                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                        March 7, 2012 Session

   G. PERRY GUESS, EXECUTOR OF THE ESTATE OF C. CHARLTON HOWARD
                    v. ELIZABETH G. FINLAY

                   Appeal from the Chancery Court for Hamilton County
                     No. 08-0884    Jeffrey M. Atherton, Chancellor


                   No. E2011-00947-COA-R3-CV-FILED-APRIL 16, 2012


This case involves1 a dispute between G. Perry Guess (“the Executor”), Executor of the
Estate of C. Charlton Howard (“the Deceased”), and the Executor’s sister, Elizabeth G.
Finlay (“the Survivor”), regarding the ownership of funds, following the death of the
Deceased, in several bank accounts and certificates of deposit. The trial court awarded the
bank accounts to the Executor and the CDs to the Survivor. The Executor claims he is also
entitled to the CDs while the Survivor argues that she should have received all of the funds.
We reverse that portion of the trial court’s judgment awarding the bank accounts to the
Executor. We modify the judgment in favor of the Survivor so as to award to her all of the
bank accounts as well as the CDs.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
        Reversed in Part; the Unreversed Part of the Judgment is Modified and,
                as Such, is Affirmed; Case Remanded with Instructions

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.

C. George Caudle, Chattanooga, Tennessee, for the appellant, G. Perry Guess.

Benjamin L. McGowan, Chattanooga, Tennessee, for the appellee, Elizabeth G. Finlay.

        1
          There were two lawsuits in the trial court pertaining to the Deceased’s estate. The Executor sued
to recover, for the estate, funds in the disputed bank accounts and the CDs (No. 08-0884), and the Survivor
filed a will contest (No. 09-0022). The cases were consolidated and tried in separate phases on consecutive
days. At the close of the first phase, the trial court upheld the validity of the Deceased’s will. Trial then
proceeded regarding the accounts and the CDs. The Survivor did not appeal from the adverse judgment in
the will contest case. As a result, this appeal only involves issues related to the trial court’s determination
of ownership of the accounts and the CDs in No. 08-0884.
                                                OPINION

                                                      I.

        The Deceased died on September 25, 2007. He was survived by many nieces and
nephews, including the Executor and the Survivor. The Survivor had long been close to the
Deceased. In his later years, the Deceased, whose eyesight was increasingly poor, primarily
relied upon the Survivor to transport him and assist him with his medical appointments and
other personal matters. In August 2007, a little more than a month before the Deceased died,
he executed a new will replacing one executed in July 2005. Under the new will, the
Executor was substituted for the Survivor as executor of his estate. The Deceased also
bequeathed to the Executor the 30% of the residuary estate that previously had been willed
to the Survivor. By all accounts, the change was prompted by a disagreement between the
Deceased and the Survivor over whether the Deceased should be moved to an assisted living
facility.

       At the time of his death, the Deceased held several joint bank accounts and CDs with
the Survivor, all with SunTrust Bank, which assets totaled approximately $242,000. More
specifically, there were five items – a checking account, a money market account, and three
CDs (collectively “the SunTrust accounts”). The bulk of the funds – some $185,000 – were
invested in the CDs. The Survivor testified that, following the Deceased’s death, she
withdrew the balance of the funds in the SunTrust accounts on the advice of her attorney.

       At trial, it was undisputed that the Deceased was the source of all of the funds in the
SunTrust accounts. On some of the accounts, the Survivor’s name had been on the accounts
from their inception, while on others her name was added later. The Survivor did not
question the Deceased’s decision and, although she was aware of the joint accounts, the only
withdrawals she made during the Deceased’s life were for his use or benefit. Much of the
proof addressed the establishment of the joint accounts. The proof showed that, in 2005, on
the same day the Deceased gave the Survivor a power of attorney and made her his executor,
they went to the bank and the Deceased added the Survivor’s name on his existing checking
account. In April of the following year, the Deceased and the Survivor went to the bank and
the Deceased deposited $107,869.28 in a new money market account in both of their names.
Both accounts were titled in the names of “MR C. CHARLTON HOWARD OR MRS
ELIZABETH FINLAY.” (Capitalization2 in original; there is no period after MR and MRS
in the original.) For each of these two accounts, the bank provided a “Personal Account

        2
          Both names are in capital letters but the Survivor’s name is in a smaller font. There is no testimony
or other evidence explaining the difference in font size. We conclude that the font difference is not material
to the resolution of the issues in this case.

