                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                   May 13, 2015 Session


                 ROBERT W. MILLS v. NITA D. MILLS, ET AL.

                  Appeal from the Chancery Court for Shelby County
                   No. CH1301272 Arnold B. Goldin, Chancellor

                          ________________________________

                    No. W2014-00855-COA-R3-CV – June 24, 2015
                        _________________________________


This case involves various causes of action related to the administration of an estate,
specifically, the executor‘s action in failing to fund a residuary trust. The trial court granted
summary judgment on the grounds that no assets remained in the estate to fund the residuary
trust, the expiration of the statute of limitations, and laches. Although we rely on different
grounds, we affirm the trial court‘s order granting summary judgment and dismissing the
complaint.

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

J. STEVEN STAFFORD, P. J., W.S., delivered the opinion of the Court, in which BRANDON O.
GIBSON, J., and KENNY ARMSTRONG, J., joined.

Lee S. Saunders and Robert Steven Butler, Somerville, Tennessee, for the appellant, Robert
W. Mills.

Kacey L. Faughnan, Edward T. Autry, and Joseph B. Reafsnyder, Memphis, Tennessee, for
the appellees, Nita D. Mills, and James Johnson.


                                          OPINION

                                         Background
        On January 30, 2013, Plaintiff/Appellant Robert W. Mills (―Appellant‖) filed a
Complaint to Compel Disclosure of Residual Trust or Alternatively for Declaratory Judgment
and Judicial Estoppel, For Equitable Relief, For Constructive Trust to Prevent Unjust
Enrichment, For Resulting Trust, For Accounting and for Injunction against Appellees Nita
D. Mills (―Ms. Mills‖ or ―Defendant Mills‖), Individually and as Executrix of the Estate of
William B. Mills, Deceased, and James Johnson (―Defendant Johnson‖), Trustee of the Nita
D. Mills Trust (collectively, ―Appellees‖). The complaint generally alleged that the assets of
Appellant‘s deceased father, William B. Mills (―Decedent‖), had been misappropriated by
Ms. Mills, the Appellant‘s step-mother, after the administration of Decedent‘s estate.
Decedent died in 1987, and his probate estate was closed in 1990. The dispute concerned the
administration of Decedent‘s will, which provided a residuary trust benefitting Appellant.
According to Appellant, Decedent, one his deathbed, verbally expressed his desire that his
property should be divided as follows: (1) a specific bequest to Decedent‘s sister of
$100,000.00; (2) a specific bequest to Appellant in the approximate amount of
$1,000,000.00; and (3) the remainder of his property one-half to his wife, Ms. Mills, and one-
half to Appellant in trust. At the time the estate was closed, Appellant signed a waiver
attesting to the fact that he had received all property bequeathed to him, and releasing Ms.
Mills from any further liability in relation to the estate. However, Appellant alleged that after
the estate was closed with no residuary trust established, Ms. Mills made continuous
assurances to Appellant that she would fund the trust in accordance with Decedent‘s wishes.
Accordingly, Appellant sought an order directing Ms. Mills to fund a trust representing one-
half of Decedent‘s remaining estate after the distribution of the first two bequests. Although
Appellant generally outlined the terms of Decedent‘s will in his complaint, he did not include
a copy of the will as an attachment.
        Appellees jointly filed a motion to dismiss on the basis of the expiration of the statute
of limitations. Attached to the motion to dismiss was a copy of Decedent‘s Last Will and
Testament. Decedent‘s will contains six specific bequests listed in order of priority. First,
Decedent directed that all funeral, testamentary, and tax expenses related to Decedent‘s death
or the administration of the estate would be paid. Second, Decedent directed that his sister,
Marjorie Andre, should receive $100,000.00, if she should survive Decedent. Third,
Decedent confirmed that all household goods were the sole and separate property of Ms.
Mills. Fourth, Decedent directed that Appellant would receive ―an amount equal in value to
that which will provide the maximum unified credit and estate death tax credit permitted to
my estate by the Internal Revenue Code,‖ should Appellant survive Decedent. Fifth,
Decedent directed that Ms. Mills should receive:




                                               2
                         [A]n amount equal to one-half (1/2) of my adjusted gross
                 estate1 as finally determined under the Internal Revenue Code
                 for federal estate tax purposes, diminished, however, by the
                 value of any property or interests in property which pass or have
                 already passed to my said wife under any other item of this will
                 (excluding property or interests in property provided for my wife
                 in the Item SIXTH of this Will), but only to the extent that such
                 property or interests included in determining the value of my
                 gross estate for federal estate tax purposes and which qualify for
                 the marital deduction under the Federal Estate Tax Law in effect
                 at my death.
Sixth, and finally, Decedent directed that a trust be created from the residual property in the
estate for the benefit of Appellant. The trial court eventually denied the motion to dismiss.
       Appellees subsequently filed a motion for summary judgment, arguing that Ms. Mills
was under no duty to fund the residuary trust as no assets existed in the estate to fund the
residuary trust, that all claims were barred by the applicable statutes of limitations, waiver,
judicial estoppel, laches, and that any alleged oral promise was not supported by
consideration. Appellees included with their motion a lengthy Statement of Undisputed Facts.
Pertinent to this appeal, the Statement of Undisputed Facts submitted by Appellees provided


        1
          Adjusted gross estate is defined as ―the value of the gross estate reduced by the sum of the amounts
allowable as a deduction under section 2053 or 2054.‖ 26 U.S.C.A. § 6166. Section 2053 specifically provides
that:

                         [T]he value of the taxable estate shall be determined by deducting
                 from the value of the gross estate such amounts—

                          (1) for funeral expenses,
                          (2) for administration expenses,
                          (3) for claims against the estate, and
                          (4) for unpaid mortgages on, or any indebtedness in respect of,
                          property where the value of the decedent's interest therein,
                          undiminished by such mortgage or indebtedness, is included in the
                          value of the gross estate, as are allowable by the laws of the
                          jurisdiction, whether within or without the United States, under
                          which the estate is being administered.

26 U.S.C.A. § 2053(a). Section 2054 provides that ―the value of the taxable estate shall be determined by
deducting from the value of the gross estate losses incurred during the settlement of estates arising from fires,
storms, shipwrecks, or other casualties, or from theft, when such losses are not compensated for by insurance
or otherwise.‖ 26 U.S.C.A. § 2054.
                                                       3
significant background information regarding the administration and closing of Decedent‘s
estate. According to the Statement of Undisputed Facts:2
                     5. On December 30, 1987, the Last Will and Testament of
                     [Decedent] was admitted to probate by the Probate Court of
                     Shelby County, Tennessee under Docket Number B-10927.
                     6. The Defendant, [Ms.] Mills, was appointed to serve as
                     Executrix of the Estate of [Decedent] by Order entered
                     December 30, 1987.
                     7. At the time of the death of the Decedent [], the total value of
                     the assets owned jointly with right of survivorship and/or as
                     tenants by the entirety between the Decedent [], and his spouse,
                     [Ms.] Mills, was $8,193,203.58.
                     8. At the time of the death of the Decedent [], the total value of
                     the assets individually owned by the Decedent [], was
                     $198,110.99.
                                                     * * *
                     (f) The total value of assets owned individually by the Decedent
                     [], at the time of his death (according to the Federal Estate Tax
                     Return) was $198,110.99, exclusive of the $2,500.00 of
                     miscellaneous furniture, furnishings and personal effects.
                     [9](g) The total value of assets owned individually by the
                     Decedent [], at the time of his death (according to the Initial
                     Inventory) was $193,806.83.
                     10. Because the total value of the assets individually owned by
                     the Decedent [], ($198,110.99 per the Form 706, and
                     $193,806.83 per the Initial Inventory) and thus subject to a
                     probate administration was not sufficient to fully fund either
                     specific bequest under the Last Will and Testament of
                     [Decedent] (Article Second - $100,000 payable to Marjorie
                     Andre and Article Fourth - $500,000 payable to [Appellant]),
                     [Ms.] Mills executed a Disclaimer filed with the Probate Court
                     of Shelby County, Tennessee on February 26, 1988, disclaiming

