                                                                                         07/25/2017
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs June 1, 2017

                  IN RE: ESTATE OF VIDA MAE MCCARTT

                Appeal from the Chancery Court for Morgan County
                No. P-6-12, 14-79 Frank V. Williams, III, Chancellor
                      ___________________________________

                           No. E2016-02497-COA-R3-CV
                       ___________________________________


Appellant brought this action challenging the settlement agreement reached by the
contestants in a will contest. Appellant, the legitimated child of Decedent’s deceased
son, filed suit to set aside the settlement agreement based on allegations that the will
contestants, including Appellant’s half-siblings, i.e., Appellees, engaged in fraud and
misrepresentation in an effort to exclude Appellant from her share of Decedent’s estate.
Because Appellant had knowledge of the will contest, chose not to participate in the will
contest, and there is no evidence that the Appellees acted in bad faith or fraudulently, we
conclude that the trial court did not err in refusing to order a share of the Decedent’s
estate to be distributed to Appellant. Affirmed and remanded.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR. and W. NEAL MCBRAYER, JJ., joined.

Robert W. Wilkinson, Oak Ridge, Tennessee, for the appellant, Sara Shannon Armes.

David H. Dunaway, LaFollette, Tennessee, for the appellees, Susan Collins, Nancy
Wilson, and Joe McCartt.


                                       OPINION

                                     I. Background

      This is the second appeal of this case involving an agreement among the heirs of
Vida Mae McCartt (“Decedent”) regarding the distribution of assets of Decedent’s estate.
As set out in our first opinion, In re Estate of Vida Mae McCartt, No. E2014-02185-
COA-R3-CV, 2015 WL 5635114 (Tenn. Ct. App. Sept. 25, 2015) (“McCartt I”), on
February 2, 2012, Decedent died testate at the age of 102. McCartt I,. at *1. Decedent
had five children: Betty Jane McCartt Newman, Mary Elizabeth McCartt Sanders, G.M.
McCartt, A.K. McCartt, and J.D. McCartt, Sr. Id. When Decedent executed her will, on
May 18, 1994, her son, A.K. McCartt, was deceased. Id. Decedent’s will bequeathed
$5,000 each to A.K. McCartt’s two children, Kelly McCartt and Ginger McCartt West.
Id. To J.D. McCartt, Sr., who predeceased Decedent, but died after Decedent executed
her will, Decedent bequeathed a mobile home and a truck. Id. The remainder of
Decedent’s property, including real estate holdings of more than $1,000,000, was divided
evenly among her three surviving children. Id.

        On February 23, 2012, a will contest was filed by Decedent’s five grandchildren:
Kelly McCartt and Ginger McCartt West, children of the deceased A.K. McCartt; and
Appellees, Susan Collins, Nancy Wilson, and Joe McCartt, the children of the deceased
J.D. McCartt, Sr.. By their complaint, the grandchildren averred that the May 18, 1994
“instrument is not the Last Will and Testament of Vida Mae McCartt . . . because she was
. . . of unsound mind at the time said paper was executed and she was incompetent to
make a valid Will.” The grandchildren further averred that Decedent was unduly
influenced by G.M. McCartt. McCartt I, at *1. Thereafter, the parties participated in
court-ordered mediation, which culminated in a September 24, 2012 agreement, resolving
all issues among them. Id. at *2. On November 20, 2012, the trial court entered an
order, which incorporated the parties’ September 24, 2012 agreement. The November
20, 2012 order divided Decedent’s real, personal, and residual property, awarding a one-
fifth share to each of Decedent’s three surviving children, one-fifth to the heirs of A.K.
McCartt, and one-fifth to the heirs of J.D.McCartt, i.e., Appellees. The parties’
September 24, 2012 agreement further provides that

      if any claims are filed by individuals asserting an interest as an illegitimate
      child of J.D. McCartt, then the heirs of J.D. McCartt agree to indemnify and
      hold harmless all other heirs of Vida Mae McCartt from any claims which
      may be pursued by purported heirs at law of J.D. McCartt.