                                                     -2-
Signature Card”3 which was signed by both the Deceased and the Survivor. Below the
signature lines, the following statement appears:

                It is agreed that all transactions between the Bank and the above
                signed shall be governed by the rules and regulations for this
                account and the above signed hereby acknowledge(s) receipt of
                such rules and regulations . . . . ”

       At the time the Deceased opened the money market account, he also purchased a
$100,000 CD in his name and the Survivor’s name. Later that month, on two separate dates,
the Deceased returned to the bank and purchased two more CDs, again in both of their
names, for $50,000 and $39,936.76 respectively. For each CD, the bank issued a “Time
Deposit Receipt” that expressly stated that “the above named acknowledges receipt of the
Rules and Regulations for Deposit Accounts and agrees to be bound by the same.”

        The various account transactions mainly were handled by Mr. Charles Young, a
SunTrust branch manager, as evidenced by his name or signature on some of the account
documents. At trial, Mr. Young recalled that the Deceased and the Survivor came to the bank
when the money market account was opened and, at another time, Mr. Young personally took
some bonds to the Deceased’s home for him to sign in connection with the purchase of one
of the CDs. Otherwise, Mr. Young recalled few details of the transactions. His testimony
was generally limited to explaining the procedure he customarily employed in meeting with
clients to assist them in opening new accounts and in generating the documents related to
those accounts.

       Mr. Young testified that, based upon his usual practice, he would have met with the
Deceased to ascertain what his wishes were with respect to his funds. Then, the various
types of accounts SunTrust offers would be explained. Once the Deceased had decided on
a specific type of account, Mr. Young would enter the relevant information into a computer
to generate the necessary account documents. He explained that the bank did not utilize pre-
printed form documents to indicate the type of account, but generated the appropriate
documents according to the type of account selected by the customer. Mr. Young testified
it was his standard practice to provide the customer with the bank’s rules and regulations
when a deposit account was opened. He noted that the rules and regulations were also
included in the new account kit provided when a CD is purchased. Mr. Young could think
of no reason why he would not have followed his usual practice in his dealings with the
Deceased, including the purchase of the three CDs. Mr. Young testified that SunTrust treats


        3
         While the document is referred to as a “Card,” it is actually on 8 ½ by 11 inch paper with a good
deal of printed material.

                                                   -3-
all joint accounts as being with right of survivorship. He explained that other types of
accounts are available if a person wants to allow another individual, such as an “authorized
signer,” to act as the agent of the former with respect to an account but did not want to
establish a right of survivorship. Mr. Young testified that the Deceased appeared to
understand what he was doing in opening the accounts; he said he had no reason to believe
the Deceased was being influenced by the Survivor in the transactions or that the Deceased
was unaware that the accounts being opened by him were with right of survivorship.

       The proof further indicates that, even after the Deceased changed his will, he never
took any action or stated any plan to remove the Survivor’s name from the SunTrust
accounts. In fact, there was testimony indicating that the opposite was true. The Deceased’s
caregiver testified that she asked the Deceased whether the Deceased also planned to “take
[the Survivor] off” the accounts, and the Deceased answered to the effect, “No. I took her
off the will, because I’m mad at her. The [SunTrust] money is hers because she was good
to me.”

       The Executor sued the Survivor to recover, on behalf of the Estate, all of the
withdrawn funds. The Executor essentially alleged that the Survivor wrongfully withdrew
and converted to her own use funds that rightly belonged to the Deceased’s estate. The
Survivor, on the other hand, maintained that the money came to her as the surviving owner
of the SunTrust accounts.

       In its bench ruling, the court made the following pertinent findings and conclusions:

              [C]learly [the Deceased’s] intent at the time that he entered into
              these accounts is the simple focus of our hearing today.

