IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

August 26, 2014 Session

GREG PHILLIPS V. SOUTHERN HERITAGE BANK

Appeal from the Circuit Court for Bradley County

No. V13455 Hon. Larry Puckett, Judge

No. E2014-00222-COA-R3-CV-FILED-SEPTEMBER 25, 2014

This appeal concerns Plaintiff’s complaint against Southern Heritage Bank to recover funds

depleted from his account while he was incarcerated. Southern Heritage Bank filed a motion

for summary judgment, alleging that the checks used to deplete the account were signed by

Plaintiff’s mother, an authorized user, and that even if the checks were signed fraudulently,

Plaintiff failed to timely review his bank statements. The trial court granted the motion for

summary judgment. Plaintiff appeals. We affirm the decision of the trial court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D. SUSANO,

JR., C.J., and THOMAS R. FRIERSON, II, J., joined.

Greg Phillips, Cleveland, Tennessee, Pro Se.

Michael E. Jenne, Cleveland, Tennessee, for the appellee, Southern Heritage Bank.

OPINION

I. BACKGROUND

Greg Phillips(“Plaintiff”), along with his mother, Patricia Phillips(“Mother”), opened

the bank account at issue with Southern Heritage Bank (“Bank”) on May 16, 2011. Plaintiff

and Mother were designated as authorized users of the account. From January 2012 through

June 13, 2012, Plaintiff was incarcerated for various charges. Plaintiff did not inform Bank

of his incarceration. Upon Plaintiff’s release, he discovered that his bank account had been

closed due to insufficient funds in May 2012 and that his entire account had been depleted,
largely as a result of six checks that appeared to have been signed by Mother. Attesting that

his sister, Tracy Phillips Caldwell (“Sister”), had forged Mother’s signature, Plaintiff

requested the return of the funds. Bank refused Plaintiff’s request.

On June 11, 2013, Plaintiff filed suit, alleging that Bank was negligent in processing

payment for six checks, totaling $1,557.50, between February 3 and March 27 that bore

Mother’s name as the signatory. Plaintiff requested damages in the amount of $100,000,

reflecting the amount of the checks, overdraft fees, the alleged loss of an insurance policy

for failure to pay his premiums, other losses as a result of his account being closed without

his knowledge or consent, and punitive damages. Bank responded by denying wrongdoing

and alleging that Plaintiff’s negligence caused the damages at issue.

Bank filed a motion for summary judgment, asserting that Plaintiff’s claim must fail

because the checks at issue were signed by Mother, an authorized account user, and that

Plaintiff had violated his legal and statutory duty to timely review his bank statements and

provide notice of the alleged unauthorized signatures pursuant to Tennessee Code Annotated

section 47-4-406. In support of its motion, Bank attached affidavits from Patsy Locklear,

Marty Pearce, and Sister.

Ms. Locklear attested that Plaintiff failed to inform Bank of his incarceration and that

Bank processed six checks for payment that bore Mother’s name as signatory. She stated that

Plaintiff admitted that two of the six checks were written to Gilbert Real Estate for rent he

incurred while incarcerated. She asserted that all six checks were lawfully signed by Mother

and that Plaintiff had also given his debit card to an unauthorized user, who further depleted

his account in the amount of $282.43, in violation of his agreement with Bank. She provided

that the account had been overdrawn in the amount of $411.34 but that Plaintiff had not

provided any funds in fulfillment of the deficiency.

Mr. Pearce, a certified forensic document examiner, attested that “based upon a

reasonable degree of certainty within [his] profession of expertise as a handwriting expert”

that four of the six checks were signed by Mother. Likewise, he believed that the fifth check

was “more likely than not” signed by Mother. He conceded that the sixth check was of such

poor quality that he was unable to form a conclusion beyond his bare belief that the signature

“appear[ed] to be consistent” with the other signatures.

Sister attested that she had not signed the checks at issue but that the checks were

“most definitely” signed by Mother.

Plaintiff failed to respond to Bank’s motion for summary judgment. Following a

hearing, the trial court granted Bank’s motion forsummary judgment, finding that there were

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no genuine issues as to any material fact and that Bank was entitled to judgment as a matter

of law. Following the denial of post-trial motions, this timely appeal followed.

II. ISSUES

We consolidate and restate the issues raised on appeal by Plaintiff as follows:

A. Whether the trial court erred in granting the motion for summary judgment.

Bank also raised an issue for our consideration on appeal that we restate as follows:

B. Whether this court must affirm the trial court’s judgment as a result of

Plaintiff’s failure to comply with Rule 27 of the Tennessee Rules of Appellate

Procedure and Rule 6 of the Tennessee Court of Appeals.

III. STANDARD OF REVIEW

This action wasinitiated in 2013; therefore, the dispositive summary judgment motion

is governed by Tennessee Code Annotated section 20-6-101, which 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.

A trial court’s decision to grant a motion for summary judgment presents a question

of law, which we review de novo with no presumption of correctness. See City of Tullahoma

v. Bedford Cnty., 938 S.W.2d 408, 417 (Tenn. 1997). We must view all of the evidence in

the light most favorable to the nonmoving party and resolve all factual inferences in the

nonmoving party’s favor. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008);

Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim v. Knox Cnty. Bd of Educ.,

2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed facts support only one conclusion, then

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the court’s summary judgment will be upheld because the moving party was entitled to

judgment as a matter of law. See White v. Lawrence, 975 S.W.2d 525, 529 (Tenn. 1998);

McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

IV. DISCUSSION

A. & B.

As a threshold issue, we must first address Bank’s assertion that Plaintiff failed to

comply with Rule 27 of the Rules of Appellate Procedure and Rule 6 of the Tennessee Court

of Appeals. We agree that Plaintiff failed to comply with the majority of the requirements

contained in Rule 27(a) of the Tennessee Rules of Appellate Procedure and presented a

rambling and, at times, incoherent brief. Furthermore, by not providing any relevant citations

to the record, Plaintiff has failed to comply with Rule 6 of the Tennessee Court of Appeals

which states in part:

(b) No complaint of or reliance upon action by the trial court will be

considered on appeal unless the argument contains a specific reference to the

page or pages of the record where such action is recorded. No assertion of fact

will be considered on appeal unless the argument contains a reference to the

page or pages of the record where evidence of such fact is recorded.

Tenn. Ct. App. R. 6(b). Failure to comply with these rules may result in waiver of the issues

presented for review by this court. Bean v. Bean, 40 S.W.3d 52, 54-55 (Tenn. Ct. App.

2000). We believe that these shortcomings in the brief are due, in part, to Plaintiff’s status

as a pro se litigant. This court “must not excuse pro se litigants from complying with the

same substantive and procedural rules that represented parties are expected to observe.”

Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003) (citing Edmundson v. Pratt, 945

S.W.2d 754, 755 (Tenn. Ct. App. 1996); Kaylor v. Bradley, 912 S.W.2d 728, 733 n. 4 (Tenn.

Ct. App. 1995)). However, “[t]he courts give pro se litigants who are untrained in the law

a certain amount of leeway in drafting their pleadings and briefs.” Id. Accordingly, we will

proceed with our review of the issue presented on appeal.

Plaintiff appeals the summary judgment dismissal of his complaint. Bank responds

that the trial court did not err in granting its motion for summary judgment because Plaintiff

failed to respond to that motion. Bank asserts that there were no genuine issues of material

fact when Mother clearly signed the checks at issue and when Plaintiff failed to timely

review his bank statements as required by Tennessee Code Annotated section 47-4-406.

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Our review of the record establishes that the trial court did not err in finding that the

evidence offered by Plaintiff was insufficient to create a genuine issue of material fact

regarding an essential element of his claim, namely whether the checks at issue were

fraudulent. Bank’s affidavits established that Mother signed at least four of the six checks,

that she “more likely than not” signed a fifth check, and that the signature on a sixth check

was “consistent” with her other signatures. Likewise, two of the six checks were written for

Plaintiff’s benefit in fulfillment of his rental obligations to Gilbert Real Estate. Plaintiff

failed to offer any response to Bank’s affirmative evidence.

Moreover, Plaintiff was statutorily precluded from arguing that the signatures on the

checks were unauthorized pursuant to Tennessee Code Annotated section 47-4-406, which

provides, in pertinent part,

(a) A bank that sends or makes available to a customer a statement of account

showing payment of items for the account shall either return or make available

to the customer the items paid or provide information in the statement of

account sufficient to allow the customer reasonably to identify the items paid.

The statement of account provides sufficient information if the item is

described by item number, amount, and date of payment.

* * *

(c) If a bank sends or makes available a statement of account or items pursuant

to subsection (a), the customer must exercise reasonable promptness in

examining the statement or the items to determine whether (i) any payment

was not authorized because of an alteration of an item or an unauthorized

signature purportedly made by or on behalf of the customer, or because the

payment was made in an incorrect amount, or (ii) a deposit is missing or has

been incorrectly credited. If, based on the statement or items provided, the

customer should reasonably have discovered the unauthorized payment or

missing or incorrectly credited deposit, the customer must promptly notify the

bank of the relevant facts.

(d) If the bank proves that the customer failed, with respect to an item or

deposit, to comply with the duties imposed on the customer by subsection (c),

the customer is precluded from asserting against the bank:

(1) Such payment or missing or incorrectly credited deposit, if

the bank also proves that it suffered a loss by reason of the

failure; and

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(2) the customer’s unauthorized signature or alteration by the

same wrongdoer on any other item paid in good faith by the

bank if the payment was made before the bank received notice

from the customer of the unauthorized signature or alteration

and after the customer had been afforded a reasonable period of

time, not exceeding thirty (30) days, in which to examine the

item or statement of account and notify the bank.

(e) If the customer proves that the bank did not pay the item in good faith, the

preclusion under subsection (d) does not apply.

(Emphasis added). The checks at issue were processed for payment between February 2012

and March 2012, and the relevant bank records were mailed to Plaintiff’s designated address.

Yet, Plaintiff did not notify Bank of the alleged fraudulent activity until sometime in June

2012, well after the account had been closed due to insufficient funds in May 2012. We

acknowledge that Plaintiff was incarcerated during that time; however, he failed to inform

Bank of his incarceration or provide an avenue in which to notify him while incarcerated.

In consideration of the foregoing, we conclude that the trial court did not err in granting the

motion for summary judgment when Bank was entitled to judgment as a matter of law

because no genuine issues of material fact remained. In so holding, we acknowledge that the

depletion of Plaintiff’s account while he was incarcerated likely caused financial difficulties

upon his release. We sympathize with Plaintiff’s plight. However, we cannot afford him the

relief he desires given the record before this court.

V. CONCLUSION

The judgment of the trial court is affirmed. This case is remanded to the trial court

pursuant to applicable law for collection of costs assessed below. Costs of the appeal are

taxed to the appellant, Greg Phillips.

______________________________________

JOHN W. McCLARTY, JUDGE

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