       On November 4, 2013, Appellant Sara Shannon Armes filed a complaint, alleging,
in relevant part, that:

             On February 23, 2012 a Complaint to Contest Will was filed with
      this honorable Court in behalf of several of the decedent’s grandchildren. In
      the Complaint, it is asserted that J.D. McCartt, Sr., one of Vida Mae
      McCartt’s children, predeceased his mother and left surviving him three (3)
      children, Susan Collins, Nancy Wilson, and Joe McCartt. In fact, J.D.
      McCartt had four (4) children, one of whom is Sara Shannon Armes.
             Pursuant to Final Order dated December 7, 2004, in the matter styled
                                          -2-
      In re: Estate of Joseph D. McCartt, docket number P–14–02, this
      honorable Court determined that Sara Hickman (now Sara Armes) is the
      daughter of Joseph D. McCartt. A copy of the Final Order is attached
      hereto and made a part hereof. Further, pursuant to Final Settlement of
      Administrator dated March 1, 2005, Sara Hickman (now Sara Armes) was
      entitled to a child’s share of the residuary estate of her father, equal to that
      of Susan V. Collins, Joseph D. McCartt, Jr., and Nancy K. McCartt.
              On November 20, 2012 an Agreed Order was entered in this cause of
      action which approved and incorporated a mediated agreement. This
      Agreement resolved the issues between the parties relative to the will
      contest and determined that the heirs of J.D. McCartt should receive a
      twenty percent (20%) interest in certain liquid assets . . . and certain
      specified real property from the Estate of Vida Mae McCartt, deceased. The
      heirs of J.D. McCartt are listed as Joe McCartt, Susan Collins, and Nancy
      Wilson.
              Sara Shannon Armes avers that she, by law, should be included as an
      heir of J.D. McCartt and therefore entitled to one-fourth (1/4) of the
      distribution of assets passing to the heirs of J.D. McCartt.
              Sara Shannon Armes further avers that Joe McCartt, Susan Collins,
      and Nancy Wilson have perpetrated a fraud on this honorable Court by
      asserting that J.D. McCartt had only three (3) heirs-at-law when each and
      every one of them knew that J.D. McCartt had four (4) heirs-at-law.

      PREMISES         CONSIDERED,            PETITIONER          RESPECTFULLY
      REQUESTS
                                           ***

             That upon a hearing in this cause, this Court determine that Sara
      Armes is entitled to receive an equal share of the distribution of assets
      passing to the heirs of J.D. McCartt from the estate of Vida Mae McCartt.
             Further that the Court award damages to Petitioner as a result of the
      fraud of Joe McCartt, Susan Collins, and Nancy Wilson.


McCartt I, at *2-*3. Attached to the complaint was a copy of the December 8, 2004 final
order of the Morgan County Chancery Court in the matter of J.D. McCartt’s estate,
stating:

              This cause came to be heard ... upon the Petition for Elective Share
      filed by [Armes], the Answer filed in behalf of the estate [of J.D. McCartt,
      Sr.], the testimony of witnesses, [and] the Parentage Testing Report from
      Molecular Pathology Laboratory Network, Inc., a copy of which is attached
      hereto and made a part hereof, and the record as a whole from all of which
                                          -3-
       the Court finds as follows:
              Based on the proof introduced in this cause, the Court is of the
       opinion that [Armes] is the daughter of the decedent, J.D. McCartt.
              The results of the DNA test referenced by the court’s order
       established a 99.9586% probability that Armes is the daughter of J.D.
       McCartt, Sr.


McCartt I, at *3. In response to Ms. Armes’ complaint, the Decedent’s grandchildren
filed a Tennessee Rule of Civil Procedure 12.02(6) motion to dismiss for failure to state a
claim. As grounds for their motion, the grandchildren averred that:

              The Complaint should be dismissed on the basis [of] Res Judicata.
       The original litigation is a will contest and an In Rem proceeding. A Final
       Order has been entered and it is a conclusive adjudication upon all heirs;
       and Sara Shannon Armes is bound[ ] by the ruling.
              At best, any claim of Sara Shannon Armes is limited to the next of
       kin of J.D. McCartt and has no impact, whatsoever, and fails to state a
       claim as to any other heirs, other than Joe McCartt, Susan Collins and
       Nancy Wilson; and it fails to state a claim even as to those three heirs.


McCartt I, at *3. Betty Jane Newman and G.M. McCartt also filed a motion to dismiss,
arguing that “Armes’ lawsuit is in the nature of a lawsuit to contest the will; or more
specifically the probation of the will,” and because “Armes did not join in the original
lawsuit to contest the will, (which she should have under the law), she is bound by the
ruling in the previous lawsuit, and her current petition must fail, and must be dismissed.”
Id. at *4.

        The trial court granted the respective motions to dismiss by order of October 28,
2014. In the order, the court states only that “the complaint is dismissed for failure to
state a cause of action upon which relief can be granted.” Ms. Armes appealed. Id. at *4.
In McCartt I, this Court vacated the trial court’s dismissal of Ms. Armes’ complaint;
specifically, we held that:

               In this case, the record contains no indication of when Armes
       became aware of the will contest or the settlement agreement. Thus, in the
       current posture of the case, it is impossible to say whether Armes had the
       opportunity to make any conscious decision whether to “join the contestant,
       join the proponent, or stand aloof.” More importantly, Petty observes that a
       settlement of a will contest must be done “in good faith,” and we believe
       that the allegations of the complaint raise a legitimate issue of whether the
       settling heirs acted in good faith.
                                            -4-
              Armes’ complaint includes a claim that her siblings defrauded both
       her and the trial court by representing that J.D. McCartt had only three
       surviving children and heirs, and not four as Armes has alleged. Construing
       the complaint liberally, presuming all of Armes’ factual allegations to be
       true and giving her the benefit of all reasonable inferences, her complaint
       alleges, in effect, that the settling heirs deliberately concealed Armes’
       existence and status as J.D. McCartt’s heir, in order to purposely cut her out
       of the settlement agreement, despite being fully aware that she was J.D.
       McCartt’s daughter and heir as established by a prior court order.

McCartt I, at *7 (citing Petty v. Call, 599 S.W.2d 791, 796 (Tenn. 1980)).

      On remand, the trial court held a hearing on May 17, 2016. By order of November
17, 2016, the trial court dismissed Ms. Armes’ complaint. The trial court’s order
provides, in relevant part, that:

       [T]he Court found that there was no evidence of any fraud or duress, undue
       influence or misrepresentation or anything else done toward [Appellant],
       and that each of the parties to the will contest were simply protecting their
       interest without any intent to misrepresent or defraud [Appellant] who
       could have otherwise participated in the will contest had she chosen to do
       so.
              The Court further finds that there is sufficient evidence that
       [Appellant] knew of the probate proceedings and the contents of the Will
       and that it is probable that [Appellant] knew of the existence of the lawsuit
       and could have participated in said lawsuit had she chosen to do so but
       elected not to do so.

Ms. Armes appeals.

                                         II. Issues

       As an initial procedural matter, we note that Appellant’s brief fails to set forth a
statement of the issues presented as required under Tennessee Rule of Appellate
Procedure 27(4) (“The brief of the appellant shall contain under appropriate headings and
in the order here indicated . . . [a] statement of the issues presented for review.”). A
party’s failure to comply with the Rules of Appellate Procedure and the rules of this
Court constitutes waiver. See, e.g., Duchow v. Whalen, 872 S.W.2d 692 (Tenn. Ct. App.
1993). Although the Tennessee Supreme Court has held that it will not find this Court in
error for not considering a case on its merits where a party did not comply with the rules
of this Court, Crowe v. Birmingham & N.W. Ry. Co., 156 Tenn. 349, 1 S.W.2d 781
(1928), for good cause, we may suspend the requirements or provisions of these rules in a
given case. Bean v. Bean, 40 S.W.3d 52, 54 (Tenn. Ct. App. June 19, 2000), perm. app.
                                            -5-
denied (Tenn. Feb. 26, 2001). In the interest of adjudicating this appeal on the merits, we
have reviewed the argument section of Appellant’s brief, and we glean, from her
arguments, that there are three dispositive issues, which we state as follows:

   1. Whether the evidence preponderates against the trial court’s finding that Appellant
      had sufficient notice of the will contest such that she could have participated in the
      lawsuit.
   2. Whether the trial court deviated from this Court’s mandate, in McCartt I, by not
      addressing the issue of whether Appellees acted in good faith.
   3. Whether the evidence preponderates against the trial court’s finding that Appellees
      had not engaged in fraud or misrepresentation.

                                 III. Standard of Review

       Because this case was tried by the court sitting without a jury, we review the trial
court’s findings of fact de novo with a presumption of correctness, unless the evidence
preponderates against those findings. McGarity v. Jerrolds, 429 S.W.3d 562, 566 (Tenn.
Ct. App. 2013); Wood v. Starko, 197 S.W.3d 255, 257 (Tenn. Ct. App. 2006). For the
evidence to preponderate against a trial court’s finding of fact, the weight of the evidence
must “demonstrate... that a finding of fact other than the one found by the trial court is
more probably true.” Williams v. City of Burns, 465 S.W.3d 96, 108 (Tenn. 2015); The
Realty Shop, Inc. v. R.R. Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn. Ct. App.
1999). This Court conducts a de novo review of the trial court’s resolutions of question of
law, with no presumption of correctness. Kelly v. Kelly, 445 S.W.3d 685, 691-92 (Tenn.
2014); Armbrister v. Armbrister, 414 S.W.3d 685, 692 (Tenn. 2013).

                                        IV. Analysis

          A. Whether Appellant had Notice of the Will Contest Proceedings

        It is undisputed that the trial court entered its order on the settlement agreement on
November 20, 2012. Ms. Armes did not file her lawsuit until almost a year later, on
November 4, 2013. In her appellate brief, Ms. Armes argues that, from her testimony, “it
is difficult to comprehend how the Chancellor determined that Ms. Armes ‘probably
knew of the existence of the lawsuit . . . .’” Concerning when she learned of the will
contest and, specifically, the settlement agreement, Ms. Armes testified, in pertinent part,
that she was aware that Decedent had died, and she was also aware that she was not
named as a beneficiary under Decedent’s will. Ms. Armes also acknowledged that she
was aware that she was, in fact, Decedent’s heir-at-law pursuant to the adjudication of
paternity in the Estate of J.D. McCartt, Sr.. Nonetheless, Ms. Armes testified that she
was not aware of the will contest until after the settlement agreement was entered:


                                            -6-
      Q. And you are now aware that the parties to the Will contest participated
      in mediation September 24, 2012?
      A. Aware of it now, not at the time.
      Q. Did anyone call to invite you that there was going to be a meeting—that
      there was going to be a mediation to discuss the Will contest?
      A. No.
      Q. How did you learn of it?
      A. I called to find out if there was anything had come up—had been taken
      care of at the courthouse, and they told me that everything had all been
      settled and cleared. And I said, “Wait.” Okay. So I came to the
      courthouse and I got the paperwork that would be beneficial to me and
      found out that they had came [sic] . . . to an agreement and settled together.
      Basically . . . I feel like they went behind my back and came to an
      agreement, purposely excluding me . . .


Ms. Armes’ direct testimony, however, differs from her testimony on cross-examination.
On cross, Ms. Armes explained:

      Q. Did you ever sit down to actually read the Will that had been published
      and placed through the Probate Court . . .
      A. I tried to read—and didn’t understand it.
      Q. And, so—and when you did that, could you understand it?
      A. Well, parts of it.
      Q. Okay. So parts of it. You knew that by that Will, that—that there were
      certain heirs. . .did you not understand that?

                                           ***

      A. Yes.
      Q. All right. Now—so, the fact that you came to the courthouse to see what
      had happened as a result of the mediation, why did you do that?
      A. Just to see if anything had been settled or . . . if I needed to move
      forward . . . And I came to learn that they had came [sic] to an agreement.
      Q. All right. Well, why didn’t you get your lawyer before that? If you
      knew where to go and you knew they were doing all of this, and you knew
      that the proceeding was here, why did you wait until after the mediation
      agreement, and then not only after that, a year after?
      A. I wasn’t listed in the Will. And, then, time just went by, and then I came
      to—

                                           ***

                                          -7-
      Q. So . . . you’re aware that they went and got a lawyer to contest the Will
      and chose to be represented, and there was a dispute going on with regard
      to whether or not the Will was to be set aside. You were aware of that,
      there was a Will contest, correct?
      A. I didn’t file the contest, though.
      Q. Yes. And, so, what happened is that knowing that, you elected not to
      participate. You were just going to wait the outcome and see what
      happened; is that what I understand? And, then, you came up here and
      checked to see what had happened to your interest?
      A. Yeah. I mean—
      Q. All right. Now, then after that happened, can you tell me why it was that
      you waited over a year after Chancellor Williams had entered this order to
      file anything either in this court or this separate proceeding that you’ve
      alleged that they tried to defraud you?
      A. Because I wasn’t aware that they had gotten together and agree[d] . . . to
      the mediat[ion].
      Q. [But if you had] read the court documents, you would know that, would
      you not? They were public knowledge, you would know that, if you had
      gone in and read, just as you told me you had read the Will. You read the
      will, didn’t you?
      A. I looked over it . . .

The foregoing testimony conflicts with Ms. Armes’ assertion, in her appellate brief, that
“she was not aware of the will contest or a settlement of the will contest until after the
trial court had entered an Order adopting the settlement agreement.” From the record,
Ms. Armes was aware of Decedent’s death, and she was aware that Decedent’s will had
been admitted to probate. Furthermore, at the time of Decedent’s death, Ms. Armes had
been adjudicated to be J.D. McCartt, Sr.’s biological child, and she was aware that she
had not been included as a beneficiary under Decedent’s will. Moreover, at the time of
the will contest, Ms. Armes was still represented by Attorney Robert W. Wilkinson, who
had filed her paternity action in the matter of J.D. McCartt, Sr.’s probate. Nonetheless,
Ms. Armes testified that she chose not to participate in the will contest:

      Q. Now all during this time, Mr. Wilkinson had been your lawyer?
      A. Uh-huh.

                                           ***

      Q. He’s been your lawyer since 2004?
      A. Uh-huh.

                                           ***

                                          -8-
      Q. And if anybody knew that you were an heir, he certainly knew you were
      an heir, didn’t he?
      A. uh-huh, yes.
      Q. And did you ever talk to Mr. Wilkinson when the Will contest came up
      to say, “I want you to represent . . . my interest in a Will Contest”?
      A. Yes, I talked to him.
      Q. Why didn’t he proceed further?
      A. I don’t remember. . . .

To corroborate the fact that Ms. Armes’ attorney, Mr. Wilkinson, knew about the will
contest proceedings, Appellees’ elicited the testimony of Attorney Joseph VanHook, who
represented the heirs, G.M. McCartt and Betty Jane McCartt Newman, in the will contest.
Mr. VanHook testified that he called Mr. Wilkinson early in the will contest litigation to
see if Mr. Wilkinson would be interested in substituting as counsel to represent the
personal representative of Decedent’s estate because the original counsel was
withdrawing due to a conflict. To this end, Mr. VanHook discussed, with Mr. Wilkinson,
the will contest:

      Q. So did you call Wilkinson?
      A. Yes, I called Mr. Wilkinson and outlined the problem and asked if he
      could serve as personal representative . . . and Mr. Wilkinson indicated that
      he probably would end up with a conflict of interest because he had
      represented Ms. Armes in a legitimation case involving the family, and I
      believe he had talked to [Ms. Armes]. . . and that it would be some
      likelihood that if he got involved with the case, he’d have a conflict.

                                           ***

      Q. Did he tell you that he was going to represent [Ms. Armes] . . . .
      A. He did not say that he would represent her. He basically said that she
      was going to wait and see how [the will contest] developed or see what
      happened.

                                           ***

      Q. But he did tell you he was going to wait and see what happened?
      A. Yes.
      Q. Now at that time, the Will Contest had been filed?
      A. Yes, it had been pending for . . . at least three months.

Although Appellant states that it is “obvious logic” that she would have participated, if
she had known the parties were mediating an agreement to include J.D. McCartt, Sr.’s
heirs, the foregoing testimony belies this assertion. From the totality of the
                                          -9-
circumstances, it appears that Ms. Armes had actual knowledge of the probated will and
the fact that it did not provide for J.D. McCartt, Sr.’s heirs. As an adjudicated heir of J.D.
McCartt, Sr., Ms. Armes could have contested Decedent’s will in an independent action.

        Furthermore, Mr. VanHook’s uncontested testimony reveals that Ms. Armes’
attorney had knowledge of the will contest proceedings while these proceedings were still
pending. We glean from Mr. VanHook’s testimony that, although Mr. Wilkinson was in
contact with Ms. Armes, she chose to “wait and see” what happened in the will contest
rather than joining the lawsuit. It is a well settled Maxim of Equity that “[e]quity aids the
vigilant, not those who sleep upon their rights.” William H. Inman, Gibson’s Suits in
Chancery § 25 (7th ed. 1988). From our review of the record, the evidence does not
preponderate against the trial court’s conclusion that Ms. Armes was sufficiently aware
of the will contest proceedings, either through her own inquiry at the courthouse or
through her attorney, such that she could have participated in the lawsuit (or filed her
own lawsuit) had she chosen to do so.

                     B. Whether the Appellees Acted in Good Faith

       In McCartt I, this Court cited the case of Petty v. Call, 599 S.W.2d 791 (Tenn.
1980), in which the Tennessee Supreme Court stated:

       A will contest may be brought by any one interested party, and all other
       interested parties are free to join the contestant, join the proponent, or stand
       aloof. Those who are cast in the litigation may settle, if they do so in good
       faith, but any compromise of the contest will not inure to the benefit of the
       non-participating heirs, but on the other hand, if trial of the issue results in
       an adjudication that the will is invalid, the non-participating heirs take their
       respective shares of the intestate decedent’s estate.

Petty, 599 S.W.2d at 796 (emphasis added). On appeal, Ms. Armes argues that the trial
court did not make a specific finding that the Appellees acted in good faith in
participating in mediation and settlement of the will contest. Accordingly, Ms. Armes
contends that the trial court deviated from this Court’s mandate in McCartt I. We
disagree. Although we concede that the trial court did not specifically find that the
parties to the mediation acted in good faith, the trial court’s determination that the
participants had not subverted the will contest proceedings from Appellant, gives rise to a
reasonable inference of good faith. Our independent review of the evidence supports this
inference.

       Ms. Armes argues that she “didn’t participate [in the settlement agreement]
because she was not invited.” The fact, however, remains that Ms. Armes had sufficient
knowledge of the proceedings (see discussion supra), but chose not to participate in the
will contest. As such, she was never a party to that lawsuit and was, therefore, not
                                         - 10 -
entitled to notice of the substantive proceedings in the case, including the trial court’s
order requiring the will contest participants to mediate. Nonetheless, Ms. Armes
contends that the language, stating that “if any claims are filed by individuals asserting an
interest as an illegitimate child of J.D. McCartt, then the heirs of J.D. McCartt agree to
indemnify and hold harmless all other heirs of Vida Mae McCartt from any claims which
may be pursued by purported heirs at law of J.D. McCartt,” was intentionally included in
the settlement agreement in an attempt to preclude Ms. Armes from her rightful share of
Decedent’s estate. We disagree. In the first instance, the disputed language does not
preclude Ms. Armes from participation in the will contest, nor does it preclude her from
filing her own lawsuit. The language merely states that Appellees will indemnify
Decedent’s other heirs from any claims made by any of J.D. McCartt, Sr.’s unknown
heirs. Ms. Armes also argues that the heirs of J.D.McCartt, Sr. are specifically set out in
the settlement agreement to include only the Appellees despite the fact that the
contestants knew that Ms. Armes had been adjudicated as J.D.McCartt, Sr.’s biological
child. Again, Ms. Armes was not a party to the will contest; accordingly, only those heirs
of J.D.McCartt, who chose to participate in the will contest, were specifically listed in the
settlement agreement, to which they were parties. In her testimony, Susan Collins
explained:

       Q. And, so, in this agreement when the heirs of J.D.McCartt were identified
       as Joe McCartt, Susan Collins, and Nancy Wilson, why does it not include
       Sara Shannon Armes?
       A. Because she did not participate in the original Will Contest. We paid a
       lawyer to represent us. She could have done the same.


In view of our conclusion that Ms. Armes had opportunity to participate in the will
contest, but chose not to do so, we cannot infer, from the fact that her name was
specifically omitted from the enumerated list of J.D. McCartt Sr.’s heirs, that Appellees
were intentionally excluding Ms. Armes from Decedent’s estate. Under Petty, Ms.
Armes’s decision to “wait and see” could have worked to her advantage had the will been
invalidated; in that scenario, she would have taken as an heir at law. However, because
the contestants were able to reach an agreement, the benefit of that agreement did not
inure to Ms. Armes’ benefit because she was a “non-participating heir[],” having chosen
not to participate in the contest of Decedent’s will. Petty, 599 S.W.2d at 796.
       From the totality of the circumstances, it appears that the parties to the will contest
acted in good faith in reaching their settlement. There is no evidence to suggest that the
contestants’ inclusion of a list of participating heirs, or their inclusion of the
indemnification language was done for any purpose other than to protect their interests in
Decedent’s estate.



                                            - 11 -
                             C. Fraud or Misrepresentation

        The trial court determined that Appellees had not perpetrated any fraud or
misrepresentation on Ms. Armes. In the first instance, the contestants did not unilaterally
decide to mediate their lawsuit behind Ms. Armes’ back. Rather, the trial court entered
an order, on September 21, 2012, requiring mediation between the parties to the will
contest. Again, Ms. Armes’ was not a party to the will contest. As such, the contestants
were not required to include Ms. Armes in the mediation, which was exclusively by and
between the will contestants. Each of the Appellees testified that they had done nothing
to intentionally deceive or defraud Ms. Armes. Their testimony is corroborated by
Attorney VanHook, who testified, in relevant part, that “[a]s opposing counsel, I did not
see anything that [Appellees] said or did that would amount to some type of
misrepresentation or other types of direct or indirect fraud, active or passive
misrepresentation as far as Ms. Armes might be concerned.” Mr. VanHook explained
that the Appellees were not all of the heirs of J.D. McCartt, Sr., but were the ones that
had chosen to participate in the will contest. He further stated that had Ms. Armes chosen
to participate in the will contest, she would have received the same notices that the
contestants’ received. Nonetheless, Ms. Armes maintains that she was entitled to notice
of the mediation and that Appellees intentionally excluded her by not providing her with
this notice. In Tennessee, a will contest is a proceeding in rem and the res is the
decedent’s estate. All persons who have a claim in the event of testacy or intestacy have
a right to become parties. If they fail to do so, they are bound by the result. “In
Tennessee, the right to intervene in a Will Contest is not accompanied by the right to
notice of its filing.” Petty, 599 S.W.3d at 793; In re Estate of Sutton, No. E2013-00245-
COA-R3-CV, 2013 WL 6669385, *5 (Tenn. Ct. App. Dec. 17, 2013), perm. app. denied
(Tenn. May 15, 2014) (“[B]ecause a will contest is an in rem proceeding, its adjudication
is conclusive upon all heirs and . . . therefore the probate court is not required to join all
heirs in a will contest proceeding.”).

        The burden to show fraud is on Ms. Armes. Specifically, Ms. Armes must show
that Appellees made representations of material facts that were false, that Appellees knew
the representations were false, and that she was damaged by the misrepresentations. See
Walker v. Sunrise Pontiac-GMC Truck, Inc., 249 S.W.2d 301 (Tenn. 2008); Haynes v.
Cumberland Builders, Inc., 546 S.W.2d 228 (Tenn. Ct. App. 1976). From our review of
the record, Ms. Armes has failed to meet her burden of proof concerning her allegations
of fraud. The logical explanation for the lack of notice of the will contest and settlement
negotiations is simply that Ms. Armes was not a party to the lawsuit. As such, she was
not entitled to notice. Therefore, the lack of notice, without more, cannot form the basis
for a finding of fraud on the part of Appellees. From the totality of the circumstance, the
evidence does not preponderate against the trial court’s finding that “each of the parties to
the Will Contest were simply protecting their own interest, without any intent to
misrepresent or defraud Sara Armes, who could have participated in the Will Contest, if
she had chosen to do so. . . .”
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                                    V. Conclusion

       For the foregoing reasons, we affirm the order of the trial court. The case is
remanded for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are assessed against the Appellant, Sara Shannon Armes and
her surety, for all of which execution may issue if necessary.




                                                 _________________________________
                                                 KENNY ARMSTRONG, JUDGE




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