              [I]n all candor, based upon the testimony of [the Deceased’s
              caretaker], and even that of [the Executor], it was the
              [D]eceased’s understanding that the money in the bank was his
              alone to give.

                                         *    *    *

              So it takes us back to the time the accounts were opened. We
              had conversation about [Tenn. Code Ann. §] 45-2-703. But
              clearly the account[s], the bank is not doing what it is obligated
              to do under the statute and that [is] utilize[] account documents
              that enable the depositor in the state of Tennessee to designate
              ownership. If it can provide opportunities to depositors in other

                                             -4-
                states,4 why can they not reprint their form to provide that same
                opportunity to their depositors in . . . Tennessee to designate the
                type of account? In the Court’s opinion, that is exactly what is
                required under the statute.

                In reviewing this case, however, the Court is also stuck with the
                Roberts v. Roberts decision. It states unequivocally that 45-2-
                703 does not apply to certificates of deposit. So the Court has
                to go back to, well, what was the status of the account when
                opened and what type of accounts when opened?

                The Court is of the opinion that [the Executor] has carried the
                burden of proof in terms of indicating the lack of opportunity to
                designate. The Court is not of the opinion that [the Survivor]
                has carried . . . [her] obligation to present rebuttal by clear and
                convincing evidence.

                That being said, therefore, the checking account, money market
                accounts that are applied to the case belong[ ] to the estate.
                However, as stated in Roberts . . . , the certificates of deposit do
                not.

(Underlining in original; footnote added.)

       Consistent with its opinion, the trial court awarded judgment in favor of the
Deceased’s estate in the amount of $57,576.40 – the amount withdrawn from the checking
and money market accounts – plus prejudgment interest of $18,914.04 and discretionary
costs. In response to the parties’ post-judgment motions, the trial court made the following
additional findings of fact and conclusions of law:



        4
           The trial court is talking about the following. At the bottom of the two Personal Account Signature
Cards signed by the Deceased and the Survivor with respect to the checking and money market accounts,
there is the following underlined statement: “For residents of Arkansas, Maryland, North Carolina, Virginia,
and Washington, D.C. only.” (Emphasis added.) The verbage that follows the statement explains the
difference between “with survivorship” and “without survivorship.” It refers the depositor to “the Rules and
Regulations For Deposit Accounts for additional information.” Below this there are two boxes – one for
“with survivorship” and one for “without survivorship.” The depositor is directed to “[c]hoose [o]ne.”
Neither box is checked in this case. There is no suggestion in the record that Tennessee law – unlike the
apparent law of the identified four states and the District of Columbia – requires that one of these boxes be
selected by the depositor.

                                                     -5-
               The SunTrust documents relating to the opening of accounts do
               not comply with T.C.A. § 45-2-703 (d) as they did not provide
               the depositor, in this case [the Deceased], the opportunity to
               designate the depositor’s intent concerning the ownership
               interest in a multi-party account.

               [I]t was the intent of the [D]eceased, at the time of the creation
               of the accounts and at all relevant times thereafter, that although
               [the Survivor] may have access to and use of his accounts during
               his lifetime, all of the contents of all of his accounts were to be
               considered his own, without the creation of, conveyance of or
               establishment of a right of survivorship interest in the account
               in or to [the Survivor].

               [I]rrespective of the lack of compliance with T.C.A. § 45-2-
               703(d) by the bank, the presumption provided by . . . § 45-2-
               703(e)(4) applies to the checking account and money market
               accounts, such that [the Survivor] would be presumed to have
               only a power of attorney with respect to those accounts. The
               presumption was not overcome by clear and convincing
               evidence, not only due to the inadequacy of the bank documents
               themselves, but further, the proven intent of the [D]eceased and
               the lack of proof of conveyance of or explanation of the bank’s
               Rules and Regulations (and their creation by default of joint
               accounts with right of survivorship) provided by the bank
               employee, Charles Young, to the [D]eceased, regardless of the
               [D]eceased’s known vision problems.

