                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                  October 15, 2010 Session1

                       IN RE ESTATE OF ELOISE J. STOREY

                   PEGGIE SHERRILL HUBER
                             v.
       LAWRENCE G. YOHANEK, CPA, A/K/A LARRY G. YOHANEK,
          SHARRON S. YOHANEK, AND JOHN GARY STOREY

                  An Appeal from the Probate Court for Shelby County
                       No. D-0552     Karen D. Webster, Judge
                        _________________________________

                   No. W2010-00819-COA-R3-CV - Filed May 31, 2011


This lawsuit was filed by the decedent’s daughter against other family members alleging
undue influence, conversion, breach of fiduciary duty, and civil conspiracy. After the
decedent suffered a stroke, the family members, as attorney in fact and signatory on the
decedent’s bank accounts, made gifts from the decedent’s assets to themselves and to other
family members. After the decedent died, the plaintiff daughter filed this lawsuit, alleging
that the defendant family members wrongfully depleted the decedent’s assets during her
lifetime so as to deprive the plaintiff of her specific bequest in the decedent’s will. The
defendants filed a motion for partial summary judgment on various grounds. The trial court
granted in part and denied in part the defendants’ motion finding, inter alia, that the plaintiff
did not submit evidence to support several of her claims, and that several claims were barred
by the statute of limitations. The Plaintiff now appeals. On appeal, we apply the Tennessee
Supreme court’s revised analytical framework for summary judgment motions, requiring the
defendant movants to either conclusively establish facts supporting an affirmative defense
or negate an essential element of the plaintiff’s claim. Applying this standard, we affirm in
part, reverse in part, and remand.




1
 After oral argument in this appeal, as detailed in the body of this Opinion, the appeal was held in
abeyance while the parties secured a final, appealable judgment.
          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court is
                    Affirmed in Part, Reversed in Part, and Remanded

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which D AVID R. F ARMER, J., and
J. S TEVEN S TAFFORD, J., joined.

John D. Horne, Memphis, Tennessee, for the Plaintiff/Appellant, Peggie Sherrill Huber2

James M. Hivner, Memphis, Tennessee, for the Defendants/Appellees, Lawrence G.
Yohanek, CPA a/k/a Larry G. Yohanek, Sharron S. Yohanek, and John Gary Storey

                                                  OPINION

                                    F ACTS AND P ROCEEDINGS B ELOW

                                                 Background

John T. Storey (“Mr. Storey”) and Decedent Eloise J. Storey (“Mrs. Storey”) had three
children, Plaintiff/Appellant Peggie Sherrill Huber (“Plaintiff”), Defendant/Appellee Sharron
S. Yohanek (“Mrs. Yohanek”), and Defendant/Appellee John Gary Storey (“Mr. John G.
Storey”). Mrs. Yohanek is married to Defendant/Appellee Lawrence G. Yohanek, a/k/a
Larry Yohanek (“Mr. Yohanek”). Mr. Yohanek is a certified public accountant.

In the 1970s, Mr. and Mrs. Storey owned and operated a successful construction company
known as S&E Construction Company. The construction company provided a good living
for the Storeys, and they were financially comfortable enough to give substantial gifts of cash
and other things from time to time to each of their children. At some point, the Storeys’ son-
in-law, Mr. Yohanek, became the accountant for the Storeys’ construction company.

Mr. Storey died in November 1993. The construction company continued in business after
his death, and Mr. Yohanek continued to assist Mrs. Storey with the company’s finances.3
Mr. Yohanek also advised Mrs. Storey in her personal financial affairs.

On May 6, 1998, Mrs. Storey executed a Durable Power of Attorney. It named her son-in-
law, Mr. Yohanek, as her attorney in fact.



2
    Mr. Horne was trial counsel for only a portion of the trial court proceedings.
3
    According to the Plaintiff’s complaint, the business was liquidated and terminated sometime in 1998.

                                                       -2-
On the same date, Mrs. Storey executed her Last Will and Testament. It named Mr. Yohanek
as the executor of the will. Generally, Mrs. Storey’s will provided that all of her personal
property would go to her children in equal shares, and that all notes evidencing outstanding
loans to her children would be canceled. Under Mrs. Storey’s will, the residual estate was
to be divided into separate trusts of equal value for each of her children, with Mr. Yohanek
to serve as trustee for the trusts.

In the will, Mrs. Storey also made specific bequests to her each of her three children. To
Mrs. Yohanek, she bequeathed real property located in Panola County, Mississippi. To Mr.
John G. Storey, she bequeathed real property in Tunica County, Mississippi, which was used
as a fishing camp. To the Plaintiff, she bequeathed the cash sum of $150,000. The “specific
bequest” section of the will included Mrs. Storey’s comment that the distribution was her
“effort at treating my children equally and I hope that they are pleased and satisfied with the
division of my property.” 4

Several years later, in February and March 2001, Mrs. Storey suffered a massive stroke and
other smaller strokes that left her physically disabled. The record indicates that, after the
strokes, Mrs. Storey required 24-hour assistance with her physical needs. After this, pursuant
to Mrs. Storey’s power of attorney, Mr. Yohanek handled her finances and assets as her
attorney in fact. At some point, Mrs. Yohanek became a co-signator on Mrs. Storey’s
checking account at First Tennessee Bank. Thus, both Mr. and Mrs. Yohanek were
authorized to write checks from Mrs. Storey’s bank account.

After Mrs Storey’s stroke, Mr. Yohanek wrote numerous checks from Mrs. Storey’s checking
account. Some were checks written in the normal course of assisting Mrs. Storey with her
financial affairs. Some were checks written to Mrs. Storey’s three children – the Plaintiff,
Mrs. Storey, and Mr. John G. Storey – and other relatives. During this time period, no
objection was made by any of the three children to these distributions.

On March 4, 2006, Mrs. Storey died at the age of eighty. On March 30, 2006, Mr. Yohanek
filed a petition in the Probate Court of Shelby County to admit to probate Mrs. Storey’s Last
Will and Testament. On that day, the trial court entered an order admitting the will to
probate and, in accordance with the terms of the will, appointing Mr. Yohanek as the
executor of the estate.

Several months later, on July 12, 2006, the Plaintiff filed a petition in the trial court below
to require Mr. Yohanek to file an accounting and to remove Mr. Yohanek as the executor of


4
 Mrs. Storey also bequeathed certain real property to Mr. Michael Todd Hartline. That bequest is not at issue
in this appeal.

                                                    -3-
Mrs. Storey’s estate. In her petition, the Plaintiff alleged that, during Mrs. Storey’s lifetime,
Mr. Yohanek breached his fiduciary duty to Mrs. Storey by making unauthorized gifts from
her assets to himself and to other family members, and also by using her VISA credit card
for his own personal living expenses. Based on her allegations, the Plaintiff asked the trial
court to temporarily remove Mr. Yohanek as the executor of the estate, and to appoint an
independent executor until a hearing could be held on the Plaintiff’s petition. The petition
also sought “punitive damages” against Mr. Yohanek in the amount of $250,000. After a
hearing, the Probate Court dismissed this first petition, finding that it alleged no grounds to
remove Mr. Yohanek as executor, and that the relief requested against Mr. Yohanek had not
been properly pled.

On June 4, 2007, Mr. Yohanek filed three sets of amended federal and state gift tax returns
on behalf of the estate. Two reflected gifts made to the Yohaneks either by Mrs. Storey or
on her behalf, and the third reflected a gift by Mrs. Storey to the Plaintiff. The first amended
gift tax return for Mrs. Storey’s estate was for 1999; it was filed in order to list a gift of
$150,000 to Mrs. Yohanek that was not reported in Mrs. Storey’s original 1999 tax return.
The record indicates that in 1999 Mrs. Yohanek in fact wrote herself a check in this amount
from Mrs. Storey’s bank account to buy herself a house. The second amended tax return Mr.
Yohanek filed was for 2003, listing gifts of jewelry made by Mrs. Storey or on Mrs. Storey’s
behalf to Mrs. Yohanek and the Yohanek children.

In addition, Mr. Yohanek filed an amended gift tax return for 2001, listing a gift allegedly
made to the Plaintiff. The gift listed was not actually a direct gift, but rather was the value
of a loan that was forgiven. In 1981, Mr. and Mrs. Storey loaned the Plaintiff $135,000 to
buy a home. The Plaintiff made monthly payments on the note, but the payments did not
cover the full amount of principal and interest due on the loan. In 2001, Mrs. Storey
cancelled the note. The amended tax return filed by Mr. Yohanek valued the amount of the
unpaid compounded interest and principal due on the Plaintiff’s note over a twenty-year
period at $652,000. The amended return showed that Mrs. Storey’s estate was required to
pay taxes, penalties, and interest on this gift of $49,384 to the IRS and $88,587 to the
Tennessee Department of Revenue.

                                           Lawsuit

On September 10, 2007, the Plaintiff filed the instant lawsuit as an adversarial proceeding
under the docket number of the estate. The complaint was headed: “Complaint To Set Aside
the Transfers Resulting From Undue Influence, Breach of Fiduciary Duty, And/Or




                                               -4-
Conversion And For Damages Resulting From Tortious Interference With Inheritance.” 5 It
named as defendants Mr. Yohanek, Mrs. Yohanek, and Mr. John G. Storey (collectively,
“Defendants”).

The complaint asserted claims against the Defendants in two capacities, first by the Plaintiff
as a personal representative of the estate, and second by the Plaintiff as a beneficiary of Mrs.
Storey’s estate. In her capacity as the estate’s personal representative, the Plaintiff sought
damages based on theories of undue influence, breach of fiduciary duty, conversion, and civil
conspiracy.6 She alleged that, after Mrs. Storey became incompetent and Mr. Yohanek began
acting as her attorney in fact, the Defendants gave themselves unauthorized and/or excessive
gifts out of Mrs. Storey’s bank account and used Mrs. Storey’s VISA credit card for their
own benefit, not for the benefit of Mrs. Storey. She claimed that these gifts were
disproportionate and inconsistent with Mrs. Storey’s past patterns of giving, in which she
treated her children equally. One particular gift noted in the petition was the $150,000 check
that Mrs. Yohanek wrote to herself from Mrs. Storey’s checking account in 1999, which was
not disclosed to the Plaintiff until Mr. Yohanek filed the amended gift tax returns on June 4,
2007. The Plaintiff also alleged that between 2001 and 2005, the Defendants wrote checks
to Mr. John G. Storey from Mrs. Storey’s bank account totaling over $120,000, as though
Mr. John G. Storey were continuing to work at S&E Construction, when in fact the company
had been liquidated by that time. In addition, the Plaintiff alleged that between 1998 and
2006, Mr. Yohanek withdrew over $2 million from Mrs. Storey’s IRA and annuity accounts,
withdrawals that were so excessive that Mrs. Storey was required to pay large penalties. The
Plaintiff asserted that the Defendants “acted together and in concert with Mr. Yohanek in the
spending of Mrs. Storey’s assets, while she was incompetent, for their separate purposes and
in causing unauthorized gifts to be made . . . .” The Plaintiff asked the trial court to set aside
the unauthorized transfers made from Mrs. Storey’s assets and require the Defendants to pay
damages to the estate and to “disgorge their ill-gotten gains.”




5
 For clarification, we note that, despite the complaint’s heading listing tortious interference with inheritance
as a claim, the Plaintiff’s complaint did not actually allege this tort. Presumably this is because Tennessee
does not recognize the tort of tortious interference with inheritance. See Stewart v. Sewell, 215 S.W.3d 815,
827 (Tenn. 2007).
6
 Generally, civil actions to recover assets taken from the decedent by fraud or deceit are exclusive to the
person formally representing the estate, such as the executor or administrator, absent a “compelling showing”
that such representation is not adequate. See Ware v. McKeithan (In re Estate of Hendrickson), No.
M2008-01332-COA-R9-CV, 2009 WL 499495, at *5-6 (Tenn. Ct. App. Feb. 25, 2009). In this case, the
Plaintiff urged the trial court to permit her to represent the estate in bringing this action, because Mr.
Yohanek is a defendant and would not file such an action against himself. The trial court granted this
request. The Defendants do not challenge the Plaintiff’s standing on appeal.

                                                      -5-
In her capacity as a beneficiary of the estate, the Plaintiff alleged that the Defendants
breached their fiduciary duties to Mrs. Storey’s estate. Specifically, she argued that Mr.
Yohanek, as the executor, breached his fiduciary duty to the estate by failing to properly
administer the estate. She asserted that Mr. Yohanek (1) failed to include in the assets of the
estate certain items of personal property that had been owned by Mrs. Storey, (2) concealed
substantial funds from Mrs. Storey’s accounts that had been given to Mrs. Storey’s children
in excess of his authority, (3) made false representations that Mrs. Storey had given jewelry
to Mrs. Yohanek and their children, so consequently Mr. Yohanek failed to include this
jewelry in the assets of the estate, (4) failed to account for his excessive withdrawals from
Mrs. Storey’s IRA and annuity accounts, and (5) filed untimely gift tax returns, which caused
the estate to pay unnecessary penalties and interest, and thereby depleted the remaining cash
in the estate.7 The complaint did not describe any actions of Mrs. Yohanek and Mr. John G.
Storey that constituted a breach of fiduciary duty to the estate, so it appeared that their
claimed liability to the estate was based solely on their alleged conspiracy with Mr. Yohanek
to breach his fiduciary duty to the estate.8 As a result of this conduct, the Plaintiff alleged,
the estate did not have sufficient funds from which to pay the Plaintiff her specific bequest
of $150,000. Therefore, the Plaintiff argued, she is “entitled to recover a judgment against
Mr. Yohanek, Mrs. Yohanek and Mr. [John G.] Storey, in order to replenish the Estate and
to carry out the testamentary wishes of Mrs. Storey.” She further alleged that Mr. Yohanek
should be held liable to the estate for actual, consequential, and exemplary damages, and that
he should be removed as executor of the estate without compensation.