           2
               Citations to attached documents and other parts of the technical record are omitted for ease of
reading.
                                                        4
                 the following three (3) assets which were held as tenants by the
                 entirety between the Decedent [] and [Ms.] Mills:
                 (a) Tennessee Local Development Authority State Loan
                 Program Revenue 1986 Refunding Series A; Par Value =
                 $500,000.00; Purchased by the Decedent [], on May 29, 1987;
                 (b) Tennessee Local Development Authority State Loan
                 Program Revenue 1986 Refunding Series A; Par Value =
                 $500,000.00; Purchased by the Decedent [], on May 29,1987;
                 and
                 (c) Tennessee Housing Development Agency homeownership
                 Program Bonds Issue F; Par Value = $250,000.00; Purchased by
                 the Decedent [], on September, 1, 1987.
                 11. An Order accepting the disclaimer of non-probate property
                 and accepting the disclaimed property as a probate asset of the
                 Estate of [Decedent] was entered by the Probate Court of Shelby
                 County, Tennessee on March 23, 1988.
                 12. The total value of the disclaimed assets was $1,065,578.76.
                 13. Accordingly, the total value of the assets subject to a probate
                 administration from and after the filing of the disclaimer of non-
                 probate property on February 26, 1988 and the entry of the
                 Order accepting the disclaimer of non-probate property and
                 accepting the disclaimed property as a probate asset of the Estate
                 of [Decedent] on March 23, 1988 was $1,263,689.75.
                 14. On or about June 29, 1989, Ms. Mills, in her capacity as
                 Executrix of the Estate, filed an interim settlement with the
                 Probate Court of Shelby County, Tennessee showing an initial
                 inventory of $1,228,806.83.3
                                                    * * *
                 17. Pursuant to the terms of the Last Will and Testament of
                 [Decedent], the aforementioned assets ($1,263,689.75 using the
        3
          Appellees‘ Statement of Undisputed Facts explains in detail the difference between the total value of
the estate after the disclaimer and the initial inventory. The fact that the actual value and the initial inventory
differed is not at issue in this appeal.

                                                        5
                Form 706) were used to fund or satisfy the bequests, in their
                order of priority, as follows:
                (a) $33,075.19 was utilized for the payment of funeral expenses
                and expenses incurred in administering property subject to
                claims.
                (b) $14,834.10 was utilized for the payment of debts of the
                decedent.
                (c) $100,000 was utilized for the payment of the specific bequest
                to Marjorie Andre pursuant to the Second Article of the Last
                Will and Testament.
                (d) $917,669.47 was distributed to [Appellant] pursuant to the
                Fourth Article of the Last Will and Testament.
                (e) The balance or $193,806.83 was distributed to [Ms.] Mills in
                partial satisfaction of the Fifth Article, of the Last Will and
                Testament which required that one-half (1/2)of the Adjusted
                Gross Estate was bequeathed to [Ms.] Mills.4
                (f) Following the partial satisfaction of the bequest to [Ms.]
                Mills in the Fifth Article of the Last Will and Testament, there
                were no estate funds remaining to fund any portion of Sixth
                Article which provided for the creation of QTIP or Residual
                Trust contained therein.
                (g) Accordingly, there was no QTIP or Residual Trust created
                and no assets were distributed to Morris H. Mills in his capacity
                as Trustee.


                                                 * * *




        4
          The Statement of Undisputed Facts explained that applying the applicable federal rules governing
calculating the adjusted gross estate, Decedent‘s adjusted gross estate totaled $5,312,382.25. Accordingly,
Appellant‘s one-half interest totaled $2,656,191.13. Accordingly, the $193,806.83 that Ms. Mills actually
received under this bequest represented only partial satisfaction of the bequest.
                                                    6
                26. On March 21, 1990, the Estate of [Decedent] was closed and
                [Ms.] Mills was discharged as Executrix.
        In addition, the Statement of Undisputed Facts indicated that that Appellant
participated in a meeting with Ms. Mills and attorney David T. Popwell prior to signing the
waiver in 1990.5 In this meeting, Mr. Popwell allegedly informed Appellant that because a
substantial portion of Decedent‘s property was owned with Ms. Mills as tenants by the
entirety, and therefore was not part of the estate, there was no money left in the estate to fund
the residuary trust, and that no trust would be funded from the estate. Mr. Popwell also
informed Appellant that ―but for the Disclaimer of certain assets held as tenants by the
entirety by [Ms.] Mills . . . , [Appellant] would have received no assets from the Estate[.]‖
Attached to Appellees‘ Statement of Undisputed Facts was a sworn affidavit from Mr.
Popwell generally confirming discussion of the meeting contained in the Statement of
Undisputed Fact. Accordingly, Appellees argued that Appellant knew or should have known,
prior to signing the waiver in 1990, that the residuary trust had not been funded.
        On February 28, 2014, Appellant filed a response in opposition to Appellees‘
Statement of Undisputed Facts. In his response, Appellant disputed many of the relevant
allegations contained in Appellees‘ Statement of Undisputed Facts due to Appellees‘ failure
to properly respond to requests concerning these facts during discovery. Notably, however,
Appellant directed the court to no documents or other evidence in the record to dispute that:
(1) the will contained in the record was the true Last Will and Testament of Decedent; (2) he
received considerably more funds from the estate than he was originally entitled due to Ms.
Mills‘s disclaimer of certain jointly owned property; and (3) following the partial satisfaction
of Ms. Mills‘s specific bequest, there were no funds remaining in the estate to fund the final
bequest, namely the residuary trust benefiting Appellant.
       Appellant did, however, contest Appellees‘ assertions regarding the meeting with Mr.
Popwell. Specifically, Appellant filed his own affidavit contesting the affidavit of Mr.
Popwell.6 In his affidavit, Appellant alleged that he attended no meeting with Mr. Popwell
and that he was never informed that Ms. Mills did not intend to fund the residuary trust.
Instead, Appellant alleged that Ms. Mills continually informed Appellant that the residuary
trust would be funded and that he did not learn that Ms. Mills‘s representation was false until