               The impact of Roberts v. Roberts, 827 S.W.2d 788, 796 (Tenn.
               App. 1991) on this case is its holding that T.C.A. § 45-2-703
               does not apply to certificates of deposit.5 Therefore, the
               presumptions provided by § 45-2-703(e)(4) do not apply to
               certificates of deposit. Without the application of . . . § 45-2-
               703, Roberts dictates that the language in the bank’s
               documentation, regardless of the depositor’s intent, controls. In
               this case, SunTrust’s “Rules and Regulations” state that a joint
               account is deemed a joint account with survivorship.


       5
          “Regardless, apparently, of the language contained in § 45-2-703(c) which states ‘including a
certificate of deposit.’ ”

                                                 -6-
                                          *    *    *

              [I]n the event the Court is in error concerning its interpretation
              of Roberts and/or the application of T.C.A. § 45-2-703 to this
              case, the evidence would warrant the awarding to the Estate not
              only the money market and checking accounts, but also the
              certificates of deposit. Specifically, should Lowry v. Lowry, 541
              S.W.2d 128 (Tenn. 1976) . . . control, the apparent presumption
              that each party has a right of survivorship in the joint accounts
              was rebutted, clearly and convincingly, by the Estate.

                                          *    *    *

              Alternatively, should the presumption provided by T.C.A. § 45-
              2-703(e)(4) . . . control, [the Survivor] did not carry her burden
              . . . to show that a right of survivorship was created, rather than
              merely a power of attorney with respect to any of the accounts,
              including the certificates of deposit.

(Footnote in original).

      The Executor appeals. Both parties raise issues regarding the disposition of the
SunTrust accounts.

                                              II.

      The Executor presents a single issue for our review. As stated in his brief, it is as
follows:

              Whether the trial court erred when it held that the provisions of
              Tenn. Code Ann. § 45-2-703 do not apply to certificates of
              deposit generally and denied the Executor’s claim for the
              recovery of the funds represented by three certificates of deposit
              with SunTrust Bank.

The Survivor raises the following additional issues taken verbatim from her brief:

              Did the trial court err by disregarding this Court’s controlling
              precedent of Estate of Disa True v. Padgett and ruling, despite
              the identical SunTrust account language, the contracts at issue

                                              -7-
              did not satisfy Tenn. Code Ann. § 45-2-703 and were not “clear
              and unambiguous” notwithstanding this Court’s explicit rulings
              to the contrary?

              Did the trial court err in ruling, in its Order of additional
              findings of facts and rulings of law, that even if mistaken
              regarding Roberts and the application of Tenn. Code Ann. § 45-
              2-703, that clear and convincing evidence was presented by the
              Estate to rebut the presumptions imposed by Tenn. Code Ann.
              § 45-2-703 and Lowry v. Lowry, of survivorship rights in the
              joint accounts?

                                             III.

       In this non-jury case, our review is de novo upon the record of the proceedings below;
but the record comes to us with a presumption of correctness as to the trial court’s factual
findings that we must honor “unless the preponderance of the evidence is otherwise.” Tenn.
R. App. P. 13(d). The trial court’s conclusions of law, however, are accorded no such
presumption. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley v.
Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).

                                             IV.

      The parties each challenge various aspects of the trial court’s ruling. The basic issue,
however, is simply this: Who owns the SunTrust accounts following the death of the
Deceased? The pivotal question becomes whether, under applicable law, the SunTrust
accounts were with “right of survivorship.” Our inquiry is controlled by Tenn. Code Ann.
§ 45-2-703 (2007). That section governs deposits to bank accounts and also CDs in the
names of two or more persons. It provides, in pertinent part, as follows:

              (a) 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; and 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.

                                         *    *     *



                                             -8-
(c) As used in subsections (c)-(f), “multiple-party deposit
account” means a deposit account, including a certificate of
deposit, established in the names of, payable to, or in form
subject to withdrawal by two (2) or more natural persons, or any
of them, including, but not limited to, an account of the type
described in subsection (a).

(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.

(e) Accounts described in subsection (c) shall establish the
following interests:




                                -9-
              (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;

                                          *    *     *

              (4) In the absence of any specific designation in accordance with
              subsection (d), property held under the title, tenancy by the
              entireties, carries a right of survivorship; property held under the
              title, joint tenancy, carries no right of survivorship unless a
              contrary intention is expressly stated. Any other person to whose
              order the accounts or certificate of deposit is subject shall be
              presumed to have power of attorney with respect to the account
              or certificate of deposit and not to be an owner of the account or
              certificate of deposit. The presumptions may be rebutted by
              clear and convincing evidence presented in the course of legal
              or equitable proceedings.