On October 23, 2007, the Defendants filed a motion to dismiss or for a more definite
statement. The motion to dismiss asserted lack of standing, lack of subject matter
jurisdiction, and equitable estoppel. In addition, the Defendants argued that some of the
claims in the Plaintiff’s petition were barred by the applicable three-year statute of




7
    These actions are described in some detail in paragraph eighteen of the Plaintiff’s complaint.
8
 This construction is based on a liberal reading of the complaint. The complaint does not assert a basis on
which either Mrs. Yohanek or Mr. John G. Storey had a duty to Mrs. Storey’s estate, nor does it identify any
acts of these two Defendants taken after the death of the Decedent that are allegedly a breach of any such
duty. While an executor owes the estate the duty to marshal and collect the assets of the estate within a
reasonable time, to discharge his statutory duties in a timely manner, and to close the estate as quickly as
possible, the beneficiaries of the estate do not have such duties. See Estate of Doyle v. Hunt, 60 S.W.3d 838,
844-45 (Tenn. Ct. App. 2001) (describing an executor’s duties to the estate). Therefore, absent any
allegation that Mrs. Yohanek or Mr. John G. Storey have a fiduciary duty to the estate, we read the Plaintiff’s
complaint as alleging that these two Defendants conspired with Mr. Yohanek in his breach of fiduciary duty
to the estate.

                                                       -6-
limitations, contained in Tennessee Code Annotated § 28-3-105.9 On April 8, 2008, the
Plaintiff filed her first amended complaint, which was similar to the original complaint.

Discovery ensued. Depositions were taken, and documents were produced. On June 27,
2008, the Plaintiff filed a subpoena duces tecum for the records of Michael Koplon, M.D.
(“Dr. Koplon”), Mrs. Storey’s treating physician for a number of years prior to her death.
The subpoena sought Mrs. Storey’s medical records for the time period from 1998 through
2006. However, in response to the subpoena, only Mrs. Storey’s records from the years 2004
through 2006 were produced; no records predating 2004 were produced. At that time, the
Plaintiff did not make further efforts to obtain Mrs. Storey’s records prior to 2004.

On March 19, 2009, Mr. Yohanek filed a petition with the trial court, seeking instructions
as to the alleged gift of $652,000 made to the Plaintiff in 2001 that was the subject of one of
the June 4, 2007 amended tax returns Mr. Yohanek filed on behalf of Mrs. Storey’s estate.
In his petition, Mr. Yohanek explained that, based on information obtained in the Plaintiff’s
deposition, it appeared that there was no longer a basis for filing the amended 2001 gift tax
return. The Plaintiff objected, arguing that Mr. Yohanek’s request for findings and
instructions was unnecessary and was in reality an attempt to get the trial court to prejudge
the case. On May 1, 2009, the trial court entered an order authorizing Mr. Yohanek to amend
the 2001 gift tax return and request a refund to the estate of the gift tax paid.

On August 17, 2009, the Defendants filed a second motion to dismiss the Plaintiff’s
complaint and/or for partial summary judgment. The motion to dismiss asserted that (1) the
Plaintiff did not have standing to file the complaint, (2) her claims were barred by the three-
year statute of limitations in Section 28-3-105, (3) her claims were barred under the doctrine



9
    Section 28-3-105 provides:

           The following actions shall be commenced within three (3) years from the accruing of the
           cause of action:

                   (1) Actions for injuries to personal or real property;

                   (2) Actions for the detention or conversion of personal property; and

                   (3) Civil actions based upon the alleged violation of any federal or state
                   statute creating monetary liability for personal services rendered, or
                   liquidated damages or other recovery therefor, when no other time of
                   limitation is fixed by the statute creating such liability.

T.C.A. § 28-3-105 (2000).

                                                       -7-
of equitable estoppel, (4) the trial court did not have subject matter jurisdiction to hear the
complaint, and (5) the complaint failed to state a claim for relief based on civil conspiracy.

The motion for partial summary judgment addressed some of the Plaintiff’s claims against
some of the Defendants. Specifically, the Defendants argued that summary judgment should
be granted to Mrs. Yohanek and Mr. John G. Storey on the claim of undue influence, because
the Plaintiff had no evidence indicating that either of these Defendants had a confidential
relationship with Mrs. Storey. Similarly, as to the claim of breach of fiduciary duty, the
Defendants sought summary judgment as to Mrs. Yohanek and Mr. John G. Storey because
neither had a confidential relationship with Mrs. Storey, nor were they fiduciaries as to Mrs.
Storey.10 The Defendants sought summary judgment in favor of Mr. John G. Storey on the
claim of conversion, because the Plaintiff had submitted no evidence to show that he
appropriated any personal property of Mrs. Storey for his own use and benefit.11 Finally, the
Defendants made a “catch-all” motion for partial summary judgment, requesting that they be
granted summary judgment on “any other theories of recovery” that may have been asserted
against them in the Plaintiff’s complaint.

Thus, the Defendants’ motion sought either partial summary judgment or outright dismissal
of the entire complaint. In support of the motion, the Defendants submitted a statement of
undisputed material facts, along with affidavits by the Defendants. Each affidavit averred,
inter alia, that Mrs. Storey “had the ability to manage her financial affairs, and did so until
her death, with the exception of a brief period following her stroke in 2001, during which she
relied on the assistance of [Larry G. Yohanek].” The affidavits asserted generally that all
transactions or transfers were done at the request or direction of Mrs. Storey.

On September 1, 2009, the Plaintiff filed a response to the Defendants’ motion. The Plaintiff
argued that her claims should not be dismissed based on the three-year statute of limitations,
because she did not discover the Defendants’ wrongful acts until after her mother’s death,
and her complaint was filed within three years after her discovery of the wrongdoing. She
further asserted that the civil conspiracy claims should not be dismissed, because her
complaint as a whole established all of the elements of those claims. In response to the
motion for partial summary judgment, the Plaintiff argued that genuine issues of material fact
existed, and that the Defendants were not entitled to judgment as a matter of law. In support,
the Plaintiff submitted her own affidavit, portions of deposition testimony of the Defendants,


10
  The Defendants did not specifically seek summary judgment in favor of Mr. Yohanek on the claims of
undue influence or breach of fiduciary duty, either as Mrs. Storey’s attorney in fact or as the executor of her
estate.

11
     The Defendants did not seek summary judgment in favor of Mr. or Mrs. Yohanek on the conversion claim.

                                                     -8-
and exhibits to those depositions. The exhibits included copies of checks written by the
Defendants after Mr. Yohanek was granted power of attorney, and ledger sheets itemizing
Mrs. Storey’s expenses during the relevant time period. In response to the Defendants’
Statement of Undisputed Facts, the Plaintiff denied that her mother was capable of managing
her own affairs after her stroke in 2001, and she claimed that Mr. Yohanek and Mrs.
Yohanek “took total control of her affairs in March 2001.”12 The Plaintiff’s affidavit referred
to her response to the Defendants’ Statement of Undisputed Facts. The Plaintiff asserted that
Mrs. Yohanek had a confidential relationship with Mrs. Storey because Mrs. Yohanek was
a signatory on Mrs. Storey’s bank account. The Plaintiff submitted copies of checks and
VISA statements showing many purchases by the Defendants between 2001 and 2003 that
were for the Defendants’ personal benefit, made with checks from Mrs. Storey’s checking
account or with Mrs. Storey’s VISA card.

On September 23, 2009, the trial court heard oral argument from the parties on the motion
to dismiss and/or for partial summary judgment.13 The trial court took those motions under
advisement. In the same hearing, the trial court also heard several motions in limine filed by
the parties.

The day after the hearing, on September 24, 2009, the Defendants filed a motion in limine
to exclude the medical records of Dr. Koplon. The Defendants pointed out that the Plaintiff
had not designated Dr. Koplon or any other expert to testify as to Mrs. Storey’s capacity,
treatment, or condition. Therefore, they argued, the records of Dr. Koplon were not
admissible because they were without foundation, they were not the best evidence of Mrs.
Storey’s capacity, and the probative value of those records was outweighed by their
prejudicial effect.

                                           Trial Court’s Decision

On November 13, 2009, the trial court issued a lengthy oral ruling on the Defendants’ motion
to dismiss and/or for partial summary judgment and on the motions in limine. The trial
court’s oral ruling was incorporated by reference into its written order.

The trial court granted in part and denied in part the Defendants’ motion to dismiss or for
partial summary judgment. As to the motion to dismiss, the trial court first denied the motion



12
 The Plaintiff’s response did not include any of Mrs. Storey’s medical records or any other medical
evidence.
13
     A transcript of that hearing is not included in the appellate record.

                                                        -9-
on the grounds of standing, equitable estoppel, and subject matter jurisdiction.14 It further
held that the three-year statute of limitations in Section 28-3-105 was applicable to the claims
brought by the Plaintiff as a personal representative for Mrs. Storey. The trial court reasoned
that the cause of action began to accrue “when [Mrs. Storey] discovered or should have
discovered the alleged wrongful acts.” Because the Plaintiff offered no proof regarding
when Mrs. Storey learned or received any notice of any wrongful acts, the trial court held that
“the three-year statute of limitations began at the earliest point prior to [Mrs. Storey’s] death
. . . . This point would have been three years before her death or March 4, 2003.” Therefore,
the trial court held, the Plaintiff’s claims were limited to allegedly wrongful conduct that
occurred after March 4, 2003, three years before the day Mrs. Storey died. The trial court
added that “all the alleged wrongful acts that occurred after the decedent’s death fall within
the three-year statute of limitation as alleged and admitted by the parties.”

The trial court next addressed the Defendants’ motion for partial summary judgment.
Initially, the trial court found that, for purposes of the motion, there were no material facts
in dispute. With respect to Plaintiff’s claim of undue influence, the trial court held that the
Plaintiff was required to show that each of the Defendants had a confidential relationship
with Mrs. Storey. Because the Plaintiff did not submit sufficient evidence to establish that
either Mrs. Yohanek or Mr. John G. Storey had a confidential relationship with Mrs. Storey,
the trial court granted summary judgment in favor of these Defendants on the claim of undue
influence.15

The trial court also granted summary judgment in favor of all of the Defendants on the
Plaintiff’s claim that they breached their fiduciary duties to Mrs. Storey during her lifetime.


14
  The Defendants argued that the probate court lacked subject matter jurisdiction to adjudicate the tort claims
brought by the Plaintiff. The subject matter jurisdiction of the probate court was not raised as an issue on
appeal, but we must be satisfied that such subject matter jurisdiction exists. The probate court is a court of
limited jurisdiction and does not ordinarily have jurisdiction over tort claims. See Wiley v. Williams, No.
E2005-02518-COA-R3-CV, 2006 WL 929264, at *5 (Tenn. Ct. App. Apr. 10, 2006); Cannon v. Collier, No.
88-76-II, 1988 WL 85356, at *1 (Tenn. Ct. App. Aug. 17, 1988). In this case, however, the Plaintiff stands
in the shoes of the executor for the claims brought as a personal representative for the estate in an effort to
marshal and collect assets of the estate. See Ware, 2009 WL 499495, at *5. The remaining claims were
brought by the Plaintiff in her capacity as a beneficiary of the estate for the Defendants’ breach of their
fiduciary duty to the estate. The probate court has the power to address such claims. See T.C.A. § 16-16-107
(2009); but see Roll v. Edwards, 805 N.E.2d 162, 168 (Ohio Ct. App. 2004) (finding that the probate court
lacked jurisdiction over a claim for “intentional interference with inheritance”).
15
  Though the Defendants did not seek summary judgment on the undue influence claim as to Mr. Yohanek,
the trial court noted that Mr. Yohanek’s status as Mrs. Storey’s attorney in fact, coupled with other
circumstances, established a presumption of undue influence and defeated summary judgment as to Mr.
Yohanek. The Plaintiff has since voluntarily dismissed the undue influence claims against Mr. Yohanek.

                                                     -10-
As to Mrs. Yohanek and Mr. John G. Storey, the trial court held that summary judgment was
proper because, again, the Plaintiff proffered insufficient evidence of a confidential or other
fiduciary relationship existed between Mrs. Storey and either of those Defendants. As to Mr.
Yohanek, the trial court recognized that he had a fiduciary responsibility as Mrs. Storey’s
attorney in fact, but noted that the Defendants’ affidavits all asserted that, except during a
short period after her stroke, Mrs. Storey was capable of managing her financial affairs.
Finding that the Plaintiff offered no evidence to rebut this claim, i.e., evidence showing that
Mrs. Storey was not capable of managing her own affairs, summary judgment was granted
to Mr. Yohanek on this breach of fiduciary duty claim as well. The trial court did not address
the claim brought by the Plaintiff, as a beneficiary, against Mr. Yohanek, as the executor of
the estate, based on his alleged breach of fiduciary duty in the administration of Mrs. Storey’s
estate.

With respect to conversion, the trial court granted summary judgment in favor of Mr.
Yohanek and Mr. John G. Storey, because the evidence submitted by the Defendants negated
elements of the claim of conversion, and because the Plaintiff did not submit sufficient
evidence to prove the elements of her claim. The trial court indicated that Mrs. Yohanek
could not be held to have converted funds from Mrs. Storey’s checking account, because
Mrs. Yohanek was a signatory on that account, and “[s]he could not have converted her own
funds.” However, the trial court denied summary judgment to Mrs. Yohanek on the
conversion claim to the extent that Mrs. Yohanek used Mrs. Storey’s VISA credit card after
Mrs. Storey’s death.16

Although the Defendants asserted all of the conspiracy claims should have been dismissed
on the face of the complaint, the trial court dismissed the claim for a different reason. It
granted the Defendants summary judgment on the allegations of conspiracy because the
Plaintiff offered no proof that the Defendants acted in concert together to accomplish any of
the allegedly unlawful acts.