        5
          Neither Appellees‘ Statement of Undisputed Facts nor the affidavit of the attorney who allegedly had
the meeting with Appellant indicates either an exact or approximate date for the meeting. Because the meeting
concerned whether Appellant would sign the waiver, we infer that it occurred prior to the execution of the
waiver on January 17, 1990.
        6
          Although Appellant‘s response was technically untimely, the trial court in its later order expressly
ruled that it would consider his submissions. Appellees do not raise this ruling as an error on appeal.
Accordingly, we will likewise consider Appellant‘s response in opposition to Appellees‘ motion for summary
judgment as if it had been timely filed.
                                                      7
2010, when an uncle informed him that Ms. Mills had not funded the trust. Nothing in
Appellant‘s affidavit disputed the statement in Appellees‘ Statement of Undisputed Facts that
the estate was extinguished by the partial satisfaction of Ms. Mills‘s specific bequest and
that, therefore, no funds remained in the estate to fund the residuary trust.
        After a hearing on the motion, the trial court granted summary judgment in favor of
Appellees on three grounds: (1) the expiration of the statutes of limitations governing
breaches of contract and breaches of fiduciary duties; (2) the fact that no assets remained in
the estate to fund the residuary trust; and (3) laches. The trial court entered a final judgment
on March 28, 2014. Appellant appealed.
                                      Issues Presented
       Appellant raises three issues, which are taken from his brief:
           1. Whether the trial court erred in granting summary judgment on
              Causes of Action 1 through 5, on the ground that claims for
              breach of duty and breach of contract are barred by the
              applicable statute of limitations.
           2. Whether the trial court erred in granting summary judgment on
              Causes of Action 1 through 5, on the ground that there were no
              funds subject to probate administration left to distribute.
           3. Whether the trial court erred in granting summary judgment on
              Causes of Action 1 through 5, on the ground that the claims are
              barred by the doctrine of laches.


                                    Standard of Review
      With regard to summary judgments, this Court explained in Estate of Boote v.
Roberts:
                     The trial court's resolution of a motion for summary
              judgment is a conclusion of law, which we review de novo on
              appeal, according no deference to the trial court's decision.
              Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008).
              Summary judgment is appropriate only when the moving party
              can demonstrate that there is no genuine issue of material fact,
              and that it is entitled to judgment as a matter of law. Tenn. R.
              Civ. P. 56.04; see Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 5
              (Tenn. 2008); Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993).


                                               8
                         This action was filed [after July 1, 2011]. Therefore, the
                 trial court was required to apply the summary-judgment standard
                 set forth in Tennessee Code Annotated § 20-16-101. That statute
                 provides:
                         In motions for summary judgment in any civil
                         action in Tennessee, the moving party who does
                         not bear the burden of proof at trial shall prevail
                         on its motion for summary judgment if it:
                         (1) Submits affirmative evidence that negates an
                         essential element of the nonmoving party's claim;
                         or
                         (2) Demonstrates to the court that the nonmoving
                         party's evidence is insufficient to establish an
                         essential element of the nonmoving party's claim.
                 Tenn. Code Ann. § 20-16-101 (Supp. 2012).
Estate of Boote v. Roberts, No. M2012-00865-COA-R3-CV, 2013 WL 1304493, at *8–9
(Tenn. Ct. App. Mar. 28, 2013), no perm. app. filed (footnotes omitted).
                                                Discussion
       The trial court granted summary judgment on three alternative bases: (1) the
expiration of the statutes of limitation governing breach of contract actions, Tennessee Code
Annotated Section 28-3-109(a), and fiduciary duties in estate actions, Tennessee Code
Annotated Section 28-3-110(a); (2) the exhaustion of the estate prior to the funding of the
residuary trust; and (3) laches. Appellant argues that the trial court erred in treating his
claims collectively and that considering each claim independently, summary judgment was
inappropriate.
       The Tennessee Supreme Court in Benz-Elliott v. Barrett Enterprises, LP, 456 S.W.3d
140, 141 (Tenn. 2015), recently held ―that a court must identify the gravamen of each claim
alleged to determine the applicable statute of limitations. Identifying the gravamen of a claim
requires a court to consider both the legal basis of the claim and the injury for which damages
are sought.‖7 In his complaint and his brief to this Court, Appellant divides his claims into


        7
            We note that the Benz-Elliot decision was released after the trial court granted summary judgment in
this case. Accordingly, the trial court did not have the benefit of the Tennessee Supreme Court‘s guidance on
this issue.
                                                       9
five separate causes of actions. Accordingly, we will consider each of Appellant‘s causes of
action individually.
                                     Cause of Action 1
       In his complaint, Appellant‘s first count sought to compel disclosure of any trust that
may have been established in the event that Appellant was unaware of such trust. During the
course of the proceedings in the trial court, Ms. Mills confirmed that no trust was created to
benefit Appellant. Accordingly, Appellant admits, and this Court agrees, that Count 1 is
moot. See Pylant v. Haslam, No. M2011-02341-COA-R3CV, 2012 WL 3984648, at *4
(Tenn. Ct. App. Sept. 11, 2012) (―A case will generally be considered moot if it no longer
serves as a means to provide relief to the prevailing party.‖) (quoting McIntyre v. Traughber,
884 S.W.2d 134, 137 (Tenn. Ct. App. 1994)).
                                     Cause of Action 2
       A thorough review of Appellant‘s second cause of action reveals that it relates solely
to Ms. Mills‘s duties as executor of Decedent‘s estate. After detailing the undisputed facts
regarding Decedent‘s will and the administration of the estate, Appellant‘s second cause of
action contains the following relevant allegations:
              43. On June 28, 1989, Defendant Mills, as Executrix, filed under
              oath an interim settlement with the Probate Court reporting, in
              part, debits belonging to the estate of which she was chargeable
              valued at approximately $11,888,000.00. After payment of
              expenses, debts, taxes, partial distributions and specific
              bequests, undistributed assets valued at $11,402,000.00
              remained [in] the estate as of June 1989.
              44. In January 1990, Defendant Mills paid [Appellant] the
              remaining portion of his specific bequest under the Will in the
              amount of $660,000.00, after which it is believed that
              undistributed assets valued at approximately $10,742,000.00
              remained a part of the estate.
              45. Defendant Mills in bad faith has failed and refused to set up
              the residual trust pursuant to the Will without legal justification.
              46. During 2010 [Appellant‘s] uncle, Morris Mills, stated to
              [Appellant] that ―she [Defendant Mills] did not set up the trust
              like she was supposed to‖.