              (f) Without incurring any liability, any bank may, but shall not
              be required to, provide to depositors disclosures in form similar
              to the following:

              (1) JOINT TENANTS WITH RIGHT OF SURVIVORSHIP.
              This designation means that the deposit account or certificate of
              deposit shall become the property of each owner as joint tenants,
              and that the survivor is entitled to all moneys in the account or
              represented by the certificate even if the first person to die had
              a will specifically directing disposition to someone else. The
              bank may release all moneys in the account or represented by
              the certificate to, or honor checks or orders drawn by, or
              withdrawal requests from, the survivor upon the death of any
              joint tenant. . . .

(Capitalization in original.)




                                              -10-
       Also relevant to our review are SunTrust Bank’s “Rules and Regulations for Deposit
Accounts” applicable to the SunTrust accounts in dispute.6 Pertinent portions include the
following:

                All Accounts are subject to the signature card or authorizing
                documents and any additional agreements executed by the
                Depositor and the Bank and these rules and regulations….

                                                *    *     *

                “Joint Account”, also referred to as “Joint Account with
                Survivorship”, is an Account which is owned by two or more
                individuals as joint tenants with right of survivorship and not as
                “tenants in common” or “tenants by the entirety.” Upon the
                death of one of the joint owners, the Account will belong to the
                surviving joint owner or joint owners….

                                                *    *     *

                You are not permitted to change the account ownership to
                anything other than a “joint tenants with right of survivorship,”
                including “tenants by the entirety” or “tenants in common”
                without the Bank’s approval. We will treat all Joint Accounts,
                unless otherwise indicated on the Bank’s records, as “joint
                tenants with right of survivorship” for all purposes, including,
                but not limited to writs, levies, setoffs, and determination of
                ownership upon death.

(Bold print in original.)

      At trial, the Executor argued that the documents evidencing the establishment of the
accounts were not in compliance with the statute and, therefore, he reasoned, that the
Deceased’s intent regarding ownership of the accounts could not be ascertained from those
documents. According to the Executor, it was the Survivor’s burden to show that the
Decedent clearly intended for her to receive the account funds at his death. Counsel argued:


        6
         At the time the Deceased added the Survivor’s name to his checking account, the 2005 version of
the Rules and Regulations was in effect. For ease of reference and the sake of brevity, we quote only from
the 2006 Rules and Regulations in effect at the time of the remaining transactions, which, as relevant to our
review, contain essentially identical provisions to those in existence in 2005.

                                                    -11-
              Your Honor, 45-2-803 requires SunTrust to provide account
              documents that give the depositor the option to figure whether
              a multi-party deposit account is to be held as a joint tenant with
              right of survivorship or not. And specific language must be
              used, not some ambiguous language.

              Ambiguous language or lack thereof simply doesn’t comply
              with the statute. The purpose of this statute was to promote
              clarity that these SunTrust documents complied with the statute.
              If not only had the documents, but the way they had ultimately
              been utilized in connection with these accounts, was done in a
              manner that could provide to this Court a clear understanding of
              what [the Deceased’s] intent was, then we wouldn’t be here.
              But they don’t. And the manner in which they were utilized
              certainly doesn’t provide to the Court the sort of clarity that 45-
              2-703 demands.

        In ordering that the Executor should recover the funds in the money market and
checking accounts, the trial court agreed with the Executor’s position. As set out above, the
court found that the bank’s documents failed to comply with the requirements of Tenn. Code
Ann. § 45-2-703. In particular, the court found that the documents did not provide the
Deceased the opportunity to “designate ownership interest” in the accounts at the time of
their creation. See Tenn. Code Ann. § 45-2-703 (d)(1). Having concluded that there was no
designation of the Deceased’s intent, the court applied the statutory presumption in
subsection (e)(4) of the statute to find that the Survivor held nothing more than power of
attorney authority over the accounts and that she failed to present sufficient evidence to
overcome this presumption. As to the CDs, the court expressly found that it was bound by
prior case law and, accordingly, held that the statute’s provisions do not apply to those
interests.