Finally, the trial court ruled on the pending motions in limine. Pertinent to this appeal, the
trial court granted the Defendants’ motion to exclude Dr. Koplan’s medical records.

Thus, the trial court (1) dismissed all causes of action based on alleged wrongful acts of the
Defendants occurring prior to March 4, 2003, pursuant to Section 28-3-105; (2) granted
summary judgment in favor of Mr. Yohanek on claims of breach of fiduciary duty as Mrs.
Storey’s attorney in fact, conversion, and civil conspiracy, but declined to grant summary


16
  The trial court did not explicitly grant summary judgment in favor of Mrs. Yohanek on the conversion
claim as it related to the checks Mrs. Yohanek wrote from her joint checking account with the decedent, but
this ruling could be implied from the totality of the court’s decision.

                                                   -11-
judgment in favor of Mr. Yohanek on the claim of undue influence; (3) granted summary
judgment in favor of Mrs. Yohanek on the claims of breach of fiduciary duty, undue
influence, and civil conspiracy, but denied summary judgment in favor of Mrs. Yohanek on
the claim of conversion as to charges made to Mrs. Storey’s VISA credit card after Mrs.
Storey’s death; (4) granted summary judgment in favor of Mr. John G. Storey on all claims
for relief; and (5) excluded from trial Dr. Koplon’s medical records on Mrs. Storey.

On December 16, 2009, the trial court entered its written order incorporating the oral ruling
by reference. The trial court certified the order as final pursuant to Rule 54.02 of the
Tennessee Rules of Civil Procedure.

        Plaintiff’s Motion to Alter or Amend and Motion to Compel Production

On January 14, 2010, the Plaintiff filed two motions, a motion to alter or amend or to set
aside the December 16, 2009 judgment pursuant to Rules 59 and 60 of the Tennessee Rules
of Civil Procedure, and also a motion to compel production of medical records of Dr.
Koplon. The basis of the Plaintiff’s motion to alter or amend or set aside was her contention
that she had “located additional facts calling into question whether the Deceased’s mental
competence existed at the time of the transfers . . . .” She indicated that some of Dr.
Koplon’s medical records regarding Mrs. Storey’s physical and mental condition had been
withheld from her during discovery. She sought relief from the trial court’s judgment in
order to obtain those records on the presumption that they would establish Mrs. Storey’s
incompetency and thus show that the three-year statute of limitations should have been tolled
during Mrs. Storey’s incompetence. Even if Mrs. Storey were not found to have been
incompetent, the Plaintiff asserted, the three-year statute of limitations should have been
tolled as to the 1999 gift of $150,000 to Mrs. Yohanek, because that gift was fraudulently
concealed until Mrs. Storey’s death.17 The Plaintiff also argued that the trial court erred in
concluding that Mrs. Yohanek could not be held liable for conversion of the funds in Mrs.
Storey’s bank account because she was a signatory on Mrs. Storey’s account.

In support of her motions, the Plaintiff submitted the medical records of Dr. Koplon that had
previously been produced in discovery, namely, Mrs. Storey’s medical records from 2004
until Mrs. Storey’s death on March 4, 2006. The medical records included statements




17
  The Defendants assert that the Plaintiff made this argument only after the trial court ruled against the
Plaintiff on tolling based on Mrs. Storey’s alleged incapacity. The record is unclear on this point. In any
event, it is clear that fraudulent concealment was argued after the hearing on the motion for summary
judgment.

                                                   -12-
indicating that Mrs. Storey suffered from “multiple chronic problems,” including Alzheimers
or dementia, congestive heart failure, severe COPD,18 depression, and hypothyroidism.

The Plaintiff also submitted her own affidavit, in which she averred that, although she had
previously subpoenaed Dr. Koplon’s medical records on Mrs. Storey dating back to 1998,
Dr. Koplon produced only records from 2004 forward. The Plaintiff asserted that, after the
hearing on the Defendants’ motion to dismiss and/or for partial summary judgment, she again
subpoenaed Dr. Koplon’s pre-2004 records, and in response received only records from
2001; she received none for 2002 or 2003. The missing medical records, the Plaintiff argued,
would have enabled her to establish that Mrs. Storey did not have the capacity to make
decisions for herself and that she was dominated by the Defendants, a necessary element of
her claims.

On February 10, 2010, the trial court conducted a hearing on the Plaintiff’s motions.19 At the
conclusion of the hearing, it took the motions under advisement.

On March 16, 2010, the trial court issued an oral ruling denying the Plaintiff’s motions to
alter or amend and to compel the production of documents. To determine whether to
consider the Plaintiff’s newly submitted evidence, the trial court applied the factors identified
in Harris v. Chern, 33 S.W.3d 741 (Tenn. 2000). It noted that the medical records of Dr.
Koplon were subpoenaed in June 2008, found that the pre-2004 medical records would have
been discoverable through due diligence, and held that the Plaintiff offered no excuse that
justified her failure to seek an order to compel the production of the records at an earlier
time.

The trial court rejected the Plaintiff’s argument that the statute of limitations should be tolled
based on Mrs. Storey’s lack of capacity or based on fraudulent concealment. It found that
these arguments were not raised prior to the hearing on the summary judgment motion, so
the trial court declined to consider them in the context of the motion to alter or amend. The
trial court also declined to alter or amend its conclusion that Mrs. Yohanek could not be held
liable for conversion of the funds in Mrs. Storey’s bank account. In light of its decision to
deny the motion to alter or amend, the trial court also denied the Plaintiff’s motion to compel
discovery. On March 17, 2010, the trial court entered a written order denying the Plaintiff’s
motions, incorporating by reference her oral ruling to that effect.




18
     Chronic obstructive pulmonary disease.
19
     A transcript of that hearing is not included in the appellate record.

                                                        -13-
                            Proceedings After Notice of Appeal

On March 19, 2010, the Plaintiff filed a timely notice of appeal from two orders, the trial
court’s December 16, 2009 order granting partial summary judgment and its March 17, 2010
order denying her motions to alter or amend and her motion to compel.

Subsequently, this Court, sua sponte, raised the issue of whether the trial court’s December
16, 2009 order had been improvidently certified as final under Tennessee Rules of Civil
Procedure 54.02. This Court entered an order directing the Plaintiff to show cause why the
appeal should not be dismissed for failure to appeal a final order or judgment. In the order,
the appellate court recognized that the trial court’s December 16, 2009 order was certified
as final pursuant to Rule 54.02, but noted that Rule 54.02 provides that a trial court may
direct the entry of final judgment “as to one or more but fewer than all of the claims or
parties.” Where a claim for relief, based on an aggregate set of operative facts, is pursued
based on more than the legal theory, the appellate court noted that certification is not
appropriate when the trial court has held that the claimant is not entitled to relief under one
legal theory, but a claim arising out of the same aggregate of operative facts under another
legal theory remains in the case. Similarly, Rule 54.02 certification is not appropriate where
the issues that are declared “final and appealable” are “inextricably linked with the remaining
issues not yet decided. Piece-meal appeals are not favored.” Crane v. Sullivan, No. 01A01-
9207-CH-00287, 1993 WL 15154, at *2 (Tenn. Ct. App. Jan. 27, 1993); see also Christus
Gardens, Inc. v. Baker, Donelson, Bearman, No. M2007-01104-COA-R3-CV, 2008 WL
3833613, at *4-5 (Tenn. Ct. App. Aug. 15, 2008).

In response to the appellate court’s show cause order, in order to eliminate any “remaining
issues not yet decided” and thereby resolve any question as to appellate jurisdiction, the
Plaintiff filed in the trial court a notice of voluntary dismissal of the claims remaining against
the Defendants for their conduct prior to Mrs. Storey’s death. In the notice of voluntary
dismissal, the Plaintiff defined the remaining claims as (1) a claim against Mr. Yohanek for
undue influence exercised against Eloise Storey after March 4, 2003, until her death (March
4, 2006), and (2) a claim against Mrs. Yohanek for conversion commencing March 4, 2003.
In the notice, the Plaintiff stated: “Pursuant to this Notice of Voluntary Non-Suit, there will
be no remaining claims asserted by the Plaintiff that were not finally disposed of by the Court
in its Order Granting Summary Judgment entered December 16, 2009.” The trial court then
entered an order dismissing those claims in accordance with the Plaintiff’s notice of
voluntary non-suit. On February 10, 2011, the Plaintiff filed copies of the these pleadings
in this Court to demonstrate that all remaining claims have been dismissed, and that the
December 16, 2009 order is final as certified, and that appellate review of this decision is
proper.



                                              -14-
From these pleadings, it appears that all of the claims brought by the Plaintiff against the
Defendants, except for her claims against Mr. Yohanek in his capacity as executor of the
estate, have been resolved, and that the claims being appealed are not intertwined with the
issues remaining to be decided in the trial court.20 Therefore, Rule 54.02 certification is
proper, and we have jurisdiction to hear the issues on appeal.

                         ISSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, the Plaintiff raises several issues:

        1. Did the trial court commit error when it granted the Defendants’ motion for
        partial summary judgment dismissing the Plaintiff’s claims against the
        Defendants based upon the Defendants’ “conclusory” assertions?
        2. Did the trial court commit error when it refused to find that the running of
        the three year statute of limitations had been tolled either (a) during the period
        of the Decedent’s disability or (b) during the time that actions of the
        Defendants had been concealed by the Defendants?
        3. Did the trial court commit error when it ruled that the three-year statute of
        limitations set forth in Section 28-3-105 should be applied retroactively from
        the Decedent’s date of death, rather than from the date the Plaintiff knew or
        should have known the facts upon which her claims were based?
        4. Did the trial court commit error when it dismissed the Plaintiff’s claims that
        the Defendants had exercised undue influence over the Decedent during her
        lifetime in the transfers of property of the Decedent to themselves?
        5. Did the trial court commit error when it dismissed the Plaintiff’s claims that
        the Defendants had converted property of the Decedent during her lifetime for
        their own benefit?
        6. Did the trial court commit error when it dismissed the Plaintiff’s claims that
        Mr. Yohanek had breached fiduciary duties to the Decedent following his
        appointment as her attorney in fact?
        7. Did the trial court commit error when it denied the Plaintiff’s motion to
        alter or amend?




20
  As noted above, the trial court did not address in its oral or written ruling the claim against Mr. Yohanek
for breach of his fiduciary duties as the executor of the estate. Therefore, as we will discuss below, this
claim has not been adjudicated, and it is still pending before the trial court. Nevertheless, this claim is
severable from the other claims brought by the Plaintiff, and the fact that it remains for adjudication does
not prevent the decision on appeal from being a final, appealable order.

                                                    -15-
        8. Did the trial court commit error when it refused to grant the Plaintiff’s
        motion to compel discovery of medical information?

We will first consider the trial court’s ruling on the Defendants’ motion to dismiss and/or for
partial summary judgment, and then we will consider the trial court’s denial of the Plaintiff’s
motion to alter or amend.

The trial court’s decision to grant or deny a motion for summary judgment is a question of
law, which we review de novo on the record, with no presumption of correctness in the trial
court’s decision. A grant of summary judgment is appropriate only when there is no genuine
issue of material fact, and the moving party is entitled to a judgment as a matter of law.
Tenn. R. Civ. P. 56.04; 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).

In Hannan, the Tennessee Supreme Court outlined a new burden-shifting analysis for a trial
court to employ when faced with a motion for summary judgment.21 After Hannan, “[i]t is
not enough for the moving party to challenge the nonmoving party to ‘put up or shut up’ or
even to cast doubt on a party’s ability to prove an element at trial.” Hannan, 270 S.W.3d at
8. Rather, the moving party must “either affirmatively negate an essential element of the
non-moving party’s claim or conclusively establish an affirmative defense.” Id. (quoting
Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000)). This analysis was recently
summarized by the Tennessee Supreme Court:

        The party seeking the summary judgment has the ultimate burden of
        persuading the court “that there are no disputed, material facts creating a
        genuine issue for trial . . . and that he is entitled to judgment as a matter of
        law.” Byrd, 847 S.W.2d at 215. If that motion is properly supported, then the
        burden of production to establish a genuine issue of material fact shifts to the
        non-moving party. Hannan, 270 S.W.3d at 5. In order to shift the burden of
        production, the movant must either affirmatively negate an essential element
        of the nonmovant’s claim or demonstrate that the non-moving party cannot
        establish an essential element of his claim at trial. Id. at 8-9. The court must
        accept the facts presented by the nonmovant as true and resolve any doubts
        regarding the existence of genuine issue of material fact in the nonmovant’s


21
  Tennessee’s General Assembly recently enacted a law that legislatively reverses the Tennessee Supreme
Court’s holding in Hannan, with the intent to return the summary judgment burden-shifting analytical
framework to that which existed prior to Hannan. See SB 1114/HB 1358, adding T.C.A. § 20-16-101,
expected to take effect July 1, 2011 (pending Governor’s signature). In this appeal, we apply the summary
judgment standard in effect at the time of the trial court decision below, that is, the Hannan standard.

                                                  -16-
      favor. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 84 (Tenn. 2008). At the
      summary judgment phase, “it is not the role of a trial or appellate court to
      weigh the evidence or substitute its judgment for that of the trier of fact.” Id.
      at 87 (citing Byrd, 847 S.W.2d at 211).

Estate of French v. Stratford House, 333 S.W.3d 546, 553-54 (Tenn. 2011).

