                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                    August 21, 2003 Session

                         IN RE: ESTATE OF ILENE S. RAMEY

                     Appeal from the Chancery Court for Sullivan County
                       No. C0016438     Richard E. Ladd, Chancellor

                                    FILED JANUARY 8, 2004

                                  No. E2003-00544-COA-R3-CV


         At issue in this appeal is whether this will contest action, brought by Tommy Snapp and
Eddie Snapp as intestate heirs at law, is barred by the applicable two-year statute of limitations found
at T.C.A. 32-4-108. Plaintiffs have challenged the validity of the will of Ilene S. Ramey on grounds
that it was executed outside the presence of two witnesses as required by T.C.A. 32-1-104. In their
complaint they allege that the witnesses to the will were wrongfully coerced by their employment
supervisor, Defendant Sherri H. Jones, to sign affidavits falsely stating that they were in the presence
of Ms. Ramey when she executed her will. The Trial Court held the action to be time-barred because
it was filed more than three years after admission of the will to probate, ruling that “under the
authority of Phillips v. Phillips, 526 S.W.2d 439 (Tenn.1975), the Complaint alleges no facts that
could amount to a concealment of the claim.” The Court dismissed the complaint under
Tenn.R.Civ.P. 12.02(6) for failure to state a claim upon which relief can be granted. We affirm.

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

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
CHARLES D. SUSANO, JR., JJ., joined.

Michael A. Eastridge, Johnson City, for the Appellants, Tommy Snapp and Eddie Snapp

Robert L. Arrington, Kingsport, for the Appellee, Sherri H. Jones

                                              OPINION

       The Plaintiffs filed their complaint on November 12, 2002. It alleges the following, as
quoted verbatim in relevant part:

                1. Ilene S. Ramey executed a document purporting to be her Last
                Will and Testament dated April 20, 1998 outside the presence of two
                witnesses as prescribed by statute, T.C.A. 32-1-104.
               2. Ilene S. Ramey died on June 5, 1999. Tommy Snapp and Eddie
               Snapp are interested parties as intestate heirs at law of the estate of
               Ilene S. Ramey.
               3. The Estate of Ilene S. Ramey was opened under Case Number P-
               99-10561 on July 23, 1999 by the appointment of Executor, Sherri H.
               Jones.
               4. The witnesses, Leslie Hubbard, Rebeccah Segrest, and Julie
               Workman were wrongfully coerced by their employment supervisor,
               Sherri H. Jones, in signing the Last Will and Testament of Ilene S.
               Ramey, outside the presence of Ilene S. Ramey, and were further
               coerced in executing affidavit[s] on June 14, 1999 stating that they
               were in fact in the presence of the testatrix, Ilene S. Ramey, and in the
               presence of each other upon the execution of her Will.
               5. Sherri H. Jones has fraudulently concealed the true nature of the
               lawfully prescribed disposition of the decedent’s estate by knowingly
               and fraudulently presenting an invalid Will to be administered
               through the Probate Court of Sullivan County, Tennessee, Chancery
               Division.

        The Defendant, Ms. Jones, filed a Tenn.R.Civ.P. 12.02(6) motion to dismiss which alleged
that “from the face of the Complaint, that this action is barred by the statute of limitations set forth
in Tenn. Code Ann. 32-4-108, as interpreted by the Supreme Court of Tennessee in the case of
Phillips v. Phillips, 526 S.W.2d 439 (Tenn.1975).” After a hearing held on January 10, 2003, the
Trial Court granted Defendant’s motion. The Plaintiffs appeal, raising the issue, which we restate,
of whether the Trial Court erred in failing to find that the statute of limitations should be tolled due
to the alleged fraudulent concealment in procuring the affidavits as alleged in the complaint quoted
above.

       The Supreme Court has stated the following as regards our standard of review in this case
in Doe v. Sundquist, 2 S.W.3d 919 (Tenn. 1999):

               This case is on appeal from the trial court's dismissal of the plaintiffs'
               suit for failure to state a claim upon which relief can be granted.
               Tenn. R. Civ. P. 12.02(6). A Rule 12.02(6) motion tests the legal
               sufficiency of the plaintiff's complaint and not the strength of the
               plaintiff's evidence. Riggs v. Burson, 941 S.W.2d 44, 47
               (Tenn.1997). In ruling on such a motion, courts must construe the
               complaint in favor of the plaintiff, accept the allegations of fact as
               true, and deny the motion unless it appears that the plaintiff can
               establish no facts supporting the claim that would warrant relief. Id.
               When the trial court's grant of a Rule 12.02(6) motion to dismiss is
               appealed, we must take the factual allegations contained in the
               complaint as true and review the lower court's legal conclusions de


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               novo without a presumption of correctness. Stein v. Davidson Hotel
               Co., 945 S.W.2d 714, 716 (Tenn.1997).

Doe v. Sundquist, 2 S.W.3d at page 922.

         Both parties cite Phillips v. Phillips, 526 S.W.2d 439 (Tenn.1975) as controlling authority
in this case, and each party argues that it supports his or her respective position. The Phillips court
stated as follows in relevant part:

               In considering general statutes of limitation, this court has recognized
               an exception not voiced in the statutes and which tolls the statute
               where, due to fraudulent concealment, a plaintiff is unaware of his
               cause of action. Woodfolk v. Marley, 98 Tenn. 467, 40 S.W. 479;
               Porter's Lessee v. Cocke, 7 Tenn. 30; Shelby's Heirs v. Shelby, 3
               Tenn. 179. However, while fraudulent concealment of a cause of
               action will toll a general statute of limitations, fraud in and of itself
               will not.
                       'It is not the fraud, but its concealment by the party
                       perpetrating it, unmixed with fault or negligence on
                       the part of him who complains, which works this
                       result.' Woodfolk v. Marley, 98 Tenn. 467, 471, 40
                       S.W. 479, 480 (1896).

                        We know of no basic reason why the fraudulent concealment
               exception should not be applicable to the special statute of limitations
               voiced in T.C.A. 32--410. However, in this case no facts are alleged
               which would support a finding of fraudulent concealment. To the
               contrary, the record shows there was no concealment of the will of
               Mabel May Phillips or of the signature on the will. The will was of
               public record for more than nine years before plaintiffs filed this
               action. Being of public record, the will was available at all times for
               examination by the plaintiffs or any handwriting expert chosen by
               them. The plaintiffs, however, elected not to make inquiry into the
               authenticity of the will until after the death of their brother, E. T.
               Phillips, who was the principal beneficiary of the will of Mabel May
               Phillips. By then, the seven year limitation on the bringing of actions
               to set aside the probate of a will had passed and plaintiffs' action was
               barred.

Phillips, 526 S.W.2d at page 440.

       The pertinent statute, T.C.A. 32-4-108, has been amended subsequent to the Phillips
decision to shorten the limitations period from seven to two years. It states as follows:


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               All actions or proceedings to set aside the probate of any will, or
               petitions to certify such will for an issue of devisavit vel non, must be
               brought within two (2) years from entry of the order admitting the
               will to probate, or be forever barred, saving, however, to persons
               under the age of eighteen (18) years or of unsound mind, at the time
               the cause of action accrues, the rights conferred by § 28-1-106.

        Although the facts in the Phillips case are slightly different from those here, in that the will
in Phillips was alleged to be a forgery and the will in this case is alleged to be invalid due to a lack
of attesting witnesses, we find Phillips to be controlling and indistinguishable. We agree with the
Trial Court that the complaint sets forth no facts which would support an allegation of fraudulent
concealment. Similar to Phillips, the will in the present case was of public record for more than two
years following its admission, as were the affidavits containing the signatures allegedly fraudulently
obtained. There is no allegation that the Defendant concealed anything subsequent to the time the
will was admitted to probate, which is the event triggering the beginning of the limitations period.

       For the foregoing reasons the judgment of the Trial Court is affirmed, the complaint
dismissed and the cause remanded for collection of costs below which are, as are costs of appeal,
adjudged against the Appellants, Tommy Snapp and Eddie Snapp, and their surety.




                                               _________________________________________
                                               HOUSTON M. GODDARD, PRESIDING JUDGE




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