        As would be expected, the Executor only challenges the trial court’s determination –
that Section 45-2-703 does not apply to certificates of deposit, and that, absent the
application of the statute, SunTrust Bank’s documentation controls the ownership of the
certificates “regardless of the depositor’s intent.” The gist of the Executor’s argument is that
the statute does apply to CDs and, as a result, the analysis employed as to the other accounts
also leads to the conclusion that the CDs belong to the estate. We agree with the Executor
that the CDs are covered by the language of Tenn. Code Ann. § 45-2-703. We disagree with
his assertion that the application of that statute supports a holding that the CDs passed to him
as the Deceased’s personal representative.



                                              -12-
       The Executor correctly notes that the purpose behind various amendments to Section
45-2-703 was to bring “clarity, certainty, and a reasonable amount of uniformity” to matters
of “the existence and nature of joint tenancies in bank accounts. . . .” In re Estate of Paul
Harris Nelson, No. W2006-00030-COA-R3-CV, 2007 WL 851265 at *9 (Tenn. Ct. App.
M.S., filed Mar. 22, 2007). On the other hand, the Survivor contends that the SunTrust
accounts were conclusively created with a right of survivorship. The Survivor relies heavily
upon this Court’s decision in Estate of True v. Padgett, No. E2005-01584-COA-R3-CV,
2006 WL 2818239 (Tenn. Ct. App. E.S., filed July 17, 2006).

        In True, the estate of the decedent, Mrs. True, sued the Padgetts for the return of
monies the Padgetts withdrew from a checking account to which Mrs. True had added their
names. The account was at SunTrust bank and was opened with a signature card and
incorporated rules and regulations that are virtually identical to those challenged in the
present case. The evidence showed that the account signature card was brought to Mrs. True
at the nursing home where she then resided, it was signed and witnessed, and returned to the
bank; there was no direct evidence that Mrs. True ever received a copy of the rules and
regulations for the account. The trial court dismissed the estate’s case based on its
conclusion that the account created was joint with right of survivorship. This Court affirmed.
We quote extensively from our opinion:

              In its brief on appeal, the Estate argues, in part, that there is no
              “expressed contract in this case” because “the signature card
              does not specify at all what kind of account it is” and “[t]he
              rules and regulations do not in any way specify the type of
              account was (sic) created by Mrs. True and the Padgetts.”
              (emphasis deleted). Respectfully, the Estate is mistaken.

              Ms. True and the Padgetts executed a signature card for the
              Account that clearly and unambiguously states that “all
              transactions between the Bank and the above signed shall be
              governed by the rules and regulations for this account and the
              above signed hereby acknowledge(s) receipt of such rules and
              regulations….” The Rules and Regs clearly and unambiguously
              provide that SunTrust Bank “will treat all Joint Accounts as
              ‘joint tenants with right of survivorship’ for all purposes,
              including, but not limited to writs, levies, setoffs, and
              determination of ownership upon death.” Further, the Rules and
              Regs clearly and unambiguously provide that SunTrust Bank
              will “not [be] bound by an attempt by you to change the account



                                             -13-
ownership to anything other than a ‘joint tenants with right of
survivorship’. . . .”

The provisions of the contract created by the signature card and
the Rules and Regs are clear and unambiguous, and we must
give effect to the parties’ intent. It is not the role of this Court
“to make a different contract than that executed by the parties.”
“In the absence of fraud or mistake, a contract must be
interpreted and enforced as written even though it contains terms
which may be thought to be harsh or unjust.” The record on
appeal reveals no fraud or mistake and, therefore, we must
interpret and enforce the contract as written.