The mental gymnastics required for summary judgment analysis can become even more
challenging if the moving party has the ultimate burden of proof on the issue that is the
subject of the summary judgment motion:

      The burden-shifting analysis differs if the moving party bears the burden of
      proof at trial. Hannan, 270 S.W.3d at 9 n.6. “For example, a plaintiff who
      files a motion for partial summary judgment for an element of his or her claim
      shifts the burden by alleging undisputed facts that show the existence of that
      element and entitle the plaintiff to summary judgment as a matter of law.” Id.
      n.6. “Similarly, a defendant asserting an affirmative defense . . . shifts the
      burden of production by alleging undisputed facts that show the existence of
      the affirmative defense.” Id. n.6.

Fortune v. Unum Life Ins. Co. of Am., No. W2009-01395-COA-R3-CV, 2010 WL
3984705, at *3 (Tenn. Ct. App. Oct. 12, 2010), perm. app. den. (Tenn. Apr. 14, 2011).

      Regardless of which party has the burden of proof, this Court has cautioned:

      A party will not succeed on a motion for summary judgment merely by
      asserting that the non-moving party is without evidence to support its claim.
      Martin, 271 S.W.3d at 83-84 (citing Byrd, 847 S.W.2d at 215). “The moving
      party must either produce evidence or refer to evidence previously submitted
      by the nonmoving party that negates an essential element of the nonmoving
      party’s claim or shows that the nonmoving party cannot prove an essential
      element of the claim at trial.” Id. at 84 (citing Hannan, 270 S.W.3d at 5).
      Production of evidence raising doubts about the merits of the non-moving
      party’s claim will not suffice. Id. (citing McCarley [v. Quality Food Serv.,
      960 S.W.2d 585, 588 (Tenn. 1988)] “[T]he moving party must point to
      evidence that tends to disprove an essential factual claim made by the
      nonmoving party.” Id. (citing Blair [v. Town Hall, 130 S.W.3d 761, 768
      (Tenn. 2004)]. If the moving party does not carry its initial burden, the
      nonmoving party has no obligation to produce evidentiary materials in support



                                            -17-
        of its position. Id. (citing McCarley, 960 S.W.2d at 588; Staples, 15 S.W.3d
        at 88).

Id. Thus, a defendant who relies on an affirmative defense in a summary judgment motion
must point to undisputed facts that establish the defense. In the absence of an affirmative
defense, the defendant who seeks summary judgment must essentially prove a negative, that
is, disprove an essential element of the plaintiff’s claim.

Generally, there are four methods by which the nonmoving party can satisfy its burden of
production and defeat a motion for summary judgment:

        (1) pointing to evidence establishing material factual disputes that were over-
        looked 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 trial; or
        (4) submitting an affidavit explaining the necessity for further discovery
        pursuant to Tenn. R. Civ. P., Rule 56.06.

McCarley v. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1988) (quoting Byrd, 847
S.W.2d at 215 n.6).

Within this framework, we must review the evidence presented and determine whether
genuine issues of material fact exist, and whether the Defendants were entitled to a judgment
as a matter of law.22 As set forth below, this case illustrates the difference in the resolution
of a summary judgment motion that can result from application of the summary judgment
standard adopted in Hannan and its progeny.

                                                 A NALYSIS

                                      Claims at Issue on Appeal

In her complaint, the Plaintiff has sought relief in two capacities – first, in her capacity as a
personal representative for the estate, and second, on her own behalf in her capacity as a


22
  The Defendants’ motion was styled as a “Motion to Dismiss and Motion for Partial Summary Judgment.”
It is unclear in the record whether the issue involving the statute of limitations was argued by the Defendants
as part of their motion to dismiss or their motion for summary judgment. Regardless, the trial court properly
decided this issue by considering evidence outside of the pleadings, so we will review this issue on appeal
as part of the summary judgment motion.

                                                     -18-
beneficiary under the will. The Plaintiff’s claims filed on behalf of the estate were based on
undue influence, breach of fiduciary duty, conversion, and civil conspiracy for wrongful acts
committed during Mrs. Storey’s lifetime. The claims filed by the Plaintiff on her own behalf
were based on Mr. Yohanek’s breach of his fiduciary duty to the estate, and based on all of
the Defendants’ conspiracy for Mr. Yohanek to achieve this purpose. Therefore, the Plaintiff
has asserted two separate and distinct breach of fiduciary duty claims against Mr. Yohanek.

The Defendants’ motion to dismiss did not request that Mr. Yohanek, as the executor of the
estate, be granted summary judgment on the claim that he breached his fiduciary duty to the
estate through the improper administration of the estate.23 Perhaps for this reason, the trial
court did not address in its oral or written ruling this claim against Mr. Yohanek for breach
of his fiduciary duty to the estate in the administration thereof. The trial court’s written order
states that summary judgment is granted in favor of Mr. Yohanek “as to all causes of action
based on Breach of Fiduciary Duty.” This language is broad, and both parties on appeal have
understandably interpreted this to include dismissal of the claim against Mr. Yohanek for the
breach of his fiduciary duty in the administration of Mrs. Storey’s estate.

Nevertheless, we note that the trial court’s written order attaches and incorporates by
reference its lengthy oral ruling. In its oral ruling, the trial court does not address the breach
of fiduciary duty claim against Mr. Yohanek for his actions as the executor of Mrs. Storey’s
estate. The trial court specifically held that the statute of limitations did not bar the claims
against the Defendants arising out of Mr. Yohanek’s conduct as the estate’s executor. To
determine the parameters of the trial court’s written order, we must consider the oral ruling,
particularly since it was given legal effect when it was incorporated into the written order by
specific reference.24 See City of Newport v. Masengill Auction Co., 19 S.W.3d 789, 795-96
(Tenn. Ct. App. 1999) (recognizing the well-established principle that a court speaks only
through its written judgments). In light of the oral ruling, incorporated into the written order,
we interpret the trial court’s order as granting summary judgment to Mr. Yohanek only as to
the breach of fiduciary duty claims arising out of his actions as Mrs. Storey’s attorney in fact,
asserted by the Plaintiff in her capacity as Mrs. Storey’s personal representative. Summary
judgment was not granted as to the Plaintiff’s claims, brought on her own behalf as a
beneficiary, against Mr. Yohanek for his breach of fiduciary duty in the administration of the



23
 The trial court granted summary judgment in favor of the Defendants on all of the claims for civil
conspiracy, including the claims brought by the Plaintiff, as a beneficiary, against the Defendants for their
conspiracy to cause Mr. Yohanek to breach his fiduciary duty to the estate.
24
  We note that the transcript of the oral ruling attached to the trial court’s written order contains handwritten
corrections by the trial judge, indicating that she carefully reviewed the transcript to ensure that it accurately
reflected her ruling.

                                                      -19-
estate. Therefore, that claim remains pending before the trial court below, and it is not at
issue in this appeal.

                                    Statute of Limitations

It is undisputed that the statute of limitations applicable to all of the Plaintiffs’ claims is the
three-year statute of limitations found at Tennessee Code Annotated § 28-3-105. By the
terms of the statute, a plaintiff’s claim for relief must be commenced “within three (3) years
from the accruing of the cause of action.” The disputes on appeal center on when the
“accruing of the cause of action” begins, and whether, in any event, the statute of limitations
was tolled by Mrs. Storey’s incompetence or the Defendants’ fraudulent concealment of their
wrongful acts. We will address these issues in turn.

                                         Discovery Rule

On appeal, the Plaintiff argues that the trial court erred in granting partial summary judgment
in favor of the Defendants based on its finding that the Plaintiff did not submit sufficient
evidence regarding when Mrs. Storey discovered, or should have discovered, the Defendants’
wrongful conduct.

In their motion for partial summary judgment, the Defendants argued that the statute of
limitations began to accrue when the alleged unlawful acts occurred. Based on this premise,
they argued that the Plaintiff’s action was time-barred insofar as it was based on alleged
wrongful acts that occurred prior to September 10, 2004, i.e., three years before the
complaint was filed. In response, the Plaintiff asserted that the statute did not begin to accrue
until she, the Plaintiff, discovered, or should have discovered, the Defendants’ wrongful acts.
The Plaintiff claimed that she “did not discover the wrongful acts of the Defendants until
after the death of her mother on March 4, 2006, and until after her Estate was opened on
March 30, 2006.” Therefore, the Plaintiff argued, under the discovery rule, the statute of
limitations began to accrue on either March 4, 2006, or March 30, 2006, and none of the
claims in her September 2007 petition was time-barred.

The trial court disagreed with the positions taken by both the Plaintiff and the Defendants.
As an initial matter, the trial court found that, because the Plaintiff’s claims were brought on
behalf of the estate, the three-year statute of limitations would begin to accrue, not when the
Plaintiff discovered or should have discovered the wrongful acts, but “when the decedent
discovered or should have discovered the alleged wrongful acts.” The trial court explained:

       Because the plaintiff offered no proof regarding when the decedent learned or
       received any notice of any wrongful acts, the three-year statute of limitations

                                               -20-
       began at the earliest point prior to her death when this action could have been
       brought without proving lack of notice. This point would have been three
       years before her death or March 4, 2003. . . . Further, there have been no facts
       alleged or arguments made regarding if and when the decedent discovered or
       should have discovered the alleged wrongful acts.
               Therefore, the Court holds that this cause is limited to those acts that
       fall within three years prior to the decedent’s date of death.

On this basis, the trial court dismissed the claims that were based on conduct occurring prior
to March 4, 2003, three years prior to the Decedent’s death.

Section 28-3-105 provides that a plaintiff’s claim must be commenced “within three (3) years
from the accruing of the cause of action.” Thus, the critical issue in such a case is when the
cause of action accrued. Prescott v. Adams, 627 S.W.2d 134, 138 (Tenn. Ct. App. 1981).
This Court has defined the phrase “from the accruing of the cause of action” to mean “from
the time when the plaintiff knew or reasonably should have known that a cause of action
existed.” Id. (quoting Stone v. Hinds, 541 S.W.2d 598, 599 (Tenn. Ct. App. 1976));
Johnson v. Craycraft, 914 S.W.2d 506, 511 (Tenn. Ct. App. 1995) (same). This is
essentially a restatement of the discovery rule, under which “a cause of action accrues and
the statute of limitations begins to run ‘when the plaintiff knows or in the exercise of
reasonable care and diligence should know that an injury has been sustained as a result of
wrongful or tortious conduct by the defendant.’ ” Fahrner v. SW Mfg., Inc., 48 S.W.3d 141,
143 (Tenn. 2001) (quoting Kohl & Co. v. Dearborn & Ewing, 977 S.W.2d 528, 532 (Tenn.
1998)). Under the application of the discovery rule, the statute of limitations is tolled during
the period of time in which the plaintiff has no actual knowledge of the injury and, as a
reasonable person, would not be placed on inquiry notice. Levine v March, 266 S.W.3d 426,
435 (Tenn. Ct. App. 2007) (citing Potts v. Celotex Corp., 796 S.W.2d 678, 680–81 (Tenn.
1990)). “The issue of accrual of a cause of action is basically a question of fact for the trier
of fact.” Johnson, 914 S.W.2d at 511-12.

In this case, we must first address the question of who is “the plaintiff” for purposes of
applying the discovery rule. In their motion for partial summary judgment, the Defendants
presumed that the knowledge (or lack thereof) of Mrs. Storey was the relevant issue; in her
response, the Plaintiff presumed that the relevant inquiry was when she herself had
knowledge of the Defendants’ wrongdoing. The Plaintiff has cited no authority to support
this position. In this case, all of the claims governed by Section 28-3-105 are the claims
brought by the Plaintiff as representative of the estate, standing in the stead of her mother,
Mrs. Storey. Because the claims belong to Mrs. Storey, and not to the Plaintiff, we agree




                                              -21-
with the Defendants that the focus of inquiry under the discovery rule must be the knowledge
(or lack thereof) of Mrs. Storey, not the knowledge of the Plaintiff.25

With this in mind, we must determine whether the Defendants submitted sufficient evidence
to prevail on their motion for partial summary judgment on the statute of limitations defense.
When a defendant files a motion for summary judgment based on an affirmative defense, the
defendant must “conclusively establish [the] affirmative defense.” McMahan v. Sevier
County, No. E2005-02028-COA-R3-CV, 2007 WL 1946650, at *2 (Tenn. Ct. App. July 3,
2007) (quoting McCarley, 960 S.W.2d at 588). When the affirmative defense is based on
a statute of limitations, and the plaintiff relies on the discovery rule in response to the motion,
the burden remains on the defendant to show “that the plaintiff discovered, or should have
discovered, . . . that he or she was injured as a result of the wrongful conduct of another” at
a time that places the plaintiff beyond the limitations period. Id. at *3. This Court has
explained:

                In a summary judgment case, when the plaintiff puts the discovery rule
        at issue in response to the defendant’s assertion of the statute of limitations as
        a bar to the plaintiff’s claim, the burden remains on the moving party to prove
        the affirmative of its defense, i.e., that the plaintiff discovered, or should have
        discovered, more than one year prior to the commencement of the action, that
        he or she was injured as a result of the wrongful conduct of another. . . .
                In the summary judgment analysis, the initial focus is on the material
        upon which the moving party relies. Hence, in the instant case, the defendants
        must demonstrate, by way of verified testimony and/or authenticated
        documents, all of which must be admissible at trial, that more than one year
        prior to the filing of suit, the plaintiff was “aware of facts sufficient to put a
        reasonable person on notice that he [or she] ha[d] suffered an injury as a result
        of wrongful conduct.” Stanbury [v. Bacardi, 953 S.W.2d 671, 678 (Tenn.
        1997)] (quoting Roe [v. Jefferson, 875 S.W.2d 653, 657 (Tenn. 1994)]).
        Unless and until the defendant does this, the plaintiff is not required to show
        that he or she was not chargeable with knowledge of such facts.

