

sufficiency of Mr. Haire’s complaint, not the merits of his alleged claims.

IV. Conclusion

For the reasons stated herein, we reverse the Court of Appeals’ decision upholding

the trial court’s judgment granting the Bank’s motion to dismiss for failure to state a

claim upon which relief may be granted. We remand this matter to the trial court for

further proceedings consistent with this decision. Costs of this appeal are taxed to the

Bank for which execution may, if necessary, issue.

_________________________________

CORNELIA A. CLARK, JUSTICE

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