SunTrust Bank complied with Tenn. Code Ann. § 45-2-703 by
providing a signature card and a deposit agreement, the Rules
and Regs, that enabled the depositor, Ms. True, to designate
ownership interest in the Account when Ms. True changed the
Account from an individual account to a multiple-party deposit
account, a joint account. Under Tenn. Code Ann. § 45-2-703
(e)(1) the designation of the Account as joint tenants with right
of survivorship “shall be conclusive evidence in any action or
proceeding of the intentions of all named that title vests in the
survivor.” Tenn. Code Ann. § 45-2-703 (e)(1) (2000). We note
that our holding is supported by the uncontradicted testimony of
Ms. Garren that Ms. Garren “pulled out the rules and regs…"
when explaining to Ms. True that if Ms. True added the
Padgetts’ names, that “they would have equal ownership of this
account….” Given this, we hold that the Trial Court correctly
held that the Account was owned by Ms. True, William Bryant
Padgett, and Wende Padgett as joint tenants with right of
survivorship.

Our resolution of the Estate’s first issue pretermits the necessity
of considering its second issue as the Estate was attempting to
use . . . excluded evidence to prove that Ms. True did not have
the intent to create a joint account with right of survivorship. As
discussed fully above, the conclusive evidence establishes that
Ms. True intended to create and did so create an account as joint
tenants with right of survivorship.



                               -14-
Id. at * 5-6 (internal citations omitted).

       The Executor, we think, tangentially attempted to cut off any reliance on True by
requesting the trial court to further find as follows:

              [T]he Executor moves the Court, . . . to make an additional
              finding of fact . . . that any provision in the SunTrust Bank
              Rules and Regulations that purports to treat the accounts held by
              [the Decedent] as joint accounts with right of survivorship is
              unenforceable due to a lack of mutual consent and is otherwise
              invalid.

Contrary to the Executor’s position and much of the trial court’s reasoning, the statute, as
interpreted by us in True, compels a holding in the present case that the documentary
evidence before us is “conclusive evidence . . . of the intentions of all named [i.e., the
Deceased and the Survivor] that title vests in the survivor.” See Tenn. Code Ann. § 45-2-
703(e)(1).

       Tenn. Code Ann. § 45-2-703(d)(1) requires banks to “utilize account documents that
enable the depositor to designate ownership interest” in any joint account. We observed in
Nelson that,

              [a]s we read this provision, a ‘designation’ on an account
              document must include ‘joint tenants with the right of
              survivorship’ or, as noted in the statute, another substantially
              similar expression . . . to specify that type of ownership interest.
              If it does not, then subsection (e)(4), which governs accounts
              lacking designations, will control.

Nelson, 2007 WL 851265 at *11. The statute expressly provides that “[a]ccount documents
that enable the depositor to indicate the depositor’s intent of the ownership interest in any
multiple-party deposit account” include signature cards, deposit agreements, and CDs, the
very documents utilized in the present case. Tenn. Code Ann. § 45-2-703(d)(2)(A)-(C).
Pursuant to the incorporated Rules and Regulations governing the SunTrust accounts, a
“multiple-party deposit account” such as the ones in this case carries with it a right of
survivorship and such designation conclusively establishes that this was the Deceased’s
intent. In our view, this ends our inquiry regarding ownership of all of the SunTrust
accounts. There is much testimony in the record regarding the Deceased’s intent, or lack
thereof, to establish a right of survivorship in the SunTrust accounts. This evidence is
immaterial to our analysis of the application of the statute to the SunTrust accounts. This is

                                             -15-
because, under the clear language of the statute, the Deceased’s intent to establish the
SunTrust accounts with right of survivorship is conclusively established.

       The trial court faults SunTrust for failing to “provide . . . [the Deceased], the
opportunity to designate the depositor’s intent concerning the ownership interest in a multi-
party account.” With all due respect to the trial court, we disagree with its characterization
of what happened in this case. We find that the bank acted in a way that did afford the
Deceased this opportunity.

       The trial court reads the statute – and particularly subsection (d)(1) – as requiring a
bank to provide a form on which a depositor can expressly designate by a signature the type
of account that he or she wishes to open. Since the “Personal Account Signature Card” and
the “Time Deposit Receipt” in this case do not have a place on which a depositor can indicate
the type of account he or she is opening, the trial court reasoned that the bank failed to
comply with the edict of the statute. We believe the trial court has read the statute too
narrowly.