Id. at *3-4 (citing McCarley, 960 S.W.2d at 587-88); see also Fortune, 2010 WL 3984705,
at *3. Therefore, under the burden-shifting framework for summary judgment analysis, the



25
  By analogy, where one suffers personal injuries that later result in death, the statute of limitations begins
to run from the date of the injury, not the date of death. See Fowykes v. Nashville & Decatur R.R. Co., 56
Tenn. 829, 1876 WL 7247, at *1 (Tenn. 1876); Holliman v. McGrew, 2009 WL 302276, at *5 (Tenn. Ct.
App. Feb. 5, 2009).

                                                     -22-
burden is on the Defendants to negate the Plaintiff’s claim that the discovery rule tolls the
applicable statute of limitations.

Moreover, in this case, the “discovery” of Mrs. Storey must be shown in the context of Mr.
Yohanek’s duty as to her as a fiduciary. As Mrs. Storey’s fiduciary, Mr. Yohanek had an
affirmative duty to inform her of all matters pertaining to the fiduciary relationship.26 This
would of course include all material facts regarding expenditures of Mrs. Storey’s money or
assets by Mr. Yohanek or any of the Defendants to benefit someone other than Mrs. Storey.
Moreover, to the extent that the Defendants would seek to show when Mrs. Storey reasonably
should have known that she was injured as a result of wrongful conduct, this, too, must be
ascertained in the context of Mr. Yohanek’s fiduciary duty to Mrs. Storey. The trust and
confidence placed in the fiduciary, coupled with the fiduciary’s failure to disclose, may
prevent the discovery of the cause of action. See Hagney v. Lopeman, 590 N.E.2d 466, 469
(Ill. 1992). “Facts which might ordinarily require investigation may not excite suspicion
where a fiduciary relationship is involved.” Willis v. Maverick, 760 S.W.2d 642, 645 (Tex.
1988). Thus, the determination of when Mrs. Storey reasonably should have known must
factor in her trust and confidence in her fiduciary, Mr. Yohanek.

Against this backdrop, we consider “the material upon which” the Defendants relied in
demonstrating when Mrs. Storey knew or should have known about their allegedly wrongful
acts. McMahan, 2007 WL 1946650, at *3-4. To support their motion for partial summary
judgment, the Defendants submitted their own affidavits in which they asserted that Mrs.
Storey had the ability to manage her own financial affairs and did so until her death. They
also asserted generally that their actions with respect to Mrs. Storey’s bank accounts, credit
cards, and assets were done at Mrs. Storey’s direction or request. For example, in Mr.
Yohanek’s affidavit, he states that he never used Mrs. Storey’s bank accounts or VISA
“unless at the request of Eloise J. Storey,” and that all actions taken by him with respect to
the disposition of her assets “were at her direction or request.” The affidavits of Mrs.
Yohanek and Mr. John G. Storey state similarly that any actions taken with respect to their
mother’s bank account, VISA, and other assets “were at [Mrs. Storey’s] direction or request.”

This evidence falls far short of establishing when Mrs. Storey knew or should have known
about each of the alleged wrongful acts of the Defendants. The undisputed facts show that
Mr. Yohanek assisted Mrs. Storey with her business affairs at least since 1998. After her


26
  We note that the fiduciary’s “failure to speak where there is a duty to speak is the equivalent of some
positive act or artifice planned to prevent injury or escape investigation.” Ralston v. Hobbs, 306 S.W.3d
213, 223-24 (Tenn. Ct. App. 2009). Once the fiduciary relationship arises, “there exists a duty to speak . .
.[and] mere silence constitutes fraudulent concealment.” Shadrick v. Coker, 963 S.W.2d 726, 763 (Tenn.
1998).

                                                   -23-
strokes in 2001, she was physically compromised, forced to rely on others for many aspects
of her daily care. The alleged wrongful acts of the Defendants took place over a number of
years. The general assertions in the Defendants’ affidavits regarding “[a]ny actions taken”
with respect to Mrs. Storey’s assets are both broad and vague; they do not constitute
probative evidence of Mrs. Storey’s knowledge about the particular transactions at issue, or
whether she should have had knowledge of those transactions. In addition, they do not
address Mr. Yohanek’s disclosure as Mrs. Storey’s fiduciary of all material facts surrounding
each transaction. The “[p]roduction of evidence raising doubts about the merits of the
nonmoving party’s claim will not suffice.” Fortune, 2010 WL 3984705, at *3. The
Defendants had the burden to show that Mrs. Storey was “aware of facts sufficient to put a
reasonable person on notice that he [or she] ha[d] suffered an injury as a result of wrongful
conduct” with respect to the specific transactions at issue, and in the context of the fiduciary
relationship. McMahan, 2007 WL 1946650, at *4 (citation omitted). The evidence
submitted by the Defendants does not satisfy this burden.

Because the Defendants did not satisfy their burden of proving that they were entitled to
summary judgment on their statute of limitations defense, the Plaintiff was not required to
submit evidence that Mrs. Storey did not have sufficient knowledge of the relevant facts. Id.;
Fortune, 2010 WL 3984705, at *3 (“If the moving party does not carry its initial burden, the
nonmoving party has no obligation to produce evidentiary materials in support of its
position.”). Therefore, it was error for the trial court grant summary judgment in favor of the
Defendants based on the Plaintiff’s failure to show when Mrs. Storey had knowledge of the
Defendants’ wrongful acts. See McCarley, 960 S.W.2d at 588.

Furthermore, Section 28-3-105 provides that the Plaintiff’s action “shall be commenced”
within three years of accrual; thus, the limitations period is three years prior to the day on
which the action is “commenced.” The trial court below used the date of Mrs. Storey’s death
as the operative date from which to measure the three-year statute of limitations, but there
is no authority for using this date to determine the limitation period. Under the plain
language of the statute, the operative date for determining whether a claim is time-barred is
the date on which the complaint is filed. Therefore, we must conclude that the trial court
erred in using the date of Mrs. Storey’s death as the reference point to determine which
claims are barred by the statute of limitations.

For all of these reasons, the grant of summary judgment on the basis of the statute of
limitations must be reversed.




                                              -24-
                                                  Tolling

                    a. Incapacity or “Unsound Mind” - T.C.A. § 28-1-106

The Plaintiff claims that Mrs. Storey was mentally and physically disabled from the time she
suffered a massive stroke in early 2001, and that, after her stroke, Mr. Yohanek took and
retained complete control of Mrs. Storey’s affairs. Consequently, she argues, the trial court
should have found that the three-year statute of limitations was tolled until the date of her
death,27 because Mrs. Storey was “of unsound mind” pursuant to Tennessee Code Annotated
§ 28-1-106. That statute provides:

        If the person entitled to commence an action is, at the time the cause of action
        accrued, either under the age of eighteen (18) years, or of unsound mind, such
        person, or such person’s representatives and privies, as the case may be, may
        commence the action, after the removal of such disability, within the time of
        limitation for the particular cause of action, unless it exceeds three (3) years,
        and in that case within three (3) years from the removal of such disability.

T.C.A. § 28-1-106 (2000) (emphasis added). Thus, this statute permits the tolling of an
applicable statute of limitations during the time in which a claimant is “of unsound mind.”
The statute, however, does not define the term.28 The Plaintiff argues that, after her stroke,
Mrs. Storey was “of unsound mind,” and so the three-year statute of limitations should have
been tolled for the duration of her disability.29

In response, the Defendants point out that the Plaintiff did not make this argument to the trial
court in response to their motion for partial summary judgment; rather, the argument was first
raised in the Plaintiff’s motion to alter or amend. Therefore, they claim, the trial court did
not err in failing to apply the tolling provision in Section 28-1-106. In the alternative, the

27
  The death of a legally disabled person removes the disability, and the statute of limitations begins to run
at that time. See Collier v. MLG&W, 657 S.W.2d 771, 774 (Tenn. Ct. App. 1983).
28
  On April 6, 2011, the Tennessee Legislature enacted an amendment to this statute, deleting the phrase “of
unsound mind” and was replacing with “adjudicated incompetent.” In the same amendment, the phrase “the
removal of such disability” was replaced with “legal rights are restored,” and “removal of such disability”
was replaced with “restoration of legal rights.” See Tenn. Laws Pub. Ch. 47 (S.B. 850) (2011). The
amendments to the statute are not applicable to this case, and they are not part of our analysis.
29
  We note that, shortly after oral argument in this appeal, the Tennessee Supreme Court issued its opinion
in Sherrill v. Souder, in which the Court discussed at length the meaning of the phrase “of unsound mind,”
for the purpose of tolling the applicable statute of limitations. See Sherrill v. Souder, 325 S.W.3d 584, 599-
603 (Tenn. 2010).

                                                    -25-
Defendants argue, Mrs. Storey is legally presumed to be competent, the Defendants
submitted affidavits to that effect, and the Plaintiff did not present any factual or evidentiary
basis from which the trial court could have found that Mrs. Storey was incapable of
managing her financial affairs.

From our review of the record, we agree with the Defendants that the Plaintiff did not raise
this argument to the trial court in her response to the Defendants’ motion for partial summary
judgment. In response to the Defendants’ asserted statute of limitations defense, the Plaintiff
argued only the discovery rule, i.e., that she did not discover the Defendants’ wrongful acts
until after the death of her mother on March 4, 2006, and that the statute of limitations,
therefore, did not begin to run until her Mother’s death. The Plaintiff’s response to the
Defendants’ motion for summary judgment included her unsworn response to the
Defendants’ Statement of Material Undisputed Facts, in which she alluded to Mrs. Storey’s
disability:

        In February and March of 2001, Mrs. Storey sustained a series of strokes that
        left her physically and mentally disabled. Mrs. Storey was so disabled
        thereafter that she required round the clock care for the rest of her life. She
        was unable to speak clearly or write.

The unsworn response also specifically denied the Defendants’ allegation that Mrs. Storey
was capable of managing her financial affairs and did so until her death.30 Nevertheless, the
essential legal theory – the tolling of the statute of limitations because Mrs. Storey remained
“of unsound mind” after her 2001 stroke – was not fairly raised to the trial court in response
to the Defendants’ motion for summary judgment. Thus, based on the record before the trial
court at the time, it had no reason to find that the three-year statute of limitations was tolled
because Mrs. Storey was “of unsound mind.” See Dye v. Witco Corp., 216 S.W.3d 317, 321
(Tenn. 2007) (stating that, when an argument is not presented in response to a motion for
summary judgment and is raised for the first time on appeal, the trial court is deprived of the
opportunity to make findings regarding the issue, and the argument is waived).

We note that this argument was presented to the trial court in the Plaintiff’s motion to alter
or amend. It is addressed below in our analysis of the trial court’s denial of the motion to
alter or amend.




30
 The Plaintiff’s sworn affidavit did not incorporate by reference her sworn response to the Defendants’
Statement of Material Undisputed Facts. Instead, it simply explains that her responses were “based, in part,
upon the sworn deposition testimony of the Defendants, given in my presence.”

                                                   -26-
                                     b. Fraudulent Concealment

The Plaintiff also argues that the trial court erred in not holding that the three-year statute of
limitations was tolled by the Defendants’ fraudulent concealment of the facts that formed the
basis for Mrs. Storey’s cause of action. The Plaintiff claims that the Defendants (1)
remained silent about their excessive “gifts” to themselves from Mrs. Storey’s funds, (2) did
not to disclose to the Plaintiff the “gifts” to themselves purchased with Mrs. Storey’s funds,
(3) had knowledge of their actions, and (4) concealed the salient facts from the Plaintiff. See
Pero’s Steak & Spaghetti House v. Lee, 90 S.W.3d 614, 621-22 (Tenn. 2002); see also
Levine, 266 S.W.3d at 435 (explaining that a statute of limitations may be tolled when a
defendant engages in conduct intended to conceal an injury from the plaintiff). Because of
this fraudulent concealment, the Plaintiff argues, the trial court should have held that the
three-year limitations period did not commence until the opening of the estate on March 30,
2006, or until the disclosure by Mr. Yohanek of the excessive gifts through his amended gift
tax filings on June 4, 2007.

In response, the Defendants point out that this argument likewise was not made to the trial
court prior to the summary judgment hearing, and the Plaintiff submitted no evidence related
to facts supporting this argument in response to the Defendants’ motion for partial summary
judgment. Therefore, the trial court had no reason to hold that the statute of limitations was
tolled on this basis. In the alternative, the Defendants contend that this argument should be
rejected because the Plaintiff made no allegation that any facts were concealed from Mrs.
Storey, only that they were concealed from the Plaintiff. The Defendants claim that it is
immaterial what facts were disclosed to or concealed from the Plaintiff, because the Plaintiff
asserts this cause of action as the personal representative of Mrs. Storey. Therefore, the
Defendants assert, this argument should be rejected.

After a thorough review of the record, we must conclude that, at the time the trial court was
considering the Defendants’ motion for partial summary judgment, the Plaintiff did not argue
that the statute of limitations should be tolled by the Defendants’ fraudulent concealment of
pertinent facts. Rather, this argument was raised in the first instance in the Plaintiff’s motion
to alter or amend.31 Therefore, as with the tolling argument based on Mrs. Storey’s
competence, the trial court had no reason to hold that the statute of limitations was tolled
based on the Defendants’ alleged acts of fraudulent concealment.
Because this argument was raised in the Plaintiff’s motion to alter or amend, we will consider
it in the course of our review of the trial court’s decision on the motion to alter or amend.


31
 Actually, whether the argument was explicitly raised in the Plaintiff’s motion to alter or amend is debatable.
For purposes of our analysis, however, we will assume that the argument was made in the motion to alter or
amend.

                                                     -27-
                                             Undue Influence

The trial court granted summary judgment in favor of Mrs. Yohanek and Mr. John G. Storey
on the Plaintiff’s undue influence claim, finding that the Plaintiff did not submit sufficient
evidence to establish that a confidential relationship existed between Mrs. Storey and either
of these defendants.32 On appeal, the Plaintiff argues that the trial court erred in reaching
this conclusion.