                                              10
              47. Upon information and belief, Defendant Mills has caused
              most, if not all, of the undistributed assets which were a part of
              the Decedent's estate to be transferred into the Nita D. Mills
              Revocable Living Trust of which Defendant Johnson is Trustee,
              including assets that Defendant Mills as Executrix had a duty to
              distribute to Morris Mills as Trustee of the residuary trust.
              48. Defendant Mills should be judicially estopped from denying
              that, as of June 28, 1989, assets belonging to the estate for
              which she was chargeable were valued at $11,887,718.48 and
              that after payment of expenses, debts, taxes, partial distributions
              and specific bequests totaling approximately $486,000.00, there
              remained undistributed assets in the estate valued at
              approximately $11,402,000.00.
              49. Following the $660,000.00 specific bequest payment in
              January 1990, undistributed assets valued at approximately
              $10,742,000.00 remained a part of the estate.
              50. Pursuant to Tenn. Code Ann. §30-2-701, Defendant Mills, as
              Executrix, was charged with the duty to pay the balance of
              assets in the estate to the legatees entitled to it under the Will, to
              wit: one-half (1/2) to Defendant Mills individually, and one-half
              (1/2) to Morris Mills as Trustee of the residual trust.
              51. The Doctrine of Judicial Estoppel prohibits Defendant Mills
              from asserting now that there were no assets in the estate to be
              distributed to the residuary trust because her Interim Settlement
              filed under oath in June 1989 showed that there remained
              undistributed assets in the estate valued at approximately
              $11,402,000.00.
Accordingly, Appellant argued that because $11,402,000.00 remained in the estate, the court
should enter an order estopping Ms. Mills from ―denying that the estate held assets that
should have been distributed to‖ Appellant, and requested an order requiring Ms. Mills to
distribute one-half of those assets to him.
       In his brief, Appellant appears to have altered his argument. Instead of asserting that
Decedent‘s estate held $11,402,000.00 in undistributed assets, he now asserts that this claim
involves the assets that were jointly owned by Decedent and Ms. Mills at the time of
Decedent‘s death that passed to Ms. Mills as a tenant by the entirety. It is well-settled,
however, that property held as tenants by the entirety is not included in a decedent‘s estate
                                               11
―because property held as tenants by the entirety passes outside of probate and is not subject
to disposition in [a] [d]ecedent‘s will.‖ In re Estate of Grass, No. M2005-00641-COA-R3-
CV, 2008 WL 2343068, at *28 (Tenn. Ct. App. June 4, 2008) (citing Grahl v. Davis, 971
S.W.2d 373, 378 (Tenn. 1998) (―Upon the death of one spouse, ownership of tenancy by the
entirety property immediately vests in the survivor, and the laws of descent and distribution
do not apply.‖)). However, Appellant never amended his complaint to alter his allegations
regarding this cause of action in any way. He cannot now claim that this cause of action
concerns property that was not legally a part of Decedent‘s estate, when a thorough reading
of his second cause of action expressly states that it is based upon undistributed assets of the
estate, rather than non-probate assets.
       Further, we agree with the trial court‘s conclusion that there can be no claim that
Appellant was injured by Ms. Mills‘s failure to fund the residuary trust from the remaining
funds in Decedent‘s estate because the estate‘s funds were extinguished in partial satisfaction
of the specific bequest to Ms. Mills. Appellant does not appear to argue that property
remained in the estate to fund the residuary trust. Indeed, he cannot, as he never submitted
any evidence to dispute this fact in Appellees‘ Statement of Undisputed Facts.
       When a defending party submits a properly supported summary judgment motion
either negating an essential element of the non-moving party‘s proof or demonstrating that
the non-moving party‘s evidence is insufficient to establish its claim, Tenn. Code Ann. § 20-
16-101, the burden of production then shifts to the nonmoving party to show that a genuine
issue of material fact exists. Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). Here, Ms.
Mills submitted a motion for summary judgment indicating that Appellant could assert no
cause of action with regard to Ms. Mills‘s failure to create the residuary trust provided in
Decedent‘s will because after the partial satisfaction of Ms. Mills‘s specific bequest, no
assets remained in the estate to fund the residuary trust. Further, Appellees asserted that
regardless of the failure to fund the residuary trust, Appellant received more from his specific
bequest in the will than he was legally entitled. Appellees supported these allegations with a
properly filed Statement of Undisputed Facts and other supporting documents. While
Appellant indicated that he disputed these facts, he offered no proof of any kind to show that
Appellees‘ assertions were incorrect. Instead, he merely pointed to various discovery requests
that were not adequately answered by Ms. Mills. However, this is not an appropriate way to
respond to a properly supported motion for summary judgment. Instead, a non-moving party
may meet their burden of production in one of four ways:
              (1) pointing to evidence establishing material factual disputes
              that were overlooked or ignored by the moving party; (2)
              rehabilitating the evidence attacked by the moving party; (3)
              producing additional evidence establishing the existence of a
              genuine issue for the trial; or (4) submitting an affidavit
                                            12
                explaining the necessity for further discovery pursuant to Tenn.
                R. Civ. P. 56.06.
Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008) (citations omitted). With
regard to presenting evidence, the nonmoving party must present specific facts establishing
that issues of fact exist and may not simply rest upon the pleadings, but must offer proof by
affidavits or other discovery materials to show that there is a genuine issue for trial. Simerly
v. City of Elizabethton, No. E2009-01694-COA-R3-CV, 2011 WL 51737, at *6 (Tenn. Ct.
App. Jan. 5, 2011).
       Here, Appellant simply failed to meet his burden. Rather than pointing to evidence
ignored by Ms. Mills or submitting additional evidence in the form of depositions, affidavits,
or discovery responses, Appellant simply took issue with the way in which Appellees
responded to discovery requests. If Appellant was dissatisfied with Appellees‘ discovery
responses, he certainly was permitted to seek additional discovery through the submission of
an affidavit. Martin, 271 S.W.3d at 84. A thorough review of the record, however, indicates
that while Appellant often took issue with the depth to which Appellees responded to
discovery,8 he filed no affidavit explaining the need for additional discovery.9 Accordingly,
        8
          For example, with regard to Undisputed Fact 17 regarding the exhaustion of the estate so that no
assets remained to fund the residuary trust, Appellant responded:

                Disputed. The Defendant, [Ms.] Mills, in response to INTERROGATORY
                NO.‘s 1,2,3, and 4 and REQUEST FOR PRODUCTION NO.‘s 1,2,3, and 4
                of Plaintiff's First Set of Interrogatories and Request for Production
                Propounded to Defendant [Ms.] Mills, which dealt with the subject matter
                of this purported undisputed material fact, stated that she was without
                sufficient knowledge or information to respond to the interrogatory and that
                the Federal Estate Tax Return (Form 706) was the best evidence and most
                responsive to the interrogatory. In her response to INTERROGATORY NO.
                4 and REQUEST FOR PRODUCTION NO. 4, she objected to the
                interrogatory and request as overly broad, unduly burdensome, harassing and
                not reasonably calculated to lead to the discovery of admissible evidence
                concerning any disputed issue of law or fact in this case. Additionally, in sub
                part (d) the amount distributed to [Appellant] could not have been pursuant
                the Fourth Article of the Last Will and Testament of William B. Mills
                because it exceeds the $600,000.00 threshold for the federal unified tax
                credit for 1987, the year of the decedent's death. See INTERROGATORY
                NO. 1, 2, 3, and 4 and RESPONSE NO. 1, 2, 3, and 4 Nita D. Mills
                Response to Plaintiff's First Set of Interrogatories and Request for
                Production Propounded to Defendant; See also REQUEST FOR
                PRODUCTION NO.'s 1, 2, 3, and 4 and RESPONSE NO.'s 1, 2, 3, and 4
                Nita D. Mills Response to Plaintiff's First Set of Interrogatories and Request
                for Production Propounded to Defendant.