        The Deceased signed a document – the “Personal Account Signature Card” – in which
he acknowledged “receipt of [SunTrust’s] rules and regulations.” Those rules and
regulations advised him that if he opened an account with another person – as he did – that
SunTrust would “treat [it] unless otherwise indicated on the Bank’s records, as ‘joint tenants
with right of survivorship’ for all purposes, including, . . . determination of ownership upon
death.” (Emphasis added.) We hold that, in the absence of fraud, the providing of these
rules and regulations to the Deceased, and his signing of the signature card along with
another, i.e., the Survivor, to set up the SunTrust accounts with language acknowledging
receipt of the bank’s rules and regulations, shows that SunTrust unambiguously advised the
Deceased what his options were in opening a “multiple-party deposit account” or in
amending such an account. See Tenn. Code Ann. § 45-2-703(d)(1). When he failed to
designate a contrary intent on the bank’s records, he became subject to the “default” position,
i.e., the establishment of a joint account with right of survivorship. This brings into play
Tenn. Code Ann. § 45-2-703(e)(1) which, for emphasis, we quote again:

              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.

(Emphasis added.) The same analysis applies to the CDs and the “Time Deposit Receipt”
furnished by the bank as a part of the transactions involving the CDs. In the absence of fraud,
there is nothing more that needs to be said in resolving this aspect of the appeal. Under the

                                             -16-
record before us, there is conclusive evidence that the Deceased intended to open a joint
account with right of survivorship.

        Given our holding, we are required to address language in Roberts v. Roberts, 827
S.W.2d 788, 796 (Tenn. App. 1991), providing that “[t]he statute does not apply to
certificates of deposit which require no signature card and provide no withdrawal until
maturity. . . .” Understandably, the trial court was reluctant to rule in direct opposition to a
published decision of this Court. Following Roberts, it ruled that the CDs were not to be
analyzed under Section 45-2-703 despite statutory language indicating otherwise.

       Simply put, we think that, on this point, Roberts was wrongly decided. In the present
case, we decline to ignore the plain language of the statute extending its application to
“multiple-party deposit account[s]” expressly including “a certificate of deposit, established
in the names of, payable to, or in form subject to withdrawal by two (2) or more natural
persons. . . .” Following the language of Section 45-2-703, we conclude that the CDs were
owned by the Deceased and the Survivor with right of survivorship.

                                              V.

       The Survivor also challenges the trial court’s additional finding that:

              The impact of Roberts v. Roberts, 827 S.W.2d 788, 796 (Tenn.
              App. 1991) on this case is its holding that T.C.A. § 45-2-703
              does not apply to certificates of deposit. Therefore, the
              presumptions provided by § 45-2-703(e)(4) do not apply to
              certificates of deposit. Without the application of . . . § 45-2-
              703, Roberts dictates that the language in the bank’s
              documentation, regardless of the depositor’s intent, controls.

(Footnote omitted.) As discussed, we have already determined that Section 45-2-703 does
apply to the CDs and that the bank’s documents utilized to amend or open the SunTrust
accounts properly designated them as being with right of survivorship. Upon the death of
the Deceased, the Survivor, as the survivor of the two, by operation of law, became the sole
owner of the CDs.

                                              VI.

       In the concluding paragraph of her brief, the Survivor requests an order directing that
the court costs and discretionary fees imposed against her by the trial court be remitted to her
by the Executor. Our decision, favorable to the Survivor on all points, makes her the

                                              -17-
prevailing party. On remand, the trial court is directed to enter an order taxing court costs
at the trial court level to the Executor and awarding such discretionary costs to the Survivor
as the trial court, in the exercise of its discretion, determines to be appropriate.

                                            VII.

       That portion of the trial court’s judgment awarding the Executor the bank accounts
is reversed. We modify the judgment in favor of the Survivor to award her all of the bank
accounts as well as the CDs. As modified, the judgment in favor of the Survivor is affirmed.
Costs on appeal are taxed to the appellant, G. Perry Guess, Executor of the Estate of C.
Charlton Howard. This case is remanded to the trial court with instructions.




                                                    _______________________________
                                                    CHARLES D. SUSANO, JR., JUDGE




                                             -18-