“The most common way of establishing the existence of undue influence is ‘by proving the
existence of suspicious circumstances warranting the conclusion that the [action] was not the
[decedent’s] free and independent act.’”33 Estate of Hamilton v. Morris, 67 S.W.3d 786,
792 (Tenn. Ct. App. 2001) (quoting Mitchell v. Smith, 779 S.W.2d 384, 388 (Tenn. Ct. App.
1989)). There is no prescribed number of “suspicious circumstances” which must be met in
order to establish undue influence.

However, a finding of a “confidential relationship” is a necessary predicate to an undue
influence claim. “[T]he doctrine of indue influence is applicable only where there is a
confidential relationship” between the dominant party and the other party. See In re Estate
of Brevard, 213 S.W.3d 298, 302 (Tenn. Ct. App. 2006) (citing Keasler v. Estate of Keasler,
973 S.W.2d 213, 219 (Tenn. Ct. App. 1997); Simmons v. Foster, 622 S.W.2d 838, 840
(Tenn. Ct. App. 1981)). “Confidential relationships can assume a variety of forms, and thus
the courts have been hesitant to define precisely what a confidential relationship is.” Kelley
v. Johns, 96 S.W.3d 189, 197 (Tenn. Ct. App. 2002) (citing Robinson v. Robinson, 517
S.W.2d 202, 206 (Tenn. Ct. App. 1974)). “In general terms, it is any relationship that gives
one person the ability to exercise dominion and control over another.” Id. (citing Givens v.
Mullikin ex rel. Estate of McElwaney, 75 S.W.3d 383, 410 (Tenn. 2002); Childress v.
Currie, 74 S.W.3d 324, 328 (Tenn. 2002); Mitchell v. Smith, 779 S.W.2d 384, 389 (Tenn.



32
 The trial court denied summary judgment in favor of Mr. Yohanek on the undue influence claim, but the
Plaintiff has since voluntarily dismissed this claim against Mr. Yohanek.
33
  In the context of undue influence in the execution of or altering of a last will and testament, the most
frequently used “suspicious” circumstances are: “(1) a confidential relationship between the testator and the
beneficiary; (2) the testator’s poor physical or mental condition; and (3) the beneficiary’s involvement in the
procurement of the will in question.” Estate of Hamilton v. Morris, 67 S.W.3d 786, 792 (Tenn. Ct. App.
2001) (quoting Mitchell v. Smith, 779 S.W.2d 384, 388 (Tenn. Ct. App. 1989)). However, other suspicious
circumstances are also recognized: “(1) secrecy concerning the will’s existence; (2) the testator’s advanced
age; (3) the lack of independent advice in preparing the will; (4) the testator’s illiteracy or blindness; (5) the
unjust or unnatural nature of the will’s terms; (6) the testator being in an emotionally distraught state; (7)
discrepancies between the will and the testator’s expressed intentions; and (8) fraud or duress directed toward
the testator.” Id. at 792-93.

                                                      -28-
Ct. App. 1989)). “The burden of proof regarding a confidential relationship rests upon the
party claiming the existence of such a relationship.” Childress, 74 S.W.3d at 328.

Generally, confidential relationships arise in two situations: (1) “legal confidential
relationships” and (2) “family and other relationships.” Estate of Brevard, 213 S.W.3d at
302-03 (quoting Matlock v. Simpson, 902 S.W.2d 384, 385-86 (Tenn. 1995)). A legal
confidential relationship arises when there is some legal connection between the dominant
party and the weaker party, such as when a power of attorney is executed granting certain
power to the dominant party. This type of relationship is confidential per se. Id.

In contrast, family relationships are not confidential per se. The party seeking to prove a
confidential relationship in a familial context must prove the elements of “dominion and
control” or some other condition indicating that the free will of the donor was destroyed and
that the will of the donee was substituted therefor. Id.; Kelly v. Allen, 558 S.W.2d 845, 848
(Tenn. 1977). Dominion and control has been described as a relationship in which
“confidence is placed by one in the other and the recipient of that confidence is the dominant
personality, with ability, because of that confidence, to influence and exercise dominion and
control over the weaker or dominated party.” Mitchell, 779 S.W.2d at 389 (quoting
Iacometti v. Frasinelli, 494 S.W.2d 496, 499 (Tenn. Ct. App. 1973)).

Proof of a family relationship “coupled with proof of domination and control” establishes a
confidential relationship. However, such proof “does not make out a prima facie claim of
undue influence unless an additional suspicious circumstance exists.” Estate of Brevard,
213 S.W.3d at 303 (citing Kelley, 96 S.W.3d at 197). Thus, where the plaintiff establishes
a confidential relationship by showing a family relationship coupled with proof of
“domination and control,” in order to establish undue influence, the plaintiff must go on to
prove the existence of a suspicious circumstance.34

In this case, the Plaintiff’s claims of undue influence against Mrs. Yohanek and Mr. John G.
Storey are based on these two Defendants’ family relationship with Mrs. Storey.35 At trial,
in order to establish her claims of undue influence against these two Defendants, the Plaintiff


34
 In Tennessee, “the existence of a confidential relationship, followed by a transaction wherein the dominant
party receives a benefit from the other party, [raises] a presumption of undue influence[.]” Matlock, 902
S.W.2d at 386. This presumption is rebuttable. See Estate of Neely, No. M2000-01144-COA-R3-CV, 2001
WL 1262598, at *5 (Tenn. Ct. App. Oct. 22, 2001). “It can be rebutted, but only by clear and convincing
evidence of the fairness of the transaction.” Id. (citing Matlock, 902 S.W.2d at 386).
35
  The fact that Mrs. Storey and Mrs. Yohanek are joint signators on a checking account does not create a
fiduciary relationship that is confidential per se, but it is relevant to show dominion and control over Mrs.
Storey.

                                                    -29-
will have the burden of showing that these Defendants exerted “dominion and control” over
Mrs. Storey, or that her will was somehow destroyed and replaced by the will of the
Defendants. Conversely, however, to obtain summary judgment on these claims under the
Hannan summary judgment framework, the Defendants must negate this element, that is,
the Defendants must show by undisputed facts that they did not exert dominion and control
over Mrs. Storey. Fortune, 2010 WL 3984705, at *3. We analyze the evidence on the undue
influence claims first as to Mrs. Yohanek and then as to Mr. John G. Storey.

                                            Mrs. Yohanek

In their motion for partial summary judgment, the Defendants sought to negate the
“confidential relationship” element of the Defendants’ claim against Mrs. Yohanek by
arguing that, although there was a family relationship, Mrs. Yohanek did not exert dominion
and control over Mrs. Storey. In support of this argument, they submitted their own
affidavits, which stated that, except during a short period after her stroke, Mrs. Storey was
capable of managing her financial affairs and did so. In their statement of undisputed
material facts, the Defendants stated that Mrs. Storey was physically disabled after her 2001
stroke, but that, except for a short time, she remained capable of managing her own affairs.
The Plaintiff admitted that Mrs. Storey was physically disabled and added that she was
mentally disabled as well, unable to speak or write. In addition, the Plaintiff denied the
Defendants’ assertion that Mrs. Storey had the capacity to handle her own affairs after her
massive stroke, claiming that Mr. Yohanek and Mrs. Yohanek “took total control of [Mrs.
Storey’s] affairs in March 2001.”36 The Plaintiff also argued that Mrs. Yohanek had a
confidential relationship with Mrs. Storey by virtue of the fact that she was a signatory on
Mrs. Storey’s checking account. The trial court found that the Plaintiff’s evidence was
insufficient to rebut the Defendants’ proof that a confidential relationship did not exist
between Mrs. Storey and Mrs. Yohanek.

On appeal, the Plaintiff argues that the Defendants’ affidavits contained only conclusory
allegations, and that the trial court erroneously shifted the burden to the Plaintiff to rebut the
Defendants’ claims. Furthermore, the Plaintiff claims that the trial court erred in finding that
the evidence she submitted was insufficient to support a finding of a confidential relationship
between Mrs. Storey and Mrs. Yohanek, and she argues that a confidential relationship is
demonstrated by the fact that Mrs. Yohanek “had access to Mrs. Storey’s bank accounts, into
which Mrs. Yohanek made no deposits, but from which Mrs. Yohanek wrote herself a check
for $150,000 that was used in the purchase of a new residence for Mr. and Mrs. Yohanek.”



36
 The Defendants argued that the Plaintiff’s assertion of these additional facts was not in compliance with
Tenn. R. Civ. P. 56.

                                                  -30-
This issue of whether a confidential relationship arose from a relationship that is not a
fiduciary relationship is a question of fact. Estate of Brevard, 213 S.W.3d at 303. A number
of considerations are material to the issue, including the degree of Mrs. Storey’s physical and
mental disability, the fact that Mrs. Yohanek was a signatory on Mrs. Storey’s bank account,
the fact that the joint bank account contained only Mrs. Storey’s money, the degree to which
Mrs. Storey was dependent on Mrs. Yohanek because of Mrs. Storey’s undisputed physical
disability, and the degree to which Mrs. Storey relied on Mrs. Yohanek, physically, mentally,
and emotionally, with respect to her banking and financial affairs. See In re Estate of
Schisler, 316 S.W.3d 599, 609 (Tenn. Ct. App. 2009); Estate of Brevard, 213 S.W.3d at 303-
05; In re Estate of Neely, No. M2000-01144-COA-R3-CV, 2001 WL 126598, at *4-5 (Tenn.
Ct. App. Oct. 22, 2001). Moreover, the fact that Mrs. Yohanek’s husband had a per se
confidential relationship with Mrs. Storey may appropriately be considered.

It must be emphasized that the Hannan summary judgment standard does not place the
burden on the Plaintiff at the summary judgment stage to prove a confidential relationship;
the burden is on the Defendants to negate the claim, that is, to show conclusively that there
was not a confidential relationship between Mrs. Yohanek and Mrs. Storey. Merely
submitting affidavits to the effect that Mrs. Storey managed her financial affairs is
insufficient in light of the undisputed evidence of Mrs. Storey’s physical condition and the
other undisputed facts upon which the Plaintiff relies. The record simply does not
conclusively establish the degree of physical, mental, and emotional dependence Mrs. Storey
had on Mrs. Yohanek, even assuming that Mrs. Storey in fact “managed” her own financial
affairs. Thus, the evidence submitted by the Defendants did not shift the burden of
production to the Plaintiff.

Under these circumstances, we must conclude that the trial court erred in granting summary
judgment in favor of Mrs. Yohanek on the Plaintiff’s claim of undue influence.

                                     Mr. John G. Storey

The Plaintiff also argues that the trial court erred in granting summary judgment on her
undue influence claim against Mr. John G. Storey. On appeal, she argues that Mr. John G.
Storey, “who received regular cash distributions of Mrs. Storey’s funds from Mr. and Mrs.
Yohanek, either had a confidential relationship with Mrs. Storey, or acted in concert with Mr.
and Mrs. Yohanek through their confidential relationship to take Mrs. Storey’s property.”

Under a “put up or shut up” standard, the Plaintiff’s claim that Mr. John G. Storey had a
confidential relationship with Mrs. Storey would fail. The Plaintiff cites little in the way of
specific, factual, or evidentiary support for her assertion that a confidential relationship
existed between Mrs. Storey and Mr. John G. Storey, or that Mr. John G. Storey exerted

                                             -31-
dominion and control over Mrs. Storey. She claims only that he acted in concert with the
other Defendants to benefit from Mrs. Storey’s assets to Mrs. Storey’s detriment, and asserts
a few specific instances in which Mr. John G. Storey used Mrs. Storey’s VISA card to make
purchases for himself, and one instance in which Mr. John G. Storey wrote a check on Mrs.
Storey’s bank account. Mr. John G. Storey testified in his deposition that the checks came
from either Mrs. Storey or Mr. Yohanek, and that Mrs. Storey allowed him to use her credit
card at his discretion. The trial court found that there were “no facts to support the Plaintiff’s
claim of undue influence against the defendant Mr. Storey.”

However, we are compelled to utilize the summary judgment standard adopted by our
Supreme Court in Hannan. As we interpret it, to obtain summary judgment on the claim of
undue influence, Mr. John G. Storey must essentially prove a negative, that is, must establish
conclusively that he did not have a confidential relationship with Mrs. Storey. As noted in
Fortune, “[a] party will not succeed on a motion for summary judgment merely by asserting
that the nonmoving party is without evidence to support its claims.” Fortune, 2010 WL
3984705, at *3. The moving party must “disprove an essential factual claim made by the
nonmoving party.” Id.

Here, it is undisputed that Mrs. Storey was completely physically disabled and that Mr. John
G. Storey received the benefit of gifts from Mrs. Storey’s assets. As noted above in our
analysis of the claim against Mrs. Yohanek, affidavits asserting that Mrs. Storey “managed”
her financial affairs do not “disprove” the Plaintiff’s assertion that Mr. John G. Storey had
a confidential relationship with Mrs. Storey. In the absence of evidence from the Defendants
showing, based on undisputed facts, that Mr. John G. Storey did not have a confidential
relationship with Mrs. Storey, the burden of production was not shifted to the Plaintiff.

Therefore, despite the thin evidence submitted by the Plaintiff as to Mr. John G. Storey,
under the Hannan analytical framework for a summary judgment motion, we must conclude
that the trial court erred in granting summary judgment in favor of Mr. John G. Storey on the
issue of undue influence.

