                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                       November 29, 2005 Session

    MARILYN STAVELY v. AMSOUTH BANK (MILAN, TN) and MARY
                        JANE MILLER

                        An Appeal from the Circuit Court for Gibson County
                            No. 8037   Clayburn Peeples, Circuit Judge



                     No. W2005-01354-COA-R3-CV - Filed December 29, 2005


This is an action to recover damages for the alleged improper disposition of funds in a
conservatorship account, conspiracy, and false advertising. The plaintiff’s mother was placed under
a conservatorship, and the conservator opened an account at the defendant bank for the
conservatorship. After the plaintiff’s mother died, the account was settled and the accounting was
approved by the Gibson County Chancery Court. The plaintiff sought to recover funds from the
account, but was informed that the account was settled. The plaintiff sued the bank and its branch
manager for conspiracy, false advertising, and disappearing funds. The trial court granted the
defendants’ motion to dismiss. We affirm.

               Tenn. R. App. 3 Appeal; Judgment of the Circuit Court is Affirmed

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which ALAN E. HIGHERS, J., and DAVID
R. FARMER , J., joined.

Marilyn Stavely, Milan, Tennessee, pro se.

Jonathan O. Steen, Jackson, Tennessee, for appellees AmSouth Bank and Mary Jane Miller.

                                       MEMORANDUM OPINION1

       Plaintiff/Appellant Marilyn Stavely (“Stavely”) is the daughter of Ruth Duggin. In February
1961, Ruth Duggin was placed under a conservatorship by the County Court of Gibson County.
William Duggin, Ruth Duggin’s brother and Stavely’s uncle, was appointed as Ruth Duggin’s



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           This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the
actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. W hen a case
is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and
shall not be cited or relied on for any reason in any unrelated case.
conservator. He opened a conservatorship account at Defendant/Appellee AmSouth Bank (“Bank”)
on April 8, 1970, by depositing a $1,091.00 check.

         Ruth Duggin died on November 6, 2001, and William Duggin filed his final report of the
conservatorship with the Gibson County Chancery Court. On January 11, 2002, the Chancery Court
issued an order to close the conservatorship. Shortly thereafter, the Bank paid Stavely $1,100 and
a local florist $277.31 for funeral flowers. After these checks cleared, the account had a balance of
$23.64. In the subsequent months, the $23.64 balance was depleted to a negative balance due to
monthly service charges on the account. On August 27, 2002, after several months with a negative
balance, the Bank closed the account.

        On September 30, 2004, Stavely filed a pro se complaint in the Gibson County Circuit Court
against the Bank and the Bank’s branch manager, Defendant/Appellee Mary Jane Miller (“Miller”).
The complaint alleged that the Defendants engaged in conspiracy and false advertising, and were
responsible for disappearing funds. The complaint stated:

               I Marilyn Stavely am filing this petition against AmSouth Bank and Mary
       Jane Miller Manager of AmSouth Bank charging them with conspiracy, false
       advertising, and disappearing funds in there (sic) Bank. . . . The employees tried to
       form a conspiracy against me. They were rude. The tellers would say we don’t have
       any funds. I knew they did have 2 accounts in my Mothers name Ruth I. Duggin.
       They were not friendly. My uncle Wm. Duggin and I told them to put the accounts
       in a frozen status after her death. The woman told us she would. The Manager told
       us she wasn’t there anymore. Naome was her name. In my opinion the Funds were
       given to the wrong persons. I have a piece of paper that went into court (Gibson
       County Court) explaining I am Ruth I. Duggin’s only daughter and heir to her estate.
       I will show this piece of paper in court. I showed this to Mr. Rainey, an employee
       of AmSouth Bank. He said he couldn’t find any funds, when he looked on the
       computer. They did have a word Integrity on the wall of the Bank. They lied about
       the checking account. I have a Bank statement to prove it was there. I have
       witnesses also.
               This Bank and Employees caused me hurt and pain! They did not give me
       funds right after my Mother’s Death (both accounts). My uncle and I ask the Branch
       Manager at AmSouth would she look and see. She said there wasn’t another account
       she could find.

(emphasis in original). Stavely sought a judgment in the amount of $100,000 for “problems, hurt,
and pain.”

        On March 14, 2005, the Defendants filed their answer with the court. The Defendants
asserted numerous defenses to Stavely’s claim, including that (1) the complaint should be dismissed
for failure to state a claim upon which relief could be granted, (2) Stavely’s cause of action was
barred by the statute of limitations, (3) the cause of action was barred by the doctrine of laches, (4)


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the Bank had been discharged from any further obligation by virtue of its complete payment of the
accounts, (5) Stavely lacked standing to assert any interest in Ruth Duggin’s accounts, and (6)
service of process was insufficient.

        Later, the Defendants filed a motion to dismiss and a supporting affidavit by Defendant
Miller, describing the pertinent activities in the account, the relevant fees and balances, and the
disbursements made from those accounts during their existence. Attached to Miller’s affidavit were
the Bank’s records for the account, including the signature card, account statements, disbursements
made from the account, and certified copies of the conservatorship proceedings and accountings.
Miller explained that the withdrawals and deposits indicated in the account statements “correspond
precisely with the accounting approved by the Chancery Court of Gibson County.” She noted that
Ruth Duggin and the conservator had an interest only in the single conservatorship account, and had
no other accounts at the Bank.

       On May 9, 2005, the Gibson County Circuit Court held a hearing on the Defendants’ motion
to dismiss. The record does not contain a transcript of the hearing, but the trial court’s final order
noted that Stavely appeared on her own behalf at the hearing, argued her case, and presented
witnesses.

        On May 19, 2005, the trial court entered an order granting the Defendants’ motion to dismiss.
After reviewing the pleadings, Miller’s affidavit, the Plaintiff’s testimony, and the arguments
presented at the hearing, the trial court treated the Defendants’ motion as a motion for summary
judgment. The court ruled that, construing Stavely’s allegations liberally, and in a light most
favorable to her, there were no disputed issues of material fact as to liability, and that the Bank was
entitled to judgment as a matter of law.

       Stavely now appeals the trial court’s ruling. On appeal, Stavely argues that the Bank
employees conspired against her, that the Bank engaged in false advertising, and that the Bank is
responsible for disappearing funds.

        Summary judgment is appropriate only where the moving party establishes that there are no
genuine issues of material fact and that it is, therefore, entitled to a judgment as a matter of law.
Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993); see also Tenn. R. Civ. P. 56.04. In reviewing a
motion for summary judgment, “the court must take the strongest legitimate view of the evidence
in favor of the nonmoving party, allow all reasonable inferences in favor of that party, and discard
all countervailing evidence.” Id. at 210–11. On appeal, this Court reviews the trial court’s ruling
de novo, without any presumption that the trial court’s conclusions were correct. Webber v. State
Farm Mut. Auto. Ins. Co., 49 S.W.3d 265, 269 (Tenn. 2001).

        In the instant case, we have reviewed the record in depth, and conclude that the trial court
did not err in granting summary judgment for the Defendants. Stavely failed to produce sufficient
evidence to substantiate her claims of conspiracy, false advertising, and disappearing funds.
Viewing the evidence in the light most favorable to Stavely and drawing all reasonable inferences


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in her favor, we must conclude that the trial court correctly granted summary judgment in favor of
the Defendants.

       The decision of the trial court is affirmed. Costs of the appeal are taxed against
Appellant/Plaintiff Marilyn Stavely, and her surety, for which execution may issue, if necessary.




                                             ___________________________________
                                             HOLLY M. KIRBY, JUDGE




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