                                                                                        12/19/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                               October 18, 2018 Session

       JAMES MCDONALD SHEA BROWN JR. v. JOHN F WEAVER

                   Appeal from the Circuit Court for Knox County
                   No. 3-160-17 Robert E. Lee Davies, Senior Judge
                      ___________________________________

                           No. E2018-00783-COA-R3-CV
                       ___________________________________


Appellant, a beneficiary under the will of Decedent, brought this action in 2017 to
recover funds that Appellee allegedly improperly safeguarded when he served as
conservator for Decedent in 1980. On Appellee’s motion to dismiss, the trial court
granted the motion finding that the complaint failed to state a claim upon which relief
could be granted. The trial court also found that any cause of action arising from
Appellee’s conduct as conservator was barred by the statute of limitations. Appellant
then filed a motion to reconsider. Following a hearing, the trial court denied Appellant’s
motion finding that Appellant’s action was barred by the statute of limitations.
Discerning no error, we affirm.


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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which JOHN W.
MCCLARTY, J. and D. KELLY THOMAS, JR., SP. J., joined.

Arthur C. Grisham, Jr., Chattanooga, Tennessee, for the appellant, James McDonald Shea
Brown, Jr.

James S. Tipton, Jr., Knoxville, Tennessee, for the appellee, John F. Weaver.


                                       OPINION

                                  I.     Background

      In April 1978, Appellee John F. Weaver was appointed conservator for Stella Jean
Brown (“Decedent”). In 1980, Jackie Reneau, an employee of Mr. Weaver’s law firm,
stole 54 checks on Ms. Brown’s account and made those checks totaling $27,391.88
payable to herself, signing Mr. Weaver’s name as payor. These thefts took place over a
four month period before Mr. Weaver discovered the forgeries. Upon Mr. Weaver’s
discovery of the forgeries, Ms. Reneau made one restitution payment of $1,148.96.
Because the bank refused to credit Ms. Brown’s account for the forged checks, Mr.
Weaver hired an attorney to file an action against the bank for wrongfully honoring the
forged checks. The bank ultimately paid $24,142.92. Following collection of these
funds from the bank, Mr. Weaver filed a petition in Chancery Court, in October 1984,
requesting the court to approve two distributions from Ms. Brown’s conservatorship
account: a fee for himself in the amount of $2,867.70 and a fee in the amount of
$8,000.00 plus expenses for attorney’s fees associated with the lawsuit filed against the
bank.1 By order entered October 19, 1984, the Chancery Court judge granted Mr.
Weaver’s petition for fees. Subsequently, in 1993, Mr. Weaver became Clerk and Master
of Knox County Chancery Court and a new conservator was appointed to handle Ms.
Brown’s affairs.

        Ms. Brown died on November 1, 2011. After her death, Appellant James
McDonald Shea Brown, Jr., one of the beneficiaries of Ms. Brown’s estate, received
notice of the proceeding in chancery court to establish a lost will of Ms. Brown. In
August 2013, Mr. Brown attempted to review Ms. Brown’s conservatorship file but was
denied access to the file by the clerk’s office, not by Mr. Weaver who, at that time, was a
judge in Chancery Court. On May 14, 2014, Mr. Brown returned to Chancery Court with
his attorney and was granted access to the conservatorship file.

       On May 10, 2017, Appellant filed a complaint in the trial court accusing Appellee
of committing a fraud upon the court when he was conservator for Stella Jean Brown in
the 1980s. Specifically, Appellant alleged that

       [i]n the process of reviewing the conservatorship file, [Appellant] learned
       of [Appellee’s] negligent and wrongful acts and misrepresentations
       regarding the forged checks and of his being paid out of the estate of his
       ward, Stella Jean Brown, for the time spent in recovering the funds caused
       by his negligence, wrongful and fraudulent acts.

The complaint requested compensatory damages in excess of $150,000 plus unspecified
punitive damages. The request for such damages was not on behalf of the Decedent’s
estate, but on behalf of Appellant. In his complaint, Appellant alleged that any cause of
action that Decedent had passed to her heirs upon her death. Although the actions alleged
in the complaint occurred over 30 years ago, Appellant averred that his complaint was

       1
        It is unclear from the record whether Mr. Weaver requested the $2,867.70 as a fee for recouping
Ms. Brown’s funds from the bank or as part of his regular conservator’s fee.
                                                 -2-
timely because it was filed within three years of his discovery of Appellee’s purportedly
wrongful acts.

       In June 2017, Appellee filed a motion to dismiss under Rule 12.02(6). Appellee’s
motion alleged the following: (1) The complaint attempts to set forth an action for fraud
on the court by which the plaintiff can recover damages; however, the State of Tennessee
recognizes no such cause of action; (2) The complaint constitutes an impermissible
collateral attack on a valid order of the Chancery Court; (3) The complaint does not show
that the plaintiff is the owner of the purported claim or has standing; (4) The action is
barred by Tennessee Code Annotated section 28-1-106; and (5) The action is barred by
Tennessee Rule Civil Procedure 60.02.

        On December 29, 2017, the trial court entered an order granting Appellee’s motion
to dismiss for failure to state a claim. The order also states that the statute of limitations
for intentional misrepresentation ran three years after the death of decedent, and that any
cause of action against Appellee became barred as of November 1, 2014. As mentioned
supra, the instant complaint was filed on May 10, 2017, some five and a half years after
Ms. Brown’s death.

        On January 22, 2018, Appellant filed a motion to reconsider the trial court’s order
dismissing his complaint.2 Appellant argued in his motion that the trial court erroneously
characterized his complaint as a fraud on the court by Appellee. Instead, Appellant
contended that his complaint alleged that Appellee “committed a wrongful act against his
ward, Stella Jean Brown, while acting as her conservator, and should be required to
answer, account, and make amends and atone for the wrong done to his ward and her
estate.” On April 2, 2018, the trial court entered an order denying Appellant’s motion to
reconsider again finding that the statute of limitations, which ran on November 1, 2014,
barred the action filed by Appellant on May 10, 2017. Appellant appealed but only
designated the order on the motion to reconsider in his notice of appeal.

                                           II.    Issues

       Although Appellee raises five issues on appeal, we only reach one dispositive
issue, which is whether the trial court erred in ruling that the complaint was barred by the
three year statute of limitations following the death of the decedent.

                                    III. Standard of Review

2
  The Tennessee Rules of Civil Procedure do not recognize a Motion to Reconsider. Accordingly, a
motion captioned as a Motion to Reconsider should be treated as a Motion to Alter or Amend under Rule
59.04 of the Tennessee Rules of Civil Procedure. Howell v. Ryerkerk, 372 S.W.3d 576, 579 (Tenn. Ct.
App. 2012) (citing Tennessee Farmers Mut. Ins. Co. v. Farmer, 970 S.W.2d 453 (Tenn. 1998)).

                                                 -3-
       Generally, we review a trial court’s ruling on a motion to alter or amend a
judgment filed pursuant to Tennessee Rule of Civil Procedure 59.04 under the abuse of
discretion standard. Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003); Linkous v.
Lane, 276 S.W.3d 917, 924 (Tenn. Ct. App. 2008). Abuse of discretion is found “only
when the trial court applied incorrect legal standards, reached an illogical conclusion,
based its decision on a clearly erroneous assessment of the evidence, or employed
reasoning that causes an injustice to the complaining party.” State v. Jordan, 325 S.W.3d
1, 39 (Tenn. 2010) (quoting State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008)). The
abuse of discretion standard does not permit an appellate court to merely substitute its
judgment for that of the trial court. See Henry v. Goins, 104 S.W.3d 475, 479 (Tenn.
2003); Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001). Instead, “[u]nder the abuse
of discretion standard, a trial court’s ruling will be upheld so long as reasonable minds
can disagree as to [the] propriety of the decision made.” Discover Bank v. Morgan, 363
S.W.3d 479, 487 (Tenn. 2012) (quoting Eldridge, 42 S.W.3d at 85).

       Here, we must first address whether Appellant’s complaint is barred by the statute
of limitations. Whether a claim is barred by an applicable statute of limitations is a
question of law. Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn. 2007);
Owens v. Truckstops of Am., 915 S.W.2d 420, 424 (Tenn. 1996). We review the trial
court’s resolution of questions of law de novo, with no presumption of correctness. Kelly
v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014); Armbrister v. Armbrister, 414 S.W.3d at
692.
                                      IV. Analysis

       Appellee argues that Appellant’s action is barred by Tennessee Code Annotated
section 28-1-106, which states in pertinent part:

      (c)(1) If the person entitled to commence an action, at the time the cause of
      action accrued, lacks capacity, such person or such person’s representatives
      and privies, as the case may be, may commence the action, after removal of
      such incapacity, 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 removal of such incapacity, except as provided for in
      subdivision (c)(2).

      (2) Any individual with court-ordered fiduciary responsibility towards a
      person who lacks capacity, or any individual who possesses the legal right
      to bring suit on behalf of a person who lacks capacity, shall commence the
      action on behalf of that person within the applicable statute of limitations
      and may not rely on any tolling of the statute of limitations, unless that
      individual can establish by clear and convincing evidence that the

                                          -4-
       individual did not and could not reasonably have known of the accrued
       cause of action.

Tenn. Code Ann. § 28-1-106(c)(1)(2). In analyzing this statute, the Tennessee Supreme
Court has concluded that “[t]he tolling ends when ‘such disability’ is removed. . . . The
disability of unsound mind is removed when the individual is no longer of unsound mind,
due either to a change in the individual’s condition or the individual’s death.” Abels ex
rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99, 105 (Tenn. 2006). Here, it is undisputed
that Ms. Brown lacked capacity from April 7, 1978, when Appellee was appointed as her
conservator until her death on November 1, 2011. Although the trial court did not cite a
specific statute for the claim alleged by Appellant in determining that the statute of
limitations had expired, neither party contends that the applicable statute of limitations
exceeds three years after removal of incapacity, without relying on an exception to the
tolling of the statute of limitations. In denying Appellant’s motion to reconsider, the trial
court stated:

       the action is clearly barred by the statute of limitations based upon the date
       of death of the decedent, Ms. Brown. That would have run November 1,
       2014. The only way it could be tolled would be if there was some type of
       fraudulent concealment on the part of [Mr.] Weaver that prevented
       [Appellant] from discovering the fraud that he alleges was committed.

“A defense predicated on the statute of limitations triggers the consideration of three
components—the length of the limitations period, the accrual of the cause of action, and
the applicability of any relevant tolling doctrines. All of these elements are inter-related
and, therefore, should not be considered in isolation.” Redwing v. Catholic Bishop for
Diocese of Memphis, 363 S.W.3d 436, 456 (Tenn. 2012). While the burden of proof is
on the party asserting the statute of limitations to show the bar, when that showing is
made, the burden shifts to the other party to show an exception. Coffey v. Coffey, No.
E2017-00988-COA-R3-CV, 2018 WL 4519988, at *7 (Tenn. Ct. App. Sept. 20, 2018)
(citing Redwing, 363 S.W. 3d at 456). In this case, Appellant alleged that any cause of
action belonging to Decedent passed to her heirs upon her death. Appellant’s complaint
does not set forth the familial relationship between Decedent and himself, and instead
simply alleges that he is a beneficiary under her will. Although the actions alleged in
Appellant’s complaint took place over 30 years ago, Appellant argues that his complaint
is timely because it was filed within three years of his discovery of Appellee’s allegedly
wrongful acts.

       It is well-established that the discovery rule “is an equitable exception that tolls
the running of the statute of limitations until the plaintiff knows, or in the exercise of
reasonable care and diligence, should know that an injury has been sustained.” Pero’s
Steak and Spaghetti House v. Lee, 90 S.W.3d 614, 621 (Tenn. 2002) (citations omitted).
The purpose of the discovery rule is to prevent the inequitable result of “strict
                                            -5-
application” of the statute of limitations, which would require plaintiffs “to vindicate a
non-existent wrong, at a time when the injury is unknown and unknowable.” Smith v.
Hauck, 469 S.W.3d 564, 569-70 (Tenn. Ct. App. 2015) (quoting Pero’s, 90 S.W.3d at
621). In 1975, the Tennessee Supreme Court extended the discovery rule to “all tort
actions predicated on negligence, strict liability, or misrepresentation.” Doe v. Coffee
County Bd. of Educ., 852 S.W.2d 899, 904 (Tenn. Ct. App. 1992) (citing McCroskey v.
Bryant Air Conditioning Co., 524 S.W.2d 487, 491 (Tenn. 1975)).

        The concept of accrual, “relates to the date on which the applicable statute of
limitations begins to run.” Redwing, 363 S.W.3d at 457 (citing Columbian Mut. Life Ins.
Co. v. Martin, 175 Tenn. 517, 526, 136 S.W.2d 52, 56 (1940)). Under the current
discovery rule, a cause of action accrues and the statute of limitations begins to run when
the plaintiff has either actual or constructive knowledge of a claim. Robinson v. Baptist
Mem’l Hosp., 464 S.W.3d 599, 607-08 (Tenn. Ct. App. 2014). Inquiry notice and
constructive notice “charge[ ] a plaintiff with knowledge of those facts that a reasonable
investigation would have disclosed.” Redwing, 363 S.W.3d at 459 (quoting Sherrill v.
Souder, 325 S.W.3d 584, 593 n. 7 (Tenn. 2010); Smith, 469 S.W.3d at 571. Usually,
whether a party exercised reasonable care and diligence in discovering the injury is a
question of fact. Wyatt v. A-Best Co., 910 S.W.2d 851,854 (Tenn. 1995). However,
where the complaint does not allege that the injured party or the injured party’s
representative could not have known of the injury resulting from the wrongful conduct of
another, while exercising reasonable care and diligence, judgment on the pleadings or
dismissal of the complaint is appropriate. See Schmank v. Sonic Automotive, Inc., No.
E2007-01857-COA-R3-CV, 2008 WL 2078076, at *3 (Tenn. Ct. App. May 16, 2008).

       “In a discovery rule case, the plaintiff may claim that the defendant intentionally
prevented him from discovering his injury. Where that claim is proved true, the doctrine
of ‘fraudulent concealment’ applies.” Redwing, 363 S.W.3d at 462 (fn 26) (quoting
Fahrner v. SW Mfg., Inc., 48 S.W.3d at 145). For over a century now, Tennessee’s
courts have held that the doctrine of fraudulent concealment will toll the running of a
statute of limitations. In re Estate of Davis, 308 S.W.3d 832, 841 (Tenn. 2010);
Woodfolk v. Marley, 98 Tenn. 467, 471, 40 S.W. 479, 480 (1897). This doctrine is one
of the oldest exceptions to the statute of limitations. Redwing, 363 S.W.3d at 461-62; see
Bailey v. Glover, 88 U.S. 342, 348-49, 21 Wall. 342, 22 L.Ed. 636 (1874).

       “The statute of limitations is tolled until the plaintiff discovers or, in the exercise
of reasonable diligence, should have discovered the defendant’s fraudulent concealment.”
Redwing, 363 S.W.3d at 463; Vandergriff v. ParkRidge E. Hosp., 482 S.W.3d 545, 556
(Tenn. Ct. App. 2015). At the point when the injured party discovers or should have
discovered the fraudulent concealment or sufficient facts to put the injured party on
actual or inquiry notice of the claim, the original statute of limitations begins to run anew,
and the injured party must file a claim within the statutory limitations period. Robinson,
464 S.W.3d at 608-09 (citing Redwing, 363 S.W. 3d at 463). Therefore, the doctrine of
                                             -6-
fraudulent concealment only tolls the statute of limitations when the defendant
purposefully engages in conduct intended to conceal the plaintiff’s injury or the identity
of the person who caused the plaintiff’s injury. See Redwing, 363 S.W.3d at 462. As
noted above, “[f]or the purposes of both the discovery rule and the doctrine of fraudulent
concealment, the pivotal issue is whether [Appellant] would have discovered
[Appellee’s] allegedly wrongful acts had he exercised reasonable care and diligence.”
Robinson, 464 S.W.3d at 608-09.

       Here, Appellant argues that Appellee fraudulently concealed information
regarding the theft of funds from Ms. Brown’s account by Appellee’s employee. A party
invoking the fraudulent concealment doctrine must allege and prove four elements:

      (1) that the defendant affirmatively concealed the plaintiff's injury or the
      identity of the wrongdoer or failed to disclose material facts regarding the
      injury or the wrongdoer despite a duty to do so;
      (2) that the plaintiff could not have discovered the injury or the identity of
      the wrongdoer despite reasonable care and diligence;
      (3) that the defendant knew that the plaintiff had been injured and the
      identity of the wrongdoer; and
      (4) that the defendant concealed material information from the plaintiff by
      withholding information or making use of some device to mislead the
      plaintiff in order to exclude suspicion or prevent inquiry.

Robinson, 464 S.W.3d at 608-09. Appellant’s only allegation in his complaint that seeks
to demonstrate that Appellee fraudulently concealed the theft from Decedent’s account is
the following:

      [Appellee] wrongfully failed to disclose to the court that the loss to the
      estate had been caused by the forgery of his own employee, failed to
      disclose that he had failed to adequately secure the checks for the
      conservator’s account, and failed to disclose that he had failed to discover
      the forgeries over a period of four months.

However, taking these allegations in Appellant’s complaint as true, we note that
Appellant also alleged the following in his complaint

      [i]n the process of reviewing the conservatorship file, [Appellant] learned
      of [Appellee’s] negligent and wrongful acts and misrepresentations
      regarding the forged checks and of his being paid out of the estate of his
      ward, Stella Jean Brown, for the time spent in recovering the funds caused
      by his negligence, wrongful and fraudulent acts.


                                          -7-
In its ruling on the motion to reconsider, the trial court made the following determination
concerning the complaint:

       The complaint goes on to say that the [Appellant] discovered the fraud in
       the Chancery Court file, so I cannot say that there was fraudulent
       concealment that prevented the plaintiff from discovering anything since
       there was no intentional conduct that kept the plaintiff from doing that.

We agree. All of the facts surrounding the loss of funds from the Decedent’s
conservatorship account were contained in the Chancery Court file. These facts were
disclosed to and relied on by the Chancery Court judge in approving the attorney’s fee
incurred in recovering the funds from the bank. Decedent’s subsequent conservator,
appointed after Appellee became Clerk and Master, also had available to him all of the
records concerning this matter. This is not to suggest that any knowledge concerning the
loss of funds known or discoverable by the new conservator was also the knowledge of
the Decedent. See Abels ex rel. Hunt v. Genie Indus., Inc., 202 S.W.3d 99 (Tenn.
2006). Instead, this simply illustrates that the conservatorship file was available for
inspection by the new conservator in the 1990s and that the information concerning the
forgery and the recovery of the funds was not concealed by Appellee. Turning to
Appellant’s complaint, there are no allegations in the complaint detailing specific actions
taken by Appellee to conceal the records concerning the loss to Decedent’s account. As
such, Appellant’s complaint is legally insufficient to support a finding that the Appellee
took affirmative steps to conceal any wrongful acts against the Decedent.

        We turn now to the question of discovery of the purported claim, which is
inextricably linked to the doctrine of fraudulent concealment. At the outset, we note that
Appellant does not allege any facts in his complaint that indicate he could not have
timely discovered Appellee’s actions through the exercise of reasonable care and
diligence. Tennessee Code Annotated section 28-1-106(c)(2) specifically requires
Appellant to “establish by clear and convincing evidence that [he] did not and could not
reasonably have known of the accrued cause of action.” Here, the entire Chancery Court
file, including the complaint and order concerning the lost funds, as well as required
accountings filed by Appellee were available as a public record. Moreover, the facts
relied on by Appellant to bring this action were readily discovered following a single
examination of the conservatorship file. This examination could have been conducted
earlier. Nonetheless, Appellant’s examination of the conservatorship file occurred well
before the statute of limitations expired. Appellant’s review of the conservatorship file in
May of 2014, clearly demonstrates that the information regarding the theft from
Decedent’s account, including the identity of the thief, the amount of the theft, and how
the theft transpired, as well as Appellee’s role in recouping the stolen funds was readily
discoverable by Appellant. However, after learning of Appellee’s actions within three
years of Decedent’s death, Appellant waited an additional two years and fifty-one weeks
to file his complaint. As discussed herein, Tennessee Code Annotated section 28-1-106
                                            -8-
allows the commencement of an action “after removal of . . . incapacity, 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 removal of such incapacity.” Here, without proof of
an exception that tolled the statute of limitations, the maximum amount of time in which
to file a complaint against Appellee was three years from Decedent’s death. From our
review, the complaint in this case fails to assert that the Appellant could not have
discovered the claim against Appellee despite reasonable care and diligence on his part.
Having failed to set forth sufficient allegations to support a finding of fraudulent
concealment or that in the exercise of reasonable care and diligence that he could not
have known of the Appellee’s alleged wrongful acts, dismissal of Appellant’s complaint
is appropriate. Consequently, we conclude that the trial court did not err in denying
Appellant’s motion to reconsider finding that the statute of limitations had expired.

                                   V.     Conclusion

      For the foregoing reasons, we affirm the trial court’s judgment. The case is
remanded to the trial court for further proceedings as may be necessary and are consistent
with this Opinion. Costs on the appeal are assessed against the Appellant, James
MacDonald Shea Brown, Jr., and his surety, for all of which execution may issue if
necessary.



                                                 _________________________________
                                                 KENNY ARMSTRONG, JUDGE




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