                                           Conversion

The Plaintiff next argues that the trial court erred in granting summary judgment in favor of
Mr. Yohanek and Mr. John G. Storey on her conversion claim.37 The trial court found that
the evidence submitted by the Defendants negated a finding that they exerted dominion and
control over Mrs. Storey’s property, in that the affidavits stated that Mrs. Storey was capable


37
 The trial court denied summary judgment in favor of Mrs. Yohanek on the claim of conversion, but the
Plaintiff has since voluntarily dismissed that claim.

                                                -32-
of managing her own financial affairs and did so. The trial court also considered the
evidence showing Mrs. Storey had a history of making gifts. Finding that the Plaintiff could
not prove the dominion and control element of her conversion claim, the trial court held that
summary judgment in favor of Mr. Yohanek and Mr. John G. Storey was proper.

“A conversion, in the sense of the law of trover, is the appropriation of the thing to the
party’s own use and benefit, by the exercise of dominion over it, in defiance of plaintiff’s
right.” Barger v. Webb, 391 S.W.2d 664, 665 (Tenn. 1965). Conversion is an intentional
tort, and a party seeking to make out a prima facie case of conversion must prove: (1) the
appropriation of another’s property to one’s own use and benefit, (2) by the intentional
exercise of dominion over it, (3) in defiance of the true owner’s rights. Mammoth Cave
Prod. Credit Ass’n v. Oldham, 569 S.W.2d 833, 836 (Tenn. Ct. App. 1977).

We consider first the conversion claim as to Mr. Yohanek, and then as to Mr. John G. Storey.

                                        Mr. Yohanek

In her complaint, the Plaintiff alleged that Mr. Yohanek, alone and together with the other
Defendants, used the assets of Mrs. Storey for his own purposes. She claimed that he made
excessive withdrawals from Mrs. Storey’s retirement, savings, and annuity accounts, and that
he made substantial purchases on credit cards for his own purposes to the detriment of Mrs.
Storey. In addition, she alleged that Mr. Yohanek made excessive gifts from Mrs. Storey’s
estate that were outside of his authority, made under the auspices of a power of attorney that
did not include the authority to make gifts, and made while Mrs. Storey was incompetent.
The Plaintiff claimed that “[t]he actions of the Defendants constitute conversion of the
property of Mrs. Storey and her Estate.”

In their motion for partial summary judgment, the Defendants did not seek summary
judgment on the claim of conversion as to Mr. Yohanek. Nevertheless, the trial court granted
summary judgment to Mr. Yohanek on this claim.

On appeal, both parties argue the issue substantively, arguing as to Mr. Yohanek and Mr.
John G. Storey together, and do not refer to the fact that summary judgment was not sought
on the claim as to Mr. Yohanek. The Plaintiff states that she “relied upon the same facts she
presented to support her claims” of undue influence, and that she “cited sufficient material
facts to the Trial Court to establish that genuine issues of material fact exist as to her claims
against the Defendants for conversion.” The Defendants respond that no evidence was
submitted to establish that either Mr. Yohanek or Mr. John G. Storey exerted dominion or
control over Mrs. Storey’s assets in defiance of her rights, so the elements of conversion
cannot be established.

                                              -33-
Because the Defendants did not move for summary judgment in favor of Mr. Yohanek on the
claim of conversion, we must conclude that the trial court erred in granting summary
judgment to Mr. Yohanek on this claim. Thus, we reverse the grant of summary judgment
in favor of Mr. Yohanek for conversion to the extent that those claims are not barred by the
statute of limitations.

                                            Mr. John G. Storey

The Defendants argued in their motion for partial summary judgment that Mr. John G. Storey
was entitled to summary judgment on the Plaintiff’s conversion claim, asserting that there
was no evidence that he “ever appropriated anything of Ms. Eloise Storey’s for his own use
and benefit.” The Plaintiff did not allege that Mr. John G. Storey had any control whatsoever
over Mrs. Storey’s bank account; rather, she alleged that Mr. John G. Storey received cash
gifts from his mother in the form of checks written by Mr. Yohanek, and used Mrs. Storey’s
credit card to make purchases for his own benefit. Mr. John G. Storey conceded that, during
Mrs. Storey’s lifetime, he received gifts from her in the form of checks on Mrs. Storey’s bank
account, but he stated that those checks were given to him either directly by his mother or on
his mother’s behalf by Mr. Yohanek. In his deposition, Mr. John G. Storey conceded that
he used Mrs. Storey’s credit card for some purchases, but he testified that Mrs. Storey gave
him her credit card to use at his discretion.38

We find that the trial court properly granted summary judgment in favor of Mr. John G.
Storey on the Plaintiff’s conversion claim. In order to establish a claim of conversion, a
plaintiff must show the defendant appropriated another’s property to one’s own use and
benefit through dominion and control in defiance of the other person’s rights. Here, the
undisputed evidence submitted by the Defendants showed that Mr. John G. Storey did not
exert dominion and control over either Mrs. Storey’s bank account or her VISA account, but
that the checks written to Mr. John G. Storey from Mrs. Storey’s bank account, except for
one, was written by either Mr. or Mrs. Yohanek and given to Mr. John G. Storey.
Furthermore, Mr. John G. Storey’s testimony that his mother willingly gave him her credit
card for his own use is undisputed by the Plaintiff.39 Thus, the Defendants negated the



38
  Some VISA statements were entered into evidence, but it is unclear who made the various charges. Mr.
John G. Storey testified that he used the card his mother gave him to “charge a few tanks of gas,” and that
he had the authority to do this. The Plaintiff argued that Mr. John G. Storey used the VISA credit card to
purchase concrete materials for the Tunica fishing camp property owned by Mrs. Storey that “he knew he
would inherit.” When the purchases were made, however, Mrs. Storey owned the fishing camp property, so
any purchase made for the improvement of that property inured to her benefit during her lifetime.
39
     Whether Mr. John G. Storey obtained that credit card through undue influence is a different issue.

                                                      -34-
Plaintiff’s claim that Mr. John G. Storey exerted dominion and control over Mrs. Storey’s
assets in defiance of her rights.

The burden was therefore shifted to the Plaintiff to submit evidence to show that Mr. John
G. Storey’s acquisition of Mrs. Storey’s assets resulted from his own dominion and control
over the property in defiance of Mrs. Storey’s rights. This she did not do; instead, she
submitted a statement of material facts in which she identified numerous transactions made
by all of the Defendants from her mother’s bank account or on her VISA credit card that the
Plaintiff claimed were unauthorized. Even on appeal, the Plaintiff relies on “the same facts
she presented to support her claims [of] undue influence,” and she states generally that those
facts “establish that genuine issues of material fact exist as to her claims . . . for conversion.”
For this reason, we agree with the trial court’s finding that the Defendants submitted
evidence that negated the Plaintiff’s assertion that Mr. John G. Storey appropriated property
of Mrs. Storey in defiance of her rights, and that the Plaintiff failed to submit any evidence
to rebut Mr. John G. Storey’s evidence that each gift was authorized. Accordingly, we find
that summary judgment in favor of Mr. John G. Storey on the conversion claim was
appropriate.

                                      Breach of Fiduciary Duty

The Plaintiff argues on appeal that the trial court erred in granting summary judgment in
favor of Mr. Yohanek on the claim for breach of his fiduciary duties in his capacity as Mrs.
Storey’s attorney in fact during Mrs. Storey’s lifetime.40 The Defendants assert that the trial
court’s grant of summary judgment in favor of Mr. Yohanek should be affirmed.41 We
observe, however, that the Defendants’ motion for partial summary judgment does not seek
summary judgment in favor of Mr. Yohanek on the Plaintiff’s claim that he breached his
fiduciary duty to Mrs. Storey as her attorney in fact. Nevertheless, the trial court granted
summary judgment in favor of Mr. Yohanek on this claim.




40
  Although the trial court granted summary judgment in favor of Mrs. Yohanek and Mr. John G. Storey on
the Plaintiff’s breach of fiduciary duty claim, the Plaintiff challenges only the grant of summary judgment
against Mr. Yohanek in this regard.
41
  The Plaintiff also alleges that the trial court erred in granting summary judgment in favor of Mr. Yohanek
on the allegation that he breached his fiduciary duty as the executor of Mrs. Storey’s estate. The Defendants
acknowledge that the trial court “did not delineate the basis for dismissing the claim of breach of fiduciary
duty against Mr. Yohanek, in his capacity as Executor.” We need not address Plaintiff’s argument in this
regard because, as we have found, the trial court did not, in fact, grant summary judgment in favor of Mr.
Yohanek on this claim, and it remains pending before the trial court.

                                                    -35-
As with the Plaintiff’s claim of conversion against Mr. Yohanek, because the Defendants did
not seek summary judgment in favor of Mr. Yohanek on this claim, the trial court’s grant of
summary judgment in favor of Mr. Yohanek on the breach of fiduciary claim must be
reversed.

Even assuming arguendo that summary judgment was requested by Mr. Yohanek on this
claim, we would conclude based on this record that summary judgment in favor of Mr.
Yohanek is not warranted under the Hannan summary judgment standard. The holder of a
power of attorney, i.e., the dominant party, serves in a fiduciary relationship to the grantor
of the power to the extent the holder exercises the powers granted. See T.C.A. § 34-6-107;42
see also Matlock, 902 S.W.2d at 386. As the agent of the grantor, the dominant party is
bound to exercise the utmost good faith, loyalty, and honesty toward the grantor. See
Roberts v. Iddins, 797 S.W.2d 615, 617 (Tenn. Ct. App. 1990). Therefore, as Mrs. Storey’s
attorney in fact, Mr. Yohanek owed her a fiduciary duty to act on her behalf at all times with
the utmost good faith, loyalty, and honesty.

Furthermore, assuming, but not deciding, that Mr. Yohanek was authorized under the power
of attorney to gift Mrs. Storey’s money and assets, gifts given by one holding a power of
attorney must be consistent with the principal’s history of gift-giving. See T.C.A. § 34-6-
110.43 Therefore, any gifts given by Mr. Yohanek were required to be made “in accordance


42
     This statute provides:

           An attorney in fact is in a fiduciary relationship with the principal, but only to the extent that
           the attorney in fact undertakes to act under the power of attorney. Among the fiduciary
           duties required by law, an attorney in fact has a duty to adequately account to the principal,
           or to any legal representative of the principal appointed by the principal or by a court, for
           actions taken by the attorney in fact in the exercise of the power of attorney. It is the intent
           of the general assembly that this section have retroactive application.

T.C.A. § 34-6-107 (2007).
43
     The statute provides:

           (a) If any power of attorney or other writing:

                   (1) Authorizes an attorney-in-fact or other agent to do, execute or perform
                   any act that the principal might or could do; or

                   (2) Evidences the principal’s intent to give the attorney-in-fact or agent full
                   power to handle the principal's affairs or to deal with the principal's
                   property;
                                                                                                       (continued...)

                                                         -36-
with the principal’s personal history of making or joining in the making of lifetime gifts.”
Id. Though the record contains some evidence of Mrs. Storey’s gift-giving, it certainly does
not conclusively establish that the gifts by Mr. Yohanek were in accordance with Mrs.
Storey’s history of gift-giving prior to her execution of the power of attorney in 1998.

Thus, the evidence proffered by the Defendants is clearly insufficient to negate an element
of the Plaintiff’s breach of fiduciary duty claim against Mr. Yohanek. The Defendants
submitted no evidence of Mrs. Storey’s knowledge and participation in specific transactions.
The evidence does not conclusively establish that Mr. Yohanek acted in Mrs. Storey’s best
interest or with the utmost good faith, loyalty, and honesty, either in the transactions
generally or with respect to specific transactions. This is the Defendants’ burden under the
summary judgment analytical framework in Hannan.

For these reasons, we reverse the grant of summary judgment in favor of Mr. Yohanek on
the Plaintiff’s claim that he breached his fiduciary duty to Mrs. Storey as her attorney in fact.

                                               Civil Conspiracy

In the Defendants’ motion to dismiss and/or for partial summary judgment, the Defendants
argued that the Plaintiff’s claims based on civil conspiracy should be dismissed for failure
to state a claim upon which relief can be granted. They alleged that the Plaintiff made “no
specific allegation as to how the Defendants acted jointly in a civil conspiracy,” and that
mere conjecture and conclusory allegations unsupported by material facts are not sufficient
to state a claim for civil conspiracy. In response, the Plaintiff argued that “the facts
contained in her pleadings and Statement of Facts, taken in a light most favorable to her,
establish all of the elements of the causes of action for civil conspiracy . . . required by
Kincaid v. SouthTrust Bank, 221 S.W.3d 32, 38 ([Tenn. Ct. App.] 2006).” The trial court
addressed the civil conspiracy claims as a part of the Defendants’ motion for partial summary
judgment, rather than as a motion to dismiss. In doing so, the trial court held that the
Defendants were entitled to summary judgment on these claims because the Plaintiff offered


43
     (...continued)

           then the attorney-in-fact or agent shall have the power and authority to make gifts, in any
           amount, of any of the principal’s property . . . in accordance with the principal's personal
           history of making or joining in the making of lifetime gifts. This section shall not in any way
           limit the right or power of any principal, by express words in the power of attorney or other
           writing, to authorize, or limit the authority of, any attorney-in-fact or other agent to make
           gifts of the principal’s property.

T.C.A. § 34-6-110(a) (2007) (emphasis added).

                                                        -37-
no proof that the Defendants acted in concert together to accomplish any of the allegedly
unlawful acts.