                                                     13
the trial court was correct in considering Appellees‘ motion for summary judgment, despite
the fact that Appellant questioned whether discovery was completed. Moreover, because
Appellant did not properly dispute any of Appellees‘ allegations regarding the
extinguishment of the estate, resulting in the residuary trust not being funded, those facts
must be taken as true for purposes of considering the summary judgment issue. Cardiac
Anesthesia Servs., PLLC v. Jones, 385 S.W.3d 530, 539 (Tenn. Ct. App. 2012) (―[W]hen a
non-moving party fails to respond to the moving party‘s statement of undisputed facts, the
court may consider the facts admitted.‖).
        Because he now admits that there were no funds left in the estate to fund the residuary
trust, Appellant‘s argument that undistributed assets remained in the estate to fund the
residuary trust is simply unsupported. Furthermore, because no funds remained in the estate
to fund the residuary trust, Appellant‘s request that the residuary trust be funded from the
property remaining in the estate is moot. See Pylant, 2012 WL 3984648, at *4. Accordingly,
the trial court did not err in dismissing Cause of Action 2. Any issues regarding the
expiration of the statute of limitations or laches are pretermitted.
                                           Cause of Action 3
        Appellant‘s third cause of action contains the following relevant allegations:
                 53. On his hospital bed in December 1987, Decedent told
                 [Appellant] and Defendant Mills, among other things, that the
                 rest of his Estate was to be divided one-half (1/2) out right to his
                 wife (Defendant Mills) and one-half (1/2) to a trust, for the
                 benefit of the [Appellant], with Defendant Mills to receive the
                 income from the trust during her life.
                 54. Defendant Mills acknowledged hearing Decedent‘s deathbed
                 statements and did not dispute or voice any disagreement with
                 the statements made by Decedent.
                 55. Decedent‘s Last Will and Testament provided, in part, inter
                 alia, for Defendant Mills to receive out right an amount equal to

Nothing in this response, however, in any way disputes the fact that the estate had no assets from which to
fund the residuary trust.
        9
           Appellant did file a motion to compel discovery prior to the filing of Appellees‘ motion for summary
judgment. However, the motion did not contain an affidavit, and therefore, it is not a proper response to the
motion for summary judgment. In addition, Appellant does not raise the trial court‘s failure to compel
Appellees to respond to discovery as an issue in this appeal. We note, however, that trial courts should not
tolerate discovery responses that are evasive or unresponsive.
                                                     14
              one-half (1/2) of the adjusted gross estate and the remaining
              one-half (1/2) of the adjusted gross estate to be distributed to
              Morris Mills, Trustee, for the benefit of the [Appellant] with net
              income payable to the Defendant for life.
              56. In October 1988, when [Appellant] received the $200,000.00
              partial specific bequest distribution, Defendant Mills assured
              [Appellant] that she was going to do what the Decedent wanted
              done, including setting up the trust that Decedent described on
              his deathbed and in his Will.
              57. In June 1989, Defendant Mills filed an Interim Settlement
              reporting debits belonging to the Estate for which she was
              chargeable valued at $11,887,718.48.
              60. Many years later in 2010, [Appellant] first became aware
              that the residual trust may not have been set up when Morris
              Mills stated to [Appellant] that ―she [Defendant Mills] did not
              set up the trust like she was supposed to‖.
                                           * * *
              62. Defendant Mills should be equitably estopped from
              repudiating her oral promises to set up the residual trust.
              63. By making those promises, Defendant Mills intentionally
              induced [Appellant] to sign the Receipt and Waiver and thereby
              forego his right to notice of hearing, review of the final
              accounting and to enforce that the trust be set up as a condition
              of closing the Estate.
              64. Equity will not permit Defendant Mills to act and set up a
              claim inconsistent with her promises to set up the trust that
              induced [Appellant] to sign the receipt and waiver and thereby
              unjustly enrich herself by keeping the assets which she promised
              would be distributed to the residuary trust.
As such, Appellant asserts that the doctrine of equitable estoppel requires that Ms. Mills act
consistently ―with her oral promises to set up the trust.‖
       To prevail on a claim for equitable estoppel, a plaintiff must show:


                                             15
              (1) Conduct which amounts to a false representation or
              concealment of material facts, or, at least, which is calculated to
              convey the impression that the facts are otherwise than, and
              inconsistent with, those which the party subsequently attempts to
              assert; (2) Intention, or at least expectation that such conduct
              shall be acted upon by the other party; (3) Knowledge, actual or
              constructive of the real facts.
Osborne v. Mountain Life Ins. Co., 130 S.W.3d 769, 774 (Tenn. 2004) (citing Consumer
Credit Union v. Hite, 801 S.W.2d 822, 825 (Tenn. Ct. App. 1990)). Equitable estoppel also
requires the following elements with respect to the party asserting estoppel:
               (1) Lack of knowledge and of the means of knowledge of the
              truth as to the facts in question; (2) Reliance upon the conduct of
              the party estopped; and (3) Action based thereon of such a
              character as to change his position prejudicially.
Osborne, 130 S.W.3d at 774 (citing Hite, 801 S.W.2d at 825). ―The doctrine is ordinarily
applicable only to representations as to facts, either past or present.‖ Hite, 801 S.W.2d at
825. As explained by this Court:
              In the typical equitable estoppel situation, the defendant has
              represented an existing or past fact to the plaintiff, who
              reasonably and in ignorance relied upon the representation to his
              detriment. Equitable estoppel necessarily precluded the
              claimant‘s reliance on the defendants‘ present or future
              intention, which initiated the development of promissory
              estoppel.
Hood Land Trust v. Hastings, No. M2009-02625-COA-R3-CV, 2010 WL 3928647, at *6
(Tenn. Ct. App. Oct. 5, 2010) (quoting 21 Steven W. Feldman, Tennessee Practice Series:
Contract Law and Practice § 5.25 (2009) (emphasis in original)). ―Thus, . . . we do not
consider a promise alone sufficient to constitute a representation of material fact for purposes
of equitable estoppel.‖ Hood Land Trust, 2010 WL 3928647, at *6.
       From our review, Appellant‘s third cause of action concerns exactly the type of
promise that is insufficient to constitute a representation of material fact for purposes of
equitable estoppel. Here, Appellant asserts that Ms. Mills promised ―that she was going to do
what the Decedent wanted done.‖ Indeed, Appellant refers to the statements by Ms. Mills as
―promises‖ and specifically asks the court to find that Ms. Mills is equitably estopped from
―acting inconsistently with her oral promises to set up the trust.‖ As the alleged statements by
Ms. Mills concern future performance, rather than existing or past fact, they cannot form the
                                              16
basis for a claim of equitable estoppel.10 Because this Court is permitted to rely on grounds
other than those cited by the trial court in granting a motion for summary judgment, see Hill
v. Lamberth, 73 S.W.3d 131, 136 (Tenn. Ct. App. 2001), we affirm the trial court‘s dismissal
of this cause of action, concluding that Appellant‘s allegations, even if taken as true, are
insufficient to make out a prima facie case of equitable estoppel. Any issues regarding the
expiration of the statute of limitations or the application of laches are pretermitted.
                                          Cause of Action 4
       Appellant‘s fourth cause of action concerns unjust enrichment and the establishment
of a constructive trust. After recounting the above allegations concerning Decedent‘s
deathbed statements, Decedent‘s will, and the allegation that assets remained in the estate for
distribution, Appellant alleged:
                66. [Appellant‘s] father accumulated his wealth by developing
                and building multifamily apartment complexes and single family
                homes.
                68. [Appellant‘s] natural mother died in 1959 and [Appellant‘s]
                father married Defendant Mills in 1962.
                69. Defendant Mills, who brought no assets into the marriage,
                did not work outside the home, and contributed nominal services
                to the Decedent's business.
                70. [Appellant] began working for his father in the business
                after graduating from high school in 1967. Starting in 1970 he
                ran crews of workmen for his father in the construction business
                and was involved in the management of his father's business
                until Decedent's death in 1987, and his efforts substantially
                contributed to the accumulation of Decedent's wealth.
                                                 * * *

        10
           We note that promises as to future performance may create a cause of action under the doctrine of
promissory estoppel. See Nationsbank, N.A. (South) v. Millington Homes Investors, Ltd., No. 02A01-9805-
CH-00134, 1999 WL 79204 at * 3–4 (Tenn. Ct. App. Feb. 19, 1999) (―Promissory estoppel is defined as ‗a
promise which the promisor should reasonably expect to induce action or forbearance on the part of the
promisee or a third person and which does induce such action or forbearance is binding if injustice can be
avoided only by enforcement of the promise....‘‖). Nothing in Appellant‘s complaint or appellate brief
indicates that any of his claims rest on the doctrine of promissory estoppel. Accordingly, any argument
regarding promissory estoppel is waived. See generally Childress v. Union Realty Co., 97 S.W.3d 573, 578
(Tenn. Ct. App. 2002).
                                                    17
73. In October 1988, when Appellant received the $200,000.00
partial distribution of the specific bequest, Defendant Mills
promised Appellant that she was going to do what the Decedent
wanted done including setting up the trust that Decedent
described on his deathbed and in his Will.
74. In January 1990, when [Appellant] received the $660,000.00
final distribution of the specific bequest, Defendant Mills again
assured [Appellant] that she was going to do what the Decedent
wanted done, including setting up the trust that Decedent
described on his deathbed and in his Will.
                             * * *
76, Alternatively, [Appellant] alleges that in the event that
Defendant Mills contends that Decedent's property was held in
joint tenancy or tenancy by the entirety with the right of
survivorship, the evidence will show that such tenancy did not
constitute an ademption by extinction because Decedent and
Defendant Mills did not intend to create a true joint tenancy; but
rather used the joint tenancy solely for convenience as an
informal estate planning tool to save taxes or as a property
management device during his life. At all times material
Decedent and Defendant Mills intended that Defendant Mills
hold the joint interest as trustee for the Decedent and/or the
[Appellant], and that the property be bequeathed and devised in
accordance with the Will.
77. Consistent with that position, in February 1988, Defendant
Mills individually executed a disclaimer regarding the municipal
bonds in which she renounced and refused to accept the tenancy
by the entirety interest in said bonds valued at $750,000.00 par
value which became a part of the assets in the estate.
78. However, regarding the remainder of the property in
Decedent‘s estate, the evidence will show that Defendant Mills
acted inconsistently with Decedent's intentions stated in the Will
and her oral promises to establish the residual trust and she
wrongfully asserted a[n] unrestricted claim to ownership of all
of the rest and remainder of Decedent's property.


                               18
              79. In 2010, [Appellant‘s] uncle, Morris H. Mills, who Decedent
              designated in the Will as Trustee of the residual trust, stated to
              [Appellant] that, ―she [Defendant Mills] did not set up the trust
              like she was supposed to‖.
              80. Upon information and belief, Defendant Mills has caused
              most, if not all, of the assets which were a part of Decedent's
              estate to be transferred into the Nita D. Mills Revocable Living
              Trust of which Defendant Johnson is Trustee, including assets
              that Defendant Mills, as Executrix, had a duty to distribute to
              Morris Mills as Trustee of the residual trust.
              81. Defendant Mills has wrongfully obtained title to the property
              in breach of both her fiduciary duty and her equitable duty to
              establish the residual trust for the benefit of [Appellant] to
              whom it rightfully belongs. Defendant Mills‘[s] claim of
              ownership of the property is wrongful and would unjustly enrich
              Defendant Mills if she is allowed to retain it.
              82. [Appellant] has no adequate remedy available at law.
Accordingly, Appellant asks that the court to find that Ms. Mills was unjustly enriched and to
impose a constructive trust for his benefit over assets equal to one-half of Decedent‘s assets
at death.
        The elements of an unjust enrichment claim are: ―1) ‗[a] benefit conferred upon the
defendant by the plaintiff;‘ 2) ‗appreciation by the defendant of such benefit‘; and 3)
‗acceptance of such benefit under such circumstances that it would be inequitable for him to
retain the benefit without payment of the value thereof.‘‖ Freeman Indus., LLC v. Eastman
Chem. Co., 172 S.W.3d 512, 525 (Tenn. 2005) (internal citations omitted) (quoting
Paschall’s, Inc. v. Dozier, 219 Tenn. 45, 407 S.W.2d 150, 155 (Tenn. 1966)). ―The most
significant requirement of an unjust enrichment claim is that the benefit to the defendant be
unjust.‖ Freeman, 172 S.W.3d at 525 (citing Paschall’s, 407 S.W.2d at 155). The Tennessee
Supreme Court has held that unjust enrichment is synonymous with a claim for quantum
meruit. Paschall’s, Inc. v. Dozier, 219 Tenn. 45, 53, 407 S.W.2d 150, 154 (Tenn. 1966)
(―Actions brought upon theories of unjust enrichment, quasi contract, contracts implied in
law, and quantum meruit are essentially the same.‖). The essential elements of claim under a
theory of quantum meruit are:
              (1) there must be no existing, enforceable contract between the
              parties covering the same subject matter[;]

                                             19
             (2) the party seeking recovery must prove that it provided
             valuable goods and services[;]
             (3) the party to be charged must have received the goods and
             services[;]
             (4) the circumstances must indicate that the parties involved in
             the transaction should have reasonably understood that the
             person providing the goods or services expected to be
             compensated[;]
             (5) the circumstances must also demonstrate that it would be
             unjust for the party benefitting from the goods or services to
             retain them without paying for them.
Castelli v. Lien, 910 S.W.2d 420, 427 (Tenn. Ct. App.1995) (internal citations omitted).
      With regard to the remedy of constructive trust, this Court has explained:
                     ―A constructive trust may only be imposed against one
             who, by fraud, actual or constructive, by duress or abuse of
             confidence, by commission of wrong, or by any form of
             unconscionable conduct, artifice, concealment or questionable
             means, has obtained an interest in property which he ought not
             in equity or in good conscience retain.‖ Intersparex Leddin KG
             v. Al-Haddad, 852 S.W.2d 245, 249 (Tenn. Ct. App. 1992)
             (citing Livesay [v. Keaton], 611 S.W.2d [581] at 584 [(Tenn. Ct.
             App. 1980)]).
                    Tennessee has imposed constructive trusts in four
                    types of cases. They are: (1) where a person
                    procures the legal title to property in violation of
                    some duty, express or implied, to the true owner;
                    (2) where the title to property is obtained by
                    fraud, duress or other inequitable means; (3)
                    where a person makes use of some relation of
                    influence or confidence to obtain the legal title
                    upon more advantageous terms than could
                    otherwise have been obtained; and (4) where a
                    person acquires property with notice that another
                    is entitled to its benefits.
             Myers v. Myers, 891 S.W.2d 216, 219 (Tenn. Ct. App. 1994).
                                        20
Story v. Lanier, 166 S.W.3d 167, 185 (Tenn. Ct. App. 2004). The plaintiff has the burden to
establish the existence of a constructive trust by clear and convincing evidence. Id. (citing
Browder v. Hite, 602 S.W.2d 489, 493 (Tenn. Ct. App. 1980)).
        First, we note that Appellant cannot prevail on any claim that there were remaining
undistributed funds in Decedent‘s estate from which Ms. Mills was required to fund the
residuary trust, as we have already determined that no funds remained in the estate to fund
the trust. In addition to that argument, however, Appellant offers another theory of recovery,
namely that the property held by Decedent and Ms. Mills as tenants by the entirety was
merely held in that fashion for tax purposes and that such property should have been utilized
to fund the residuary trust. As such, Appellant seeks a constructive trust of one-half of the
property that was held by Decedent and Ms. Mills as tenants by the entirety at Decedent‘s
death.
        Here, Appellant‘s complaint specifically alleges that ―the evidence will show that . . .
Decedent and [Ms.] Mills did not intend to create a true joint tenancy; but rather used the
joint tenancy solely for convenience as an informal estate planning tool to save taxes or as a
property management device during his life.‖ A thorough review of the record indicates,
however, that Appellees have met their burden to ―[d]emonstrate[] to the court that the
[Appellant‘s] evidence is insufficient to establish‖ this fact. See Tenn. Code Ann. § 20-16-
101 (Supp. 2012). Although not specifically cited by the trial court in its order granting the
motion for summary judgment, Appellees did argue in their memorandum in support of their
motion for summary judgment that a substantial portion of Decedent‘s property was owned in
a tenancy by the entirety with Ms. Mills. Indeed, Appellees‘ Statement of Undisputed Facts
specifically states that:
              7. At the time of the death of the Decedent [], the total value of
              the assets owned jointly with right of survivorship and/or as
              tenants by the entirety between the Decedent [], and his spouse,
              [Ms.] Mills, was $8,193,203.58.
              8. At the time of the death of the Decedent [], the total value of
              the assets individually owned by the Decedent [], was
              $198,110.99.
Thus, Appellees‘ Statement of Undisputed Facts specifically establishes that the majority of
Decedent‘s property was owned jointly with Ms. Mills.
       As previously discussed, property owned in a tenancy by the entirety is not
distributable in probate, but passes to the surviving spouse immediately upon death. See
Grahl v. Davis, 971 S.W.2d 373, 378 (Tenn. 1998) (―The essential characteristic of a tenancy
by the entirety is that ‗each spouse is seized of the whole or the entirety and not of a share,
                                              21
moiety, or divisible part.‘‖) (quoting Sloan v. Jones, 192 Tenn. 400, 241 S.W.2d 506, 507
(Tenn. 1951)); see also In re Estate of Ladd, 247 S.W.3d 628, 644 (Tenn. Ct. App. 2007)
(―The right of survivorship attains further significance to the matter at issue because personal
property held by a husband and wife does not become part of the probate estate for purposes
of administration. Assets subject to the right of survivorship, such as the bond at issue, pass
to the surviving spouse by operation of law and do not become part of the probate assets in
the hands of the personal representative of the deceased spouse.‖). Additionally, property
acquired during marriage enjoys a presumption that it is held as tenants by the entirety. Smith
v. Sovran Bank Cent. S., 792 S.W.2d 928, 930 (Tenn. Ct. App. 1990) (―[T]he presumption
of the creation of a tenancy by the entirety can be rebutted only when a contrary intention is
expressed in the instrument itself, as opposed to extrinsic evidence.‖). Accordingly, it is
Appellant‘s burden to show that Ms. Mills was not legally entitled to this property.
        Appellant has clearly not met his burden in this case. A thorough review of the record
reveals no evidence, documentary or otherwise, that would rebut the strong presumption in
favor of tenancy by the entirety. Although Ms. Mills acted in favor of Appellant by
disclaiming some of her survivorship property, we cannot conclude that her benevolent
action is evidence that Decedent intended that all survivorship property be distributed in the
estate. Indeed, Decedent‘s will specifically states that the residuary trust created for the
benefit of Appellant was only to include the ―rest, residue, and remainder of my estate, real,
personal and mixed.‖ (emphasis added). Nothing in the record indicates that Decedent was
not a reasonably sophisticated party or that his will was not drafted by an attorney. Because
Decedent‘s will establishes a residuary trust of only the assets remaining in the estate, and
the term ―estate‖ only includes probate assets, we cannot conclude that Decedent‘s will
indicates his intention that Appellant should be entitled to a trust containing not only estate
assets, but also non-probate property.
        In this case, Ms. Mills simply retained the property that passed to her by operation of
law. Although Appellant asserts that her retention of this property is unjust because it is
contrary to Decedent‘s stated intentions, we cannot agree. First, we note that Decedent‘s
deathbed statements, even if taken as true, were not legally binding. Tennessee law
recognizes only three legally binding wills: (1) attested wills; (2) holographic wills; and (3)
nuncupative wills. See Tenn. Code Ann. §§ 32-1-104 to -106. Decedent‘s deathbed
statements fail to satisfy the requirements of any of the recognized will types. See Tenn. Code
Ann. § 32-1-104 (requiring for an attested will, that the will be signed by the testator, who
signifies to two witnesses that the instrument is his will, and the two witnesses sign the will
in the presence of the testator and each other); Tenn. Code Ann. § 32-1-105 (requiring ―the
signature and all its material provisions must be in the handwriting of the testator and the
testator's handwriting must be proved by two (2) witnesses‖ to prove a holographic will);
Tenn. Code Ann. § 32-1-106 (requiring for a valid nuncupative will, that the oral will be

                                              22
witnessed by two disinterested witnesses and dispose only of personal property not exceeding
$1,000.00). Accordingly, while the parties may have felt a moral imperative to abide by
Decedent‘s stated wishes, there was no legal duty to do so.
       Second, we hold that Ms. Mills‘s retention of property that she was legally entitled to
retain is not an injustice that will support a claim of unjust enrichment. As previously
discussed, the most significant requirement for a claim of unjust enrichment is that the
retention of the benefit is unjust. Freeman, 172 S.W.3d at 525. The retention of a benefit is
unjust for purposes of an unjust enrichment claim:
              [I]f the donor of the benefit acted under a mistake of fact or in
              misreliance on a right or duty, or the recipient of the benefit
              engaged in some unconscionable conduct, such as fraud,
              coercion, or abuse of a confidential relationship. The term
              ―unjustly‖ can mean illegally or unlawfully.
42 C.J.S. Implied Contracts § 9 (footnotes omitted). As previously discussed, Ms. Mills had
no legal duty to ensure that Appellant received any portion of property that passed to her as a
tenant by the entirety. Clearly, Ms. Mills did not act illegally or unlawfully in retaining
property that passed to her by operation of law. There is also no proof that Ms. Mills obtained
her interest in the tenancy by the entirety property by fraud, duress, or other inequitable
means, as would be required to impose a constructive trust. Myers v. Myers, 891 S.W.2d 216,
219 (Tenn. Ct. App. 1994) (requiring to impose a constructive trust that the property was
―obtained by fraud, duress or other inequitable means‖). Instead, she simply retained the
lawful benefit of her joint tenancy with Decedent. Accordingly, Appellant simply cannot
show that Ms. Mills‘s retention of the joint tenancy property was unjust.
        Finally, nothing in the record indicates that Appellant provided Ms. Mills with any
benefit. See Castelli, 910 S.W.2d at 427 (requiring as an element of a claim under quantum
meruit that ―the party seeking recovery must prove that it provided valuable goods and
services‖ to the opposing party). Surely, Ms. Mills received a benefit at Decedent‘s death of
all the couple‘s tenancy by the entirety property that passed to her by operation of law.
However, this property was never owned by Appellant and he has asserted no legal claim to it
prior to it vesting with Ms. Mills, other than Decedent‘s alleged non-binding deathbed
statements. Accordingly, it appears that Appellant‘s evidence is insufficient to prove that he
provided any goods, property, or other valuable benefit to Ms. Mills.
       Based on the foregoing, we conclude that the trial court did not err in granting
summary judgment dismissing Appellant‘s fourth cause of action. See Hill v. Lamberth, 73
S.W.3d at 136 (―Although the trial court granted summary judgment on the basis of
foreseeability, this Court may affirm the trial court's decision when rendered on different

                                              23
grounds.‖). Any issues regarding the expiration of the statute of limitations or laches are
pretermitted.
                                   Fifth Cause of Action
       In his fifth cause of action, Appellant generally recounts the relevant allegations
regarding Decedent‘s deathbed statements, the administration of the will, and Ms. Mills‘s
alleged assurances that the residuary trust would be funded. According to Appellant, Ms.
Mills has ―wrongfully asserted a claim of ownership to property which she held as trustee for
the Decedent or his successor, [Appellant].‖ As such, Appellant requests that a resulting trust
be imposed on assets equal to one-half Decedent‘s net assets at death.
        The Tennessee Supreme Court has described the purposes and characteristics of a
resulting trust as follows:
              The imposition of a resulting trust is an equitable remedy; the
              doctrine of resulting trust is invoked to prevent unjust
              enrichment. Such a trust is implied by law from the acts and
              conduct of the parties and the facts and circumstances which at
              the time exist and surround the transaction out of which it arises.
              Broadly speaking, a resulting trust arises from the nature or
              circumstances of consideration involved in a transaction
              whereby one person becomes invested with a legal title but is
              obligated in equity to hold his legal title for the benefit of
              another, the intention of the former to hold in trust for the latter
              being implied or presumed as a matter of law, although no
              intention to create or hold in trust has been manifested,
              expressly or by inference, and there ordinarily being no fraud or
              constructive fraud involved.
              While resulting trusts generally arise (1) on a failure of an
              express trust or the purpose of such a trust, or (2) on a
              conveyance to one person on a consideration from another—
              sometimes referred to as a ―purchase-money resulting trust‖—
              they may also be imposed in other circumstances, such that a
              court of equity, shaping its judgment in the most efficient form,
              will decree a resulting trust—on an inquiry into the
              consideration of a transaction—in order to prevent a failure of
              justice. However, the particular circumstances under which a
              resulting trust may arise varies from jurisdiction to jurisdiction.


                                              24
In re Estate of Nichols, 856 S.W.2d 397, 401 (Tenn. 1993) (quoting 76 Am.Jur.2d Trusts §
166, pp. 197–98 (1992)). According to this Court:
              ―The equitable power to establish a resulting trust applies with
              respect to both real and personal property.‖ Wardell v. Dailey,
              674 S.W.2d 293, 295 (Tenn.Ct.App.1984). Such trusts often
              arise when the law presumes the parties intended to create a
              resulting trust. Harwell [v. Watson], [No. E2003–01796–COA–
              R3–CV,] 2004 WL 1434505, at *3, 2004 Tenn.App. LEXIS
              399, at *6 [(Tenn. Ct. App. June 25, 2004)]. ―A resulting trust
              may be proven, and is typically proven, by parol evidence.‖
              Saddler [v. Saddler], 59 S.W.3d [96,] 99 [(Tenn. Ct. App.
              2000)] (citations omitted). ―However, when one attempts to
              create a resulting trust on the basis of parol evidence, such a
              trust must be shown by more than a mere preponderance of the
              evidence.‖ Wardell, 674 S.W.2d at 295 (citations omitted). The
              party alleging the existence of a resulting trust must prove its
              existence by clear and convincing evidence. Saddler, 59 S.W.3d
              at 99; Rowlett v. Guthrie, 867 S.W.2d 732, 735
              (Tenn.Ct.App.1993); Wardell, 674 S.W.2d at 295. “The
              testimony of a single, interested witness typically is
              insufficient to establish a resulting trust by clear, convincing,
              and irrefragable evidence.” Saddler, 59 S.W.3d at 99.
Story v. Lanier, 166 S.W.3d 167, 184 (Tenn. Ct. App. 2004) (emphasis added).
        Appellant has failed to provide sufficient evidence to meet the clear and convincing
standard of proof, as his evidence supporting his theory of resulting trust is supported by only
his testimony. See Story, 166 S.W.3d at 184 (indicating that more than the testimony of a
single interested witness is sufficient to establish a resulting trust). In his reply brief,
Appellant asserts that substantial evidence supports his request for a resulting trust in this
case, including his own affidavit, the Last Will and Testament of his opponent Ms. Mills, and
a trust created by her. Certainly, Appellant‘s affidavit contains allegations that Ms. Mills
made continuous assurances to him that she would create a trust for Appellant‘s benefit
representing one-half of Decedent‘s total assets at death. Appellant argues, however, that Ms.
Mills‘s will and her trust also support his theory of a resulting trust because they show that
Ms. Mills intended that portions of her property would pass to Appellant and his children at
her death. According to Appellant, these documents create an inference that Ms. Mills ―acted
upon her equitable duty to pass on jointly held assets – not just assets in the probate estate –
to Appellant consistent with [D]ecedent‘s deathbed wishes and with her representations to
Appellant.‖ We cannot agree that these documents support any assertion on Appellant‘s
                                              25
behalf that Ms. Mills had wrongfully asserted a claim over Decedent‘s property at his death.
Instead, they simply show that despite the fact that Ms. Mills received considerable property
from Decedent free from any claim by Appellant, she intended to provide for Appellant at her
death, much like she disclaimed her interest in certain property during the administration of
Decedent‘s estate. To infer anything more from these documents would be pure speculation.
Because these documents do not support Appellant‘s theory of recovery, we conclude that
Appellant‘s affidavit, standing alone, is insufficient to meet the clear and convincing
standard of proof required to prove a resulting trust. See also In re Estate of Cammack, No.
M1999-02382-COA-R3-CV, 2000 WL 1679492, at *7 (Tenn. Ct. App. Nov. 9, 2000)
(granting summary judgment, even in the face of two affidavits and a contract between the
parties that arguably provided support for the resulting trust). Accordingly, although we rely
on different grounds, the trial court‘s order granting summary judgment dismissing this cause
of action is also affirmed. See Hill v. Lamberth, 73 S.W.3d at 136. Any issues regarding the
expiration of the statute of limitations or laches are pretermitted.
                                        Conclusion
        The judgment of the Chancery Court of Shelby County is affirmed and this cause is
remanded to the trial court for all further proceedings as may be necessary and are consistent
with this Opinion. Costs of this appeal are taxed to Appellant, Robert W. Mills, and his
surety.




                                                  _________________________________
                                                  J. STEVEN STAFFORD, JUDGE




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