On appeal, the Plaintiff argues that the trial court erred in granting the Defendants summary
judgment on her claim that “the Defendants conspired with one another in their exercise of
undue influence over Mrs. Storey and in their conversion of her property.” She argues that,
in her response to the Defendants’ motion for partial summary judgment, she “presented
evidence to support her contention that the Defendants acted in concert through the use of
bank accounts, [through] use of credit cards, through gift tax returns, and for their respective
benefits, without regard to the interests of Mrs. Storey or Mrs. Huber.” In her appellate brief,
the Plaintiff cites to the excerpt from the deposition of Mr. John G. Storey, copies of tax
returns prepared by Mr. Yohanek on behalf of Mrs. Storey and her estate, Mrs. Storey’s
financial ledgers from 2001 through her death in March 2006, and VISA statements from the
relevant time period. Because she “pleaded and presented the required “underlying predicate
tort” [of] undue influence and conversion,” the Plaintiff argues, and she further “presented
facts in response to the Defendant’s Motion for Summary Judgment that established for the
Court that the Defendants acted together in the years prior to Mrs. Storey’s death to help
themselves to her assets,” the Defendants were not entitled to summary judgment on her civil
conspiracy claims.

In response, the Defendants again argue that the Plaintiff’s complaint should be dismissed
on its face, because it alleges “nothing more than . . . mere conjecture and conclusory
allegations that the Defendants acted in concert with each other,” and the Plaintiff “made no
specific allegation of a material fact that” could support a finding of civil conspiracy among
these Defendants. The Defendants further claim that, even if the Plaintiff’s complaint sets
forth sufficient facts to state a claim for conspiracy, the Defendants submitted sufficient
evidence to negate at least one element of the cause of action, and summary judgment on this
claim was warranted.

We first address whether the trial court erred in failing to dismiss the Plaintiff’s claims for
civil conspiracy for failure to state a claim upon which relief could be granted.44 Tenn. R.
Civ. P. 12.02(6). In doing so, we recognize that a motion to dismiss for failure to state a
claim seeks only to determine whether the plaintiff has properly set out a cause of action; it
“challenges the legal sufficiency of the complaint, not the strength of the plaintiff’s proof.”
Trau-Med of America, Inc. v. Allstate Insurance Company, 71 S.W.3d 691, 696-97 (Tenn.
2002). The Trau-Med of America Court explained:


44
 Although the trial court treated the Defendants’ motion to dismiss as a motion for summary judgment, the
Defendants have consistently argued in the trial court and on appeal that the Plaintiff’s complaint should
have been dismissed on its face.

                                                  -38-
       A Rule 12.02(6) motion to dismiss only seeks to determine whether the
       pleadings state a claim upon which relief can be granted. Such a motion
       challenges the legal sufficiency of the complaint, not the strength of the
       plaintiff’s proof, and, therefore, matters outside the pleadings should not be
       considered in deciding whether to grant the motion. See Bell ex rel. Snyder
       v. Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 986 S.W.2d 550,
       554 (Tenn.1999). In reviewing a motion to dismiss, the appellate court must
       construe the complaint liberally, presuming all factual allegations to be true
       and giving the plaintiff the benefit of all reasonable inferences. See Pursell v.
       First Am. Nat'l Bank, 937 S.W.2d 838, 840 (Tenn. 1996). It is well-settled
       that a complaint should not be dismissed for failure to state a claim unless it
       appears that the plaintiff can prove no set of facts in support of his or her claim
       that would warrant relief. See Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.
       1999); Fuerst v. Methodist Hosp. S., 566 S.W.2d 847, 848 (Tenn. 1978).
       Great specificity in the pleadings is ordinarily not required to survive a motion
       to dismiss; it is enough that the complaint set forth “a short and plain statement
       of the claim showing that the pleader is entitled to relief.” White v. Revco
       Disc. Drug Ctrs., Inc., 33 S.W.3d 713, 718 (Tenn. 2000) (citing Tenn. R. Civ.
       P. 8.01).

Trau-Med of Am., 71 S.W.3d at 696-97. Whether a trial court has erred in ruling on a
motion to dismiss for failure to state a claim is a question of law, which we review de novo,
with no presumption of correctness in the trial court’s decision. Doe v. Catholic Bishop for
Diocese of Memphis, 306 S.W.3d 712, 717 (Tenn. Ct. App. 2008).

This Court has set out the elements necessary to establish a claim for civil conspiracy: “(1)
a common design between two or more persons, (2) to accomplish by concerted action an
unlawful purpose, or a lawful purpose by unlawful means, (3) an overt act in furtherance of
the conspiracy, and (4) resulting injury.” Kincaid, 221 S.W.3d at 38. In addition, a claim
for civil conspiracy “requires an underlying predicate tort allegedly committed pursuant to
the conspiracy.” Watson’s Carpet & Floor Coverings, Inc. v. McCormick, 247 S.W.3d 169,
180 (Tenn. Ct. App. 2007). Conspiracy, standing alone, is not actionable where the
underlying tort is not actionable. Id. at 179-80. While “great specificity in the pleadings is
ordinarily not required,” civil conspiracy claims must be pled with some degree of specificity
in order to survive a motion to dismiss; conclusory allegations unsupported by material facts
will not be sufficient to state a claim. Kincaid, 221 S.W.3d at 38 (citing McGee v. Best, 106
S.W.3d 48, 64 (Tenn. Ct. App. 2002)); see also O’Dell v. O’Dell, 303 S.W.3d 694, 697
(Tenn. Ct. App. 2008) (quoting Kincaid, 221 S.W.3d at 38). We turn now to the Plaintiff’s
complaint to determine whether the allegations therein properly set out a claim for civil
conspiracy.

                                              -39-
Without using the term “civil conspiracy,” the Plaintiff’s complaint alleges that the
Defendants acted “jointly and severally” and that they “acted together and in concert,” both
during her lifetime and after her death, to deprive Mrs. Storey and her estate of assets for
their separate purposes and benefit. The Plaintiff does not enumerate “civil conspiracy” as
a separate cause of action in her complaint, nor is the term “civil conspiracy” used in the
complaint. Rather, the Plaintiff states that, after she reviewed Mrs. Storey’s records, she
“learned that [the Defendants] seemed to be collaborating on using the assets of Mrs. Storey
for their own purposes.” She then lists allegedly wrongful actions taken by each of the
Defendants individually and states that the Defendants “acted together and in concert in
abusing confidential and fiduciary relationships each had with regard to Mrs. Storey and her
assets.” Under the section of the complaint entitled “Theories of Recovery,” the Plaintiff
alleges that the all of the Defendants were liable for undue influence, breach of fiduciary
duties to Mrs. Storey and the estate, and conversion, and that all of these wrongs were
committed “jointly and severally” by the Defendants for their own separate benefit. In the
section of the complaint entitled “Damages Sought,” the Plaintiff again states that “[t]he
Defendants acted together in concert and aided and abetted one another in their actions
alleged above for which they should be held liable to the Estate, jointly and severally.”

Although the Plaintiff sets out numerous allegations of fact that describe tortious conduct by
the Defendants individually, she does not identify any material facts that would support a
claim that the Defendants acted with a common design to accomplish an unlawful purpose.
Rather, as argued by the Defendants, the Plaintiff has merely set out conclusory statements
that the Defendants acted “jointly and severally,” and that they acted “in concert.” Such a
formulaic recitation of basic terms implying that a conspiracy exists is insufficient to state
a claim for relief for civil conspiracy. See Hermosa Holdings, Inc. v. Mid-Tennessee Bone
& Joint Clinic, P.C., No. M2008-00597-COA-R3-CV, 2009 WL 711125, at *8 (Tenn. Ct.
App. Mar. 16, 2009). Even on appeal, the Plaintiff does not identify material facts in her
complaint that support her claim that these Defendants had a common design to accomplish,
by a concerted action, an unlawful purpose or a lawful purpose by unlawful means. Rather,
the Plaintiff has set forth in her complaint wrongful acts allegedly committed by the
individual Defendants, and then makes the conclusory assertion that they were committed
“jointly and severally” and “in concert” with no material facts to support her claim.
Therefore, because the Plaintiff did not plead civil conspiracy with the necessary specificity,
we must find that the complaint fails to state a claim for civil conspiracy with respect to both
the claims brought on behalf of the estate and the claims brought on her own behalf as a
beneficiary of the estate. On this basis, we affirm the trial court’s dismissal of the Plaintiff’s
claim of civil conspiracy.




                                              -40-
              Motion to Alter or Amend or Set Aside and Motion to Compel

Finally, the Plaintiff argues that the trial court erred in denying the motion to alter or amend
and the motion to compel production of documents.45 We review the denial of a motion to
alter or amend for an abuse of discretion. See Chambliss v. Stohler, 124 S.W.3d 116, 120
(Tenn. Ct. App. 2003). We also review the denial of a motion to compel production for an
abuse of discretion. Deuel v. Surgical Clinic, PLLC, No. M2009-01551-COA-R3-CV, 2010
WL 3237297, at *6 (Tenn. Ct. App. Aug. 16, 2010). An abuse of discretion occurs when the
trial court “applies an incorrect standard, or reaches a decision which is against logic or
reasoning that causes an injustice to the party complaining.” Caldwell v. Hill, 250 S.W.3d
865, 869 (Tenn. Ct. App. 2007). Under this standard, we must uphold the trial court’s
decision “as long as reasonable minds could disagree about its correctness.” Id.

The trial court denied the Plaintiff’s motion to alter or amend because all of the evidence she
submitted in support of the motion – her affidavit and Dr. Koplon’s medical records for Mrs.
Storey from 2004-2006 – were available prior to the motion for summary judgment. The trial
court found that these records should have been submitted in response to the Defendants’
summary judgment motion. In addition, the trial court noted that the pre-2004 medical
records had been missing since July 2008, when Dr. Koplon produced the post-2004 records.
The trial court found that it was incumbent upon the Plaintiff to either issue another subpoena
to Dr. Koplon for the missing records, or put the court and the parties on notice that
discovery was still pending on these records. Under these circumstances, the trial court
concluded that “[a]n exercise of due diligence would require a combination of these actions.”
The trial court rejected the Plaintiff’s argument that Mrs. Storey’s incompetence or the
Defendants’ fraudulent concealment should toll the statute of limitations, because these legal
arguments were not raised prior to the hearing on the motion for summary judgment.

In Harris v. Chern, supra, the Tennessee Supreme Court held that, when additional evidence
is submitted to support a motion to revise a grant of summary judgment pursuant to Rule
54.02 of the Tennessee Rules of Civil Procedure, a trial court should consider, when
applicable: (1) the movant’s efforts to obtain evidence to respond to the motion for summary
judgment; (2) the importance of the newly submitted evidence to the movant’s case; (3) the
explanation offered by the movant for its failure to offer the newly submitted evidence in its
initial response to the motion for summary judgment; (4) the likelihood that the nonmoving
party will suffer unfair prejudice; and (5) any other relevant factor. “Even though Harris v.
Chern involved a Tenn. R. Civ. P. 54.02 motion, we have consistently used its standards to
review Tenn. R. Civ. P. 59.04 motions.” Kenyon v. Handal, 122 S.W.3d 743, 763 (Tenn.


45
  The Plaintiff does not argue that the trial court erred in failing to set aside its order granting partial
summary judgment.

                                                   -41-
Ct. App. 2003). “The purpose of a Rule 59.04 motion to alter or amend a judgment is to
provide the trial court with an opportunity to correct errors before the judgment becomes
final.” In re M.L.D., 182 S.W.3d 890, 895 (Tenn. Ct. App. 2005). A motion to alter or
amend should be granted when the controlling law changes before the judgment becomes
final, when previously unavailable evidence becomes available, or when necessary to correct
a clear error of law or prevent injustice. Id. “A Rule 59 motion should not be used to raise
or present new, previously untried or unasserted theories or legal arguments.” Id.

Under this standard, we must conclude that the trial court below did not abuse its discretion
in denying the Plaintiff’s motion to alter or amend. The evidence that the Plaintiff submitted
with her motion to alter or amend was available to her well before the hearing on the motion
for summary judgment. The Plaintiff offered no valid reason why she did not obtain and
submit these documents in support of her argument prior to the hearing on the motion for
summary judgment. The Plaintiff gives no reason why the medical records that she sought
to compel were not discoverable prior to the hearing through due diligence. As the trial court
found, the Plaintiff’s arguments regarding the tolling of the statute of limitations were simply
new legal theories. For all these reasons, we cannot conclude that the trial court abused its
discretion in denying either the Plaintiff’s motion to alter or amend or her motion to compel
production.

                                         C ONCLUSION

In sum, as to the Defendants’ assertion of the statute of limitations as an affirmative defense,
we affirm the trial court’s refusal to toll the statute based on Mrs. Storey’s alleged mental
incompetency or the Defendants’ alleged fraudulent concealment; however, we reverse the
trial court’s ruling on the discovery rule. On the claims of undue influence, we reverse the
grant of summary judgment in favor of Mrs. Yohanek and Mr. John G. Storey. On the claims
of conversion, we reverse the grant of summary judgment in favor of Mr. Yohanek, and
affirm the grant of summary judgment in favor of Mr. John G. Storey. We affirm the trial
court’s dismissal of all claims based on civil conspiracy, albeit for different reasons. We
reverse the grant of summary judgment in favor of Mr. Yohanek on the breach of fiduciary
duty claim, and note that the claim against Mr. Yohanek based on breach of fiduciary duty
in his capacity as executor of the estate is among the claims that are still pending before the
trial court. Finally, we affirm the trial court’s denial of the Plaintiff’s motion to alter or
amend and the denial of her motion to compel production of documents. The cause must be
remanded for further proceedings.

The decision of the trial court is affirmed in part and reversed in part, as set forth above, and
the cause is remanded for further proceedings consistent with this Opinion. Costs on appeal
are to be taxed one-half to Appellant Peggie Sherrill Huber and her surety, and one-half to

                                              -42-
Appellees Lawrence G. Yohanek, CPA, a/k/a Larry G. Yohanek, Sharron S. Yohanek, and
Mr. John Gary Storey, for which execution may issue, if necessary.




                                              _________________________________
                                              HOLLY M. KIRBY, JUDGE




                